Matrimonial property regimes

National rules relating to the division of marital property of spouses that have an international element to their relationship in cases of divorce, separation or death

European Union citizens increasingly move across national borders to study, work or start a family in another EU country. This leads to an increased number of international couples, whether in a marriage or a registered partnership.

International couples are couples whose members have different nationalities, live in an EU country other than their own or own property in different countries. International couples, whether in a marriage or in a registered partnership, need to manage their property and, in particular, share it in case of divorce/separation or the death of one of the members.

EU rules help international couples in these situations. These rules apply in 18 EU countries: Sweden, Belgium, Greece, Croatia, Slovenia, Spain, France, Portugal, Italy, Malta, Luxembourg, Germany, the Czech Republic, the Netherlands, Austria, Bulgaria, Finland and Cyprus.

These rules determine which EU country’s courts should deal with matters concerning the property of an international couple and which law should apply to resolve these matters. The rules also simplify how judgments or notarial documents originating in one EU country should be recognised and enforced in another EU country.

Please select the relevant country's flag to obtain detailed national information.

Should you need additional information, please contact the authorities or a legal professional of the EU country concerned.

You can also consult the website http://www.coupleseurope.eu/en/home of the Council of Notariats of the European Union.

Last update: 28/11/2019

This page is maintained by the European Commission. The information on this page does not necessarily reflect the official position of the European Commission. The Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice with regard to copyright rules for European pages.
The Commission is in the process of updating some of the content on this website in the light of the withdrawal of the United Kingdom from the European Union. If the site contains content that does not yet reflect the withdrawal of the United Kingdom, it is unintentional and will be addressed.

Matrimonial property regimes - Czech Republic

1 Is there a statutory matrimonial property regime in this Member State? What does it provide?

Yes.

Under Czech law, whatever belongs to the spouses, has an asset value and is not excluded from the legal regime is considered to be matrimonial property. Matrimonial property is subject to the statutory regime, to a specific agreed regime, or to a regime laid down in a court ruling.

Under the statutory regime, whatever one spouse acquired, or both of the spouses acquired jointly, during their marriage is considered to be joint property, except for the following:

a)         assets serving the personal needs of one of the spouses;

b)         assets acquired by gift, inheritance or bequest to just one of the spouses, unless the person giving the gift, or the testator, expressed a different wish;

c)         assets received by one of the spouses as compensation for non-material damage to their natural rights;

d)        assets acquired by one of the spouses by means of a legal process relating to their sole ownership;

e)         assets acquired by one of the spouses as compensation for damage, destruction or loss of their exclusive property.

Under the statutory regime, any profits from assets belonging solely to one of the spouses is joint property.

Under the statutory regime, any debts taken on during the marriage are joint property, unless they relate to assets belonging solely to one of the spouses, and only in relation to the part that exceeds the value of the profits from these assets, or unless they were taken on by one of the spouses without the agreement of the other. This does not concern the acquisition of routine purchases or basic necessities for the family.

2 How can spouses arrange their matrimonial property regime? What are the formal requirements in this case?

Engaged or married couples may agree on a property regime that differs from the statutory regime.  The agreement may consist of a separate ownership regime or of a regime that limits the establishment of joint property to the period before the marriage ends, or it may extend or limit the scope of joint property defined in the statutory regime. The agreement may contain any arrangements relating to any item of property, unless prohibited by law. The agreement may in particular cover the scope or content or the regime, or the period during which the statutory regime or other joint property regime is applicable, or individual items of property or groups thereof. The agreement may classify future joint property differently to the statutory regime. The agreement may also provide for a property regime in the event of the end of the marriage.

An agreement on a matrimonial property regime must be in the form of an official record (i.e. it must have been certified by a notary).

When an engaged couple enter into a matrimonial property regime agreement, this agreement becomes effective on the date of the marriage.

3 Are there restrictions on the freedom to arrange a matrimonial property regime?

The agreement may contain any arrangements relating to any item, unless prohibited by law.

The agreement may not exclude or amend any provisions on customary household furnishings, unless one of the spouses has left the household and refuses to return. The agreement may not prevent a spouse from providing for their family. The agreement may not, by virtue of its content or purpose, affect the rights of any third party, unless that party has so consented in the agreement. Any agreement concluded without the consent of the third party has no legal effect in relation to that party.

