What is and what is not included in the community property of spouses?

Regarding the subject of community property of spouses (hereinafter referred to as “BSM”), the Civil Code states the following in Section 143: “In the community property of spouses is everything that can be a subject of ownership and which was acquired by either spouse during the marriage, with the exception of things acquired by inheritance or gift, as well as things which by their nature serve the personal needs or professional practice of only one of the spouses, and things returned under restitution regulations to one of the spouses who owned the returned item before entering into the marriage or to whom the item was returned as the legal successor of the original owner.”

In addition to legal exceptions (such as inheritance or gifts), basically anything that can be subject to an individual’s ownership can be subject to BSM if the spouses (or only one of them) acquired it during the marriage through one of the legal methods (such as by contract, adverse possession, or by creating a thing).

The term “creating a thing” can also include the construction of a building (including a family house). To answer the question of whether a building whose construction began before the marriage but was completed during the marriage belongs to the BSM, it is necessary—with regard to case law—to determine whether the spouses were merely completing an already existing building during the marriage or were creating it together.

According to the decision of the Supreme Court of the Slovak Republic (R 44/1993), if elements of long-term durability (such elements are understood to be vertical and horizontal load-bearing structures, the roof structure, and the staircase) had already been completed on the building at the time of the marriage, an existing thing is being completed during the marriage. In such a case, the building will not belong to the BSM and will be in the exclusive ownership of the spouse who began building it before the marriage. However, if the elements of long-term durability had not yet been completed on the building at the time of the marriage, such a building cannot be considered a “thing” in the legal sense. In that case, the building will not belong to the exclusive ownership of the spouse who began building it before the marriage. Such a building will belong to the BSM regardless of the fact that the work on it began before the marriage.

At the same time, we add that movable items located in the house that were acquired during the marriage from funds belonging to the BSM could be part of the BSM, and therefore the other spouse will have a claim to them as well.

In the event that you inherited property during the marriage, it does not fall into community property. This fact follows from Section 143 of Act No. 40/1964 Coll., the Civil Code: “In the community property of spouses is everything that can be a subject of ownership and which was acquired by either spouse during the marriage, with the exception of things acquired by inheritance or gift, as well as things which by their nature serve the personal needs or professional practice of only one of the spouses, and things returned under restitution regulations to one of the spouses who owned the returned item before entering into the marriage or to whom the item was returned as the legal successor of the original owner.”

This means that the property is in the exclusive and individual ownership of the spouse who was the heir. In the event of a divorce, the spouse has no claim to the property, as you alone are the exclusive owner. If you wish to donate your property, you do not need your spouse’s consent.

During the marriage, spouses may agree to expand or restrict the community property, which means that through an agreement to expand, things inherited or gifted can belong to the community property. Such an agreement is established by a notarial protocol.

What is and what is not included in BSM?

The basic provision defining the eligible subject of BSM is Section 143 of the Civil Code (CC), according to which: “In the community property of spouses is everything that can be a subject of ownership and which was acquired by either spouse during the marriage, with the exception of things acquired by inheritance or gift, as well as things which by their nature serve the personal needs or professional practice of only one of the spouses, and things returned under restitution regulations to one of the spouses who owned the returned item before entering into the marriage or to whom the item was returned as the legal successor of the original owner.”

The general rule is that everything acquired by the spouses during the marriage falls under the BSM regime. However, this does not apply to things acquired through inheritance or gift. If a thing is gifted during the marriage even to both spouses (e.g., a wedding gift), it will not be the subject of community property (BSM), but at most the subject of “ordinary” joint tenancy, which is governed by the provisions of Sections 136 to 142 of the CC.

Items that, by their nature, serve the personal needs or professional practice of only one of the spouses also do not belong to BSM. The key word in this context is “nature.” According to the judgment of the Regional Court in Prešov, Case No. 2Co/116/2017 dated June 20, 2018: “When assessing things that by their nature serve the personal needs or professional practice of only one of the spouses, it is necessary to examine whether the thing is truly capable of serving the personal needs or professional practice of only one spouse and, at the same time, whether it actually serves such a purpose. If these prerequisites are met, the thing will belong to the separate (individual) property of the spouse whose personal needs or professional practice it serves, regardless of its value or how it was acquired. It also does not matter whether they are items of significant value or valuable items with regard to the overall level of the spouses’ property. These property values will be taken into account during the settlement of the community property, where the other spouse may request reimbursement for what was spent from the common property on such separate property.”

