Property gifted during marriage

A gift addressed to only one of the spouses is not part of the BSM (undivided co-ownership of spouses) but is in the exclusive ownership of the gifted spouse. The exclusion of gifts from the BSM is regulated by the Civil Code, which states that the BSM does not include:

• things acquired by gift

• things acquired by inheritance (if only one spouse inherits something, this inherited property does not fall into the BSM)

• things which, by their nature, serve the personal needs or the exercise of the profession of only one of the spouses

• things restored under restitution to a spouse who owned the thing before the marriage, or to their legal successor (e.g., an heir)

If a spouse, who was gifted financial funds during the marriage, uses them to procure another thing (buys something), this thing will belong exclusively to that spouse and will not belong to the BSM.

A specific situation arises with a loan, provided that the loan is negotiated by only one spouse. If a thing is procured with the loan, this thing will belong to the BSM, regardless of the fact that part of the loan was repaid by one of the spouses from their exclusive funds not falling into the BSM. This follows, for example, from the decision of the Supreme Court of the Czech Republic, Case File No. 8 Cz 36/69, R 57/1970, which says that „if a debt arose during the marriage for which only one of the spouses was bound, who, for example, concluded a loan contract in their own name, and if the money obtained in this way was used to buy a certain thing, i.e., a certain property value was acquired with it, this value also belongs – upon fulfillment of the other conditions specified in Section 143 of the Civil Code and regardless of whether the loan contract was concluded validly – to the undivided co-ownership.“ See also the judgment of the Supreme Court of the CR, dated January 7, 2008, Case File No. 22 Cdo 3596/2006.

Things (e.g., money) can also be gifted to both spouses. If they were to buy a new thing with jointly gifted money, this will, of course, also fall into the BSM. „If the spouses bought a thing during the marriage using financial funds that originated from a joint loan, from gifts, and from joint savings, this thing became the subject of the undivided co-ownership of the spouses within the meaning of the provision of Section 143 of the Civil Code.“ (Decision of the Supreme Court of the SR, Case File No. 3 Cz 57/78).

Regarding the question you asked concerning the undivided co-ownership of spouses (hereinafter referred to as the “BSM”), we allow ourselves to state the following in general terms:

If the house was acquired only by the wife, the husband will not have a claim to it during the settlement of the BSM.

Act No. 40/1964 Coll., the Civil Code, as amended (hereinafter referred to as the “Civil Code”), states in Section 143: „The undivided co-ownership of spouses includes everything that can be the subject of ownership and that was acquired by either of the spouses during the marriage, with the exception of things acquired by inheritance or gift…“ Things acquired by inheritance as well as by gift thus represent exceptions to acquisition into the BSM according to the cited provision.

If, during the duration of the BSM, only one of the spouses acquires certain property (e.g., a family house) in inheritance proceedings, this will subsequently belong to the exclusive ownership of that spouse. A different situation would arise if both spouses acquired the inheritance: „In the event that the inheritance is acquired by both spouses, the property obtained in this way will be in the tenancy in common [podielové spoluvlastníctvo] of the spouses.“ (ŠTEVČEK, M. et al. Civil Code I. Sections 1 – 450. Commentary. Praha : C. H. Beck, 2015).

Therefore, if only one of the spouses inherits property during the duration of the BSM, in the event of a divorce, such inherited property would not be the subject of proceedings for the settlement of the BSM, and the other spouse would have no legal claim to the property in question.

Court Approval of a Legal Act of a Minor

Given that things acquired in inheritance proceedings by only one of the spouses are subsequently in their exclusive ownership, this spouse does not need the consent of the other spouse for legal acts concerning such property. A legal act by the spouse who inherited this property, consisting of gifting this property to their children, would thus not be conditional on the consent of the other spouse.

However, if it involved minor children, the approval of the court would be required – the approval of a legal act of a minor, as a minor cannot independently sign a deed of gift. The court will examine whether the legal act (the deed of gift) and the gifting itself are in the best interest of the minor child.