4 What are the legal effects of divorce, separation or annulment on the matrimonial property?

Matrimonial property ceases to be such upon the end of the marriage; this happens when a spouse dies, when a spouse is declared dead, or upon divorce. When matrimonial property is dissolved, the residual property must be distributed.

If the marriage is annulled, it is regarded as not having been entered into. After annulment, the couple’s property rights and obligations are treated in the same way as property rights and obligations following a divorce.

5 What are the effects of death of one of the spouses on the matrimonial property regime?

The matrimonial property is dissolved and is then distributed. The remaining spouse is the statutory first- and second-category heir of the deceased.

6 Which authority has the competence to decide in a case relating to a matrimonial property regime?

A court.

7 What are the effects of the matrimonial property regime on legal relationships between a spouse and a third party?

Whatever either of the spouses acquired before the marriage (inter alia) is not considered to be matrimonial property under the statutory regime. Under the statutory regime, any debts taken on during the marriage are joint property, unless they relate to assets belonging solely to one of the spouses, and only in relation to the part that exceeds the value of the profits from these assets, or unless they were taken on by one of the spouses without the agreement of the other. This does not concern the acquisition of routine purchases or basic necessities for the family.

In matters concerning joint property or parts thereof that are not considered routine, the spouses must act together in legal proceedings, unless one spouse acts with the consent of the other. If a spouse refuses to grant consent without good reason and against the interests of the matrimonial pair, of the family, or of the family household, or is unable to express their will, the other spouse may apply for a court to grant consent in their place.

If a spouse acts in legal proceedings without the consent of the other spouse where such consent was required, the other spouse may have these proceedings declared invalid. If a part of the joint property is to be used for commercial purposes by one of the spouses, and if the asset value of that part of the property exceeds an amount commensurate with the material circumstances of the spouses, the consent of the other spouse is required on the first occasion this property is used in this way. If the other spouse is excluded from these proceedings, he or she may have them declared invalid. If a part of the joint property is to be used to acquire a share in a trading company or a cooperative, or if acquiring such a share leads to the guaranteeing of a company’s or a cooperative’s debts to an extent exceeding that commensurate with the material circumstances of the matrimonial pair, the consent of the other spouse is required; if the other spouse is excluded from these proceedings, he or she may have such proceedings declared invalid.

If the spouses have negotiated an agreed property regime, the agreement may not, by virtue of its content or purpose, infringe the rights of any third party, unless that party so consents in the agreement. Any agreement concluded without the consent of the third party has no legal effect in relation to that party.

8 A short description of the procedure for the division, including partition, distribution and liquidation, of matrimonial property in this Member State.

If joint property is dissolved or liquidated, or if its scope is reduced, the previously joint obligations and rights are discharged by means of distribution. If the reduced, dissolved or liquidated property is not distributed, the rules on joint property are applied to them as appropriate.

The distribution of the property may not affect the rights of any third party. If any third person’s rights have been affected by the distribution, that person may demand that a court find that the distribution has no effect in relation to them. Debts may only be distributed between spouses.

The preference is for an agreement to be reached between the spouses to distribute the joint property, if this is possible (in the event of divorce or a reduction in the joint property, for instance). A distribution agreement always takes effect as of the day on which the joint property was reduced or dissolved or liquidated, irrespective of whether the agreement was made before or after the reduction, dissolution or liquidation of the joint property.

The distribution agreement must be in written form if it was concluded during the marriage or if any item to be distributed requires an ownership transfer agreement in written form (e.g. immovable items). If the distribution agreement does not need to be in written form and if one of the spouses arranges it, the other spouse must submit to that spouse a confirmation of the distribution.

If the spouses fail to agree on a distribution settlement, either of them may apply for a court ruling. The court must make a distribution ruling in accordance with the situation that prevailed when the matrimonial property was reduced or dissolved or liquidated.

The following rules are applied in the distribution:

a)         the shares of both spouses in the assets to be distributed must be the same;

b)         each spouse must reimburse any resources from the joint assets spent on his or her exclusive property;

c)         each spouse has the right to require compensation for any resources from his or her exclusive property that were spent on joint assets;

d)         account must be taken of the needs of dependent children;

e)         account must be taken of how each of the spouses cared for the family, especially how they cared for the children and the family household;

f)         account must be taken of how each spouse contributed to the acquisition and maintenance of joint assets.

