Settlement of Property After Divorce

What rights does the wife have to the properties that are registered in my name? Property not included in BSM [joint ownership of spouses] will not be subject to BSM settlement after the divorce.

My wife does not want to leave the house; I do not want to kick her out, but what can I do if she does not leave? Spouses have a mutual maintenance obligation (we wrote more about this in our advice column: Maintenance obligation between spouses). We also wrote in the article: The wife’s right to use a property owned by the husband, where we pointed to the judgment of the Supreme Court of the Czech Republic dated June 7, 2006, Case No. Cdo 1544/2005, which states: “A spouse who, during the marriage, uses an apartment in a house owned by the other spouse derives their right to live in this apartment from the existing family-law relationship…, because the content of this relationship is formed, among other things, by the obligation of the spouses to live together… and the mutual maintenance obligation of the spouses. On this basis, the non-owner spouse has the right to live with their spouse in the apartment located in the house owned by the other spouse, and the other spouse (owner) has the obligation to allow them this housing (use of the apartment). Upon the divorce of the marriage, the mentioned legal reason for housing expires, and the spouse (owner) may seek the evacuation of the apartment according to Section 126, Paragraph 1 of the CC. The entitlement to housing compensation for a divorced spouse whose legal reason for using an apartment owned by the other spouse expired upon the divorce, and who is therefore obliged to evacuate the apartment, is not explicitly regulated in the Civil Code; however, this does not mean that the divorced spouse is not entitled to housing compensation in such a case. Their legal position upon the expiration of their legal reason for housing must be assessed analogously (Section 853 of the CC) according to that provision of the Civil Code which regulates legal relationships closest in content and purpose. This provision is Section 713, Paragraph 1 of the CC, regulating the entitlement to housing compensation for a divorced spouse whose legal reason for using the apartment was—just as in the case of a spouse using an apartment in a house owned by the other spouse—derived from the existence of the marriage during its duration, and for whom this legal reason for housing expired upon divorce.”

CONCLUSION: You cannot cancel your wife’s permanent residence in your property because, according to Section 7, Paragraph 1, Letter f) of the Act on Reporting the Residence of Citizens of the Slovak Republic and the Register of Inhabitants of the Slovak Republic: “The reporting office shall cancel the record of permanent residence upon the proposal of the owner or all co-owners of a building or its part for a citizen who has no right of use to the building or its part; the proposal cannot be filed against the owner or co-owner of the building or its part, the spouse, or the dependent child of the owner or co-owner of the building or its part.”

Good day, In the sense of Section 143 of the Civil Code, “In the joint ownership of spouses is everything that can be the subject of ownership and which was acquired by either of the spouses during the duration of the marriage, with the exception of things obtained by inheritance or 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 (…).”

Based on the rule expressed in the quoted provision, it can be concluded that the part of the financial resources that you deposited into your savings account even before entering into marriage will be in your exclusive ownership, while the other financial resources that you deposited into the savings account gradually during the duration of the marriage will already belong to the joint ownership of spouses (BSM). To assess whether money is part of the BSM, it is not important into whose account it was deposited, but from what activity it originates, or rather on the basis of which legal facts it was acquired.

Our law firm can help you resolve questions regarding the division of property during a divorce, including determining which financial resources belong to the joint ownership and which remain in your exclusive ownership.

The moment a marriage is concluded, joint ownership of spouses (BSM) arises, the creation of which cannot be excluded in advance by a contract in the form of a so-called “prenuptial agreement.” The only option is the modification of the joint ownership during the duration of the marriage. In this article, we will assume that no modification of the joint ownership occurred during the marriage.

Property that spouses acquire during the duration of the marriage—meaning in the time from its creation until its termination—except for exceptions directly regulated by the Civil Code, is the common property of both spouses, and we say it belongs to their joint ownership. However, the following do not belong to BSM:

• things obtained by inheritance – what one of the spouses inherits, even during the marriage, does not belong to BSM but is in the exclusive ownership of that spouse;

• things obtained by gift – if one of the spouses receives something 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 issued within the framework of regulations on the restitution of property to one of the spouses who owned the issued thing before concluding the marriage or to whom the thing was issued as a legal successor to the original owner.

Naturally, what one of the spouses acquired before concluding the marriage also does not belong to BSM. Thus, if they were the owner of a property already before the marriage, the property does not automatically become common property within BSM by concluding the marriage.

In the event of the termination of the marriage during the lifetime of both spouses, it is necessary to divide the common property—that is, to settle the joint ownership—so that each of the spouses acquires a certain proportion of the assets into their exclusive ownership. The spouses should primarily agree on the division of property after the divorce; otherwise, the provision of Section 149, Paragraph 3 of the Civil Code applies, according to which, if the settlement is not performed by agreement, the court shall perform it upon the proposal of one of the spouses.

