The termination of the joint marital property during marriage

If we understood correctly, you are interested in the dissolution of BSM during the marriage and the division of property belonging to this BSM. We are happy to provide our legal services in this matter; however, it is necessary to point out that for the dissolution of BSM during marriage, at least one of the legal grounds must be met, as spouses cannot agree during marriage to dissolve and settle their BSM themselves, but it is necessary for a court to do so upon the proposal of one of them: “Joint owners cannot agree on the dissolution and settlement of joint ownership of things in the joint ownership of spouses. During the duration of the marriage, only a court can dissolve this joint ownership.” (Judgment of the Supreme Court of the SR, Case No. 5Cz 51/73).

It is therefore necessary to submit a proposal to the court. One of the grounds for dissolving BSM during marriage is regulated in Section 148a of the Civil Code, according to which: “The court, upon proposal, shall dissolve the joint ownership of spouses in the event that one of the spouses has obtained authorization for business activity. The proposal may be filed by the spouse who did not obtain the authorization for business activity. If both spouses have this authorization, either of them may file the proposal.” It is therefore necessary for one of the spouses to become an entrepreneur – a natural person (SZČO). Please note that it is not sufficient for one of the spouses to become a member of a body of a commercial company (for example, a managing director or a shareholder).

The authorization for business activity must be active: “The court cannot dissolve the joint ownership of spouses if, at the time of the court’s decision, the spouse’s (defendant’s) authorization for business activity had already been canceled.” (Judgment of the Supreme Court of the SR, Case No. 4Cdo 97/97).

The authorization for business activity must arise during the marriage, and in this case, the court must dissolve the BSM: “If one of the spouses acquires authorization for business activity during the marriage, any of the spouses may file a proposal with the court for the dissolution of the joint ownership of spouses. For this reason, the court must dissolve the joint ownership.” (District Court České Budějovice, Case No. 9C 110/90).

The second ground for dissolving BSM during marriage is serious reasons: “…especially if the further duration of the joint ownership would contradict good morals, the court may, upon the proposal of either spouse, dissolve this joint ownership even during the duration of the marriage.”

The Supreme Court of the CR also addressed the question of whether the mere living apart of the spouses (the dissolution of a common household) is a ground for dissolving BSM and stated that: “The mere finding that the spouses live apart is not enough to conclude that grounds for the dissolution of joint ownership are given; it is simultaneously necessary to examine whether it is a permanent and irreparable state (without hope of restoring the coexistence of the spouses), and whether, as a result of the spouses living apart, both do not participate in the creation of common property.” (Judgment of the Supreme Court of the CR, Case No. 5Cz 104/67, see also 5Cz 30/1967).

Whether it is the first or the second ground, it is always necessary to request the court to dissolve the BSM during the marriage. Only the court is competent to dissolve BSM during marriage. At the same time, it is not possible to combine the proceedings for the dissolution of BSM during marriage with the proceedings for its settlement.

The BSM is dissolved upon the finality of the court’s decision. It is thus not possible to perform it retroactively to a certain date (“The Civil Code does not allow the court – besides pronouncing the dissolution of joint ownership – to determine that the dissolution of joint ownership occurs not on the day of the finality of the decision on dissolution, but retroactively to any day before the finality of this decision.” Judgment of the Supreme Court of the CR, Case No. 4Cz 177/68).

If the court decides on the dissolution of BSM, it is possible to perform the settlement of the dissolved BSM subsequently by agreement of the spouses.

We will be happy to help you with the dissolution of BSM during the marriage. If you are a self-employed person (živnostník), there is a presumption that the court would dissolve the BSM for you during the marriage.

From our side, we can prepare a proposal for the court and ensure its filing. Our hourly rate is €100 + VAT; for these actions, we require a deposit for 4 hours of work (€400 + VAT).

In the past, we have also encountered cases where the court did not order a hearing and decided without the client’s presence; however, this may not be the rule.

Only a court can dissolve BSM during marriage. It is therefore necessary for one of the spouses to file an application with the court for the dissolution of BSM during marriage. The law defines exactly the grounds upon which the dissolution of BSM during marriage is possible.

One ground is stated in Section 148, Paragraph 2 of the Civil Code: “For serious reasons, especially if the further duration of the joint ownership would contradict good morals, the court may, upon the proposal of either spouse, dissolve this joint ownership even during the duration of the marriage.”

