AKMV Property acquired after divorce – who has what claims?
QUESTION
Our marriage was divorced in 2018. We have not yet settled the community property of spouses (BSM). My ex-husband remained living in the family house, which he received as a gift before the conclusion of the marriage. In 2017, we took out a mortgage, which is secured by his house and where I am registered as a co-debtor. I would like to arrange my own housing (a family house). In the event that I am the sole owner of the new house, can my ex-husband make a claim to it during the settlement of the BSM, given that we have not yet settled the BSM?
ANSWER:
No, the settlement of the BSM will concern only property that was in the community property of spouses (BSM). If you acquire real estate after the divorce, the real estate will not belong to the BSM. Even though you do not have the BSM settled (whether by a BSM settlement agreement or through judicial proceedings), your newly acquired house will not belong to it, as the BSM already dissolved upon the divorce of the marriage. This follows from Section 143 of the Civil Code, which states that: “The community property of spouses comprises everything that may be the subject of ownership and that was acquired by either of the spouses during the duration of the marriage, with the exception of things obtained by inheritance or as a gift, as well as things which, by their nature, serve the personal needs or the exercise of the profession of only one of the spouses, and things restored under the regulations on the restitution of property to one of the spouses who owned the restored thing prior to the conclusion of the marriage or to whom the thing was restored as the legal successor of the original owner.”
We also draw attention to the case where the BSM was not settled within 3 years from the dissolution of the marriage.
With respect to debts incurred during the duration of the marriage, we bring to your attention the decision of the Supreme Court of the Czech Republic, Case No. 3Cz 39/74, according to which: “The Civil Code has no provisions on how common debts and receivables of spouses, which arose during the duration of the community property in connection with the consumer and property community of both spouses, are to be settled. It is therefore necessary to apply the provisions that regulate relationships closest to them in content and purpose (Section 496 of the Civil Code), i.e., the provisions of Section 149 and Section 150 of the Civil Code. Spouses should, in principle, participate in common debts in the same proportion in which they participate in common property.”
JUDr. Veronika Michalíková, MBA