If this is not done even within three (3) years from the termination of the marriage (the settlement was not performed by agreement or if the joint ownership of spouses was not settled by a court decision upon a proposal filed within three years of its termination), a legal presumption applies that:

• as far as movable things are concerned, the spouses have settled according to the state in which each of them exclusively uses the things from the joint ownership as an owner for their own needs, the needs of their family, and the household;

• as far as other movable things and real estate are concerned, it is true that they are in fractional co-ownership and that the shares of both co-owners are equal. The same applies proportionately to other property rights that are common to the spouses.

To summarize, we state that property belonging to BSM can be settled either by an agreement concluded between the spouses or by a court, if one of the spouses files a proposal with the court.

The provision of Section 150 of the Civil Code regulates the principles that should be applied during the settlement of the common property of spouses: “In the settlement, it is assumed that the shares of both spouses are equal. Each spouse is entitled to request reimbursement for what they expended from their own [property] on the common property, and is obliged to replace what was expended from the common property on their other property. Furthermore, regard shall be had primarily to the needs of minor children, to how each spouse cared for the family, and to how they contributed to the acquisition and maintenance of the common things. In determining the degree of contribution, regard must also be had to the care for children and the management of the common household.”

If the spouses agree on the settlement of BSM, it is sufficient to draw up a BSM settlement agreement, which includes all property belonging to BSM and determines who acquires what property or how much of it. It is also possible to include common loans in the agreement and determine who will continue to repay the loan. Similarly, the agreement includes who will be the owner of the real estate that belonged to BSM. In this case, it is required that the agreement contains all the essentials according to both the Land Registry Act and, for example, the Act on the Ownership of Apartments and Non-residential Premises, if the subject of the agreement is an apartment or non-residential space. Likewise, the ownership of a motor vehicle for the time after the divorce, or a business share in a company, and other assets are usually incorporated into the agreement.

Out-of-court settlement of property after divorce Former spouses can also agree out-of-court on the settlement of their property belonging to BSM—that is, by agreement. The agreement does not have to be approved by a court; it can be drawn up by a lawyer, and if the subject of the BSM settlement is real estate, the land registry will perform the change of ownership on the title deed based on it.

Good day, During the duration of the marriage, your former husband received a plot of land and a forest as a gift. In the sense of Section 143 of the Civil Code: “In the joint ownership of spouses is everything that can be the subject of ownership and which was acquired by either of the spouses during the duration of the marriage, with the exception of things obtained by inheritance or 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 issued within the framework of regulations on the restitution of property to one of the spouses who owned the issued thing before concluding the marriage or to whom the thing was issued as a legal successor to the original owner.”

It follows from the above that a gift belongs to the exclusive ownership of the gifted spouse, which is also explicitly confirmed by the interpretation: “If a thing is gifted to one of the spouses, it becomes their exclusive ownership. If both spouses were the recipients of the gift, the thing will be in their fractional co-ownership.” (Source: Števček, Dulak, Bajánková, Fečík, Sedlačko, Tomašovič et al.: Civil Code – Commentary, 2nd edition, C. H. Beck, 2019).

For that reason, the land and the forest, which were gifted exclusively to the former husband, were his exclusive ownership and did not belong to the joint ownership of spouses (BSM).

If the former husband sold this land during the marriage and used the profit to buy a car and for investments into the house, the following applies: “If a spouse, to whom monetary funds were gifted during the marriage, procures another thing (buys something) with them, this thing will belong exclusively to that spouse only and will not belong to BSM.” (Source: Števček, Dulak, Bajánková, Fečík, Sedlačko, Tomašovič et al.: Civil Code – Commentary, 2nd edition, C. H. Beck, 2019).

This means that the car and the house, which were acquired from the proceeds of the sale of exclusive property (the gifted land), also remain in the exclusive ownership of the former husband and are not part of the BSM.

The forest was gifted and belonged exclusively to the former husband. However, every year income (rent from the land association) flowed from it. Although the law does not explicitly regulate the fate of income from exclusive property, established judicial practice is based on the following principle: “Any income during the duration of the marriage (except for gifts and inheritance) belongs to BSM.”

It follows from this that the income from the forest lease, although the forest itself did not belong to BSM, is included in BSM and was therefore common. Thus, if the former husband used this income to buy things for the house, you are entitled to a settlement of a share of these investments. Income from the lease of real estate is not part of the joint ownership of spouses only in the case that an agreement was concluded between the spouses according to Section 143a, Paragraph 1 of the CC on narrowing the legally determined scope and content of joint ownership.