The Regional Court in Banská Bystrica (12Co/240/2019) also commented on the subject of BSM in its judgment: “Property acquired by either spouse before the marriage also does not belong to the community property. The decisive factor is the moment of the origin of ownership in the legal sense of the acquired thing. The use of common funds or exclusive funds cannot change the ownership once it has been acquired, but they can be taken into account in a possible settlement of the community property. Things acquired in exchange for a thing, or from the proceeds of the sale of a thing that was owned by one of the spouses, remain in the ownership of that spouse (so-called transformation of a thing). All other things fundamentally belong to BSM. This specifically includes all income and savings from employment or business activities, social security income, savings, lottery winnings, winnings from savings books, yields from the spouses’ property, etc.”

Regarding the frequent question about the spouses’ debts: “In general, the joint obligations (debts) of the spouses are not the subject of BSM. However, these obligations cannot be overlooked in the settlement of this co-ownership, as they belong to the property relations of the spouses and are closely related to their community property. (…) It is essential to prove that such an obligation existed as of the date of the termination of BSM, to what extent, and that it was a joint obligation of both spouses. A spouse who, after the termination of BSM, participated in the payment of a joint debt from their exclusive funds—e.g., paid loan installments or paid off the loan in full—has the right to reimbursement. This fact is subsequently reflected in the court’s ruling on the obligation of one spouse to pay the other spouse a certain financial sum to equalize their shares. Given the above, it can be concluded that in the case of outstanding joint debts of the spouses existing at the time of the BSM settlement, it is necessary for the court to reflect their amount at the time of settlement in the ruling and take into account what each spouse paid toward the joint debts, or what they acquired based on a joint claim, and potentially decide on the as-yet-unpaid interest on the settled amount (judgment of the Regional Court in Prešov, Case No. 3Co/41/2021 dated September 28, 2022).”

Just like a gift, items acquired through inheritance by only one spouse are not subject to BSM (community property of spouses) but are in the exclusive ownership of the person who inherited them. This means that even if the wife inherited either financial funds or other items (movable or immovable), the other spouse has no claim to them within the BSM settlement.

Slovak courts have expressed the following regarding this question: According to the judgment of the District Court Martin, Case No. 6C/14/2020: “As for the disputed funds on the defendant’s pension account, the court agreed with his assertion that the third pillar of pension saving does not belong to BSM. However, a spouse who paid into the third pillar from property belonging to BSM, i.e., from their salary, must return this sum back to BSM.”

The court added that “A deposit on an employee contract for supplementary pension insurance as a policyholder’s contribution belongs to the community property of spouses because it is formed from the paid income of one of the spouses (Resolution of the Regional Court in Banská Bystrica dated February 13, 2007, Case No. 13Co/181/2006).”

The District Court Žilina also identified with this legal conclusion in its judgment Case No. 49C/22/2020, according to which: “The court did not settle the claims or savings on the personal pension accounts of the parties to the dispute, as paid income (i.e., income that the spouse receives and not income to which the spouse only gains a claim) belongs to the community property of spouses. By its nature, the personal pension saving of each spouse is created for the personal need of each spouse, to which, however, each spouse becomes entitled only upon reaching retirement age. Until then, they are not authorized to dispose of these funds. Personal pension saving is not formed from the paid income of an individual spouse; therefore, it does not belong to BSM.”

Hello, According to Section 143 of Act No. 40/1964 Coll., the Civil Code: “In the community property of spouses is everything that can be a subject of ownership and which was acquired by either spouse during the marriage (…).”

It follows from the cited provision that if you purchased the house with your exclusive funds before entering into the marriage, the house does not become part of the community property of spouses (BSM) after marriage but remains in your exclusive ownership.

Even if you decided to sell the house during the marriage, the money obtained from the sale will also belong exclusively to you and will not become part of the BSM assets, despite the fact that the marriage (and the BSM regime) is already ongoing.

In this case, it is a so-called “transformation of property,” meaning that the money obtained from the sale does not represent newly acquired property, but merely a change in the form of already existing property (real estate into money), which in no way affects the ownership of that property. The same principle applies if you were to use this money to purchase another item. However, if you were to use funds belonging to the BSM in addition to this money to purchase a new item (resulting in the so-called “mixing of exclusive property with common property”), the purchased item would then be part of the BSM, regardless of the size of the sum from the BSM contributed to the purchase.

In the event of a divorce, the marriage is terminated and the common property of the spouses is settled. However, the settlement only concerns property belonging to the BSM (i.e., to both spouses jointly), not property that belongs to the exclusive ownership of the spouses. Your house (nor the money obtained from its sale) will not be subject to the BSM settlement after the divorce.