The second ground is the acquisition of authorization for business activity by one of the spouses: “The court, upon proposal, shall dissolve the joint ownership of spouses in the event that one of the spouses has obtained authorization for business activity. The proposal may be filed by the spouse who did not obtain the authorization for business activity. If both spouses have this authorization, either of them may file the proposal.”

To summarize, we state that the termination of BSM during marriage occurs:

• by a court decision on the dissolution of the joint ownership of spouses (Section 148, Para. 2, Section 148a, Para. 2 of the CC)

• by a court decision in criminal proceedings on the forfeiture of property or a part thereof to the state according to Section 59, Para. 2 of the CC; in this case, the termination of joint ownership occurs directly by operation of law, namely on the day the criminal judgment becomes final

• by a court decision on the declaration of bankruptcy according to the provisions of Sections 18, 19, and 53 of Act No. 7/2005 Coll. on Bankruptcy and Restructuring, if joint ownership existed for the debtor; here too, the termination of joint ownership occurs directly by operation of law.” (Vojčík, P.: Civil Code Commentary. Iura edition, 2015)

The mere fact that you do not live in the same household as your husband is not [sufficient] grounds for the dissolution of BSM during marriage.

Good day, According to Section 148, Paragraph 2 of the Civil Code, BSM can be dissolved quite exceptionally even during the duration of the marriage, specifically for serious reasons, “especially if the further duration of the joint ownership would contradict good morals.” In such a case, the court can dissolve the BSM based on a proposal filed by one of the spouses. However, the court is not obliged to grant the proposal; it is exclusively at its discretion whether or not the grounds for the dissolution of BSM according to Section 148, Paragraph 2 of the Civil Code are given. In other words, spouses do not have a legal entitlement to have their BSM dissolved during the duration of the marriage.

The spouse who proposes to dissolve the BSM has the obligation to prove the contradiction with good morals. As already mentioned, the court decides whether the duration of the BSM would contradict good morals. Serious reasons for the dissolution of BSM include, for example, the profligate, uneconomical behavior of one of the spouses, damaging the economic interests of the family, not contributing to the family, avoiding work, living separately from the family and household, and the like.

A special ground for the termination of BSM during the duration of the marriage is the declaration of bankruptcy on the property belonging to the BSM of the spouses (Section 53 of the Act on Bankruptcy and Restructuring).

Furthermore, in the sense of Section 148a, Paragraph 2 of the Civil Code: “The court, upon proposal, shall dissolve the joint ownership of spouses in the event that one of the spouses has obtained authorization for business activity.” The proposal is filed by the spouse who did not obtain the authorization for business activity. In such a case, the ground for the dissolution of BSM during marriage is given directly by law (the acquisition of the authorization to do business by one of the spouses). The existence of this legal ground is sufficient for the court to be obliged to grant the proposal.

By engaging in business activity, the entrepreneurial spouse exposes the property belonging to the BSM to significant risk. In the event that they become a debtor, the property belonging to the BSM could also be used to repay the debt. For this reason, the Civil Code establishes that “an entrepreneur needs the consent of the other spouse to use property in the joint ownership of spouses when starting a business (Section 148a, Paragraph 1 of the CC).”

Good day, One of the ways is to file a proposal for the dissolution of BSM on the grounds according to Section 148a, Paragraph 2 of the Civil Code. According to this provision, “The court, upon proposal, shall dissolve the joint ownership of spouses in the event that one of the spouses has obtained authorization for business activity.” As soon as the court considers it proven that the spouse has obtained authorization to do business, it is obliged by law to dissolve the BSM.

The second way, which, however, only allows for the restriction of BSM rather than its dissolution, is an agreement of the spouses to narrow the scope of BSM according to Section 143a, Paragraph 1 of the Civil Code. Within this agreement, the spouses can commit that certain things or rights (e.g., claims) will be excluded from the BSM regime and the spouses will acquire them into their exclusive ownership. However, the agreement cannot concern things that already belong to the BSM, but only those that are to be acquired into the BSM from the date of the validity and effectiveness of this agreement. The agreement to narrow the scope of BSM must be signed [before] a notary; otherwise, it is ineffective against third parties (e.g., a creditor); this does not apply if these persons knew about the agreement (Section 143a, Paragraph 3 of the CC). If the agreement concerns real estate, it must be in writing and takes effect upon entry into the land registry (Section 149a of the CC).