If, within three years of the reduction, dissolution or liquidation of the joint property, there has been no distribution of the assets that formed part of that property, or no distribution agreement has been reached, or there has been no application for the court to rule on distribution, the spouses or former spouses are deemed to have settled the distribution as follows:

a)         tangible movable assets are the property of the spouse who uses them, as sole owner, to provide for their own needs or those of their family or their family household;

b)         other tangible movable and immovable assets are the joint property of both spouses and each has an equal share in this property;

c)         other property rights, liabilities and debts attach to both spouses and they have an equal share in these.

9 What is the procedure and documents or information typically required for the purpose of registration of immovable property?

Legal proceedings establishing or transferring a right in rem to immovable assets, or proceedings amending or revoking such rights, must be in written form. If the transfer involves ownership of immovable assets that are entered in a public register, the change in ownership takes effect by means of an entry in that register.

Last update: 05/02/2020

The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.
Member States in charge of the management of national content pages are in the process of updating some of the content on this website in the light of the withdrawal of the United Kingdom from the European Union. If the site contains content that does not yet reflect the withdrawal of the United Kingdom, it is unintentional and will be addressed.

Matrimonial property regimes - Germany

1 Is there a statutory matrimonial property regime in this Member State? What does it provide?

Who owns the property acquired during a marriage and how this property is divided after the end of the marriage is always determined by the particular family-law property regime. The effects of marriage on property rights are governed by the regulations on matrimonial property regimes in the German Civil Code (Bürgerliches Gesetzbuch – BGB). The BGB recognises the following property regimes: community of accrued gains (Zugewinngemeinschaft), separation of property (Gütertrennung) and ‘optional community of accrued gains’ (Wahl-Zugewinngemeinschaft).

2 How can spouses arrange their matrimonial property regime? What are the formal requirements in this case?

Community of accrued gains applies unless the married couple agree otherwise by means of a notarial marriage contract. Community of accrued gains means separation of property during the marriage and equalisation of gains accrued during the marriage once the property regime has ended.

By contrast, separation of property must be agreed by the spouses by means of a notarial contract. The separation of property means complete separation of the spouses’ respective assets, without any equalisation of accrued gains at the end of the marriage. Each spouse keeps as their own the assets they acquired before and during the marriage. Separation of property may also arise without an explicit contract between the spouses, for example if the property regime is rescinded or excluded under the marriage contract without another property regime being agreed at the same time.

Community of property must likewise be agreed by the spouses by means of a notarial contract. Under community of property, the assets owned prior to the marriage and the assets acquired during the marriage usually become the common property of the couple (Gesamtgut - jointly owned property). In addition to that, the spouses may each have their own separate property (Sondergut), which does not form part of the common marital property. These are things that cannot be transferred by legal transactions, for example non-attachable claims or a share in a partnership. Finally, each spouse may reserve certain items as separate property. Spouses may also establish a special form of community of property, namely community of acquired assets (Errungenschaftsgemeinschaft). To this end, they must declare in the marriage contract that all assets acquired before the marriage are to be reserved property.

The optional community of accrued gains is a Franco-German property regime designed to avoid potential problems in legal relations between a French and a German national because of the differences in matrimonial property regimes. If the spouses opt for this type of property regime, their assets will remain separate during the marriage, as in the case of the German community of accrued gains regime. Only at the end of the property regime is the increase in the value of the couple’s property equalised between the two spouses. Despite the similarity in content with the German community of accrued gains, the optional community of accrued gains has a number of special features influenced by arrangements in France. For example, damages for pain and suffering and any random increases in the value of real estate (e.g. via zoning as building land) are not taken into account in the equalisation of accrued gains.

3 Are there restrictions on the freedom to arrange a matrimonial property regime?

If the spouses feel that the statutory property regime - community of accrued gains - is not suitable for their marriage, they may enter into a notarial marriage contract. In that contract they can agree on separation of property or community of property, or make arrangements other than the statutory ones within a specific property regime. The contract may also specify arrangements on pension splitting or maintenance.

When entering into a marriage contract, however, care should be taken that the arrangements provided for are actually valid. For example, if a marriage contract unilaterally disadvantages one of the spouses and certain other circumstances are present, it may be considered contrary to accepted principles of morality and therefore null and void. In that case, the statutory regulations which are theoretically excluded by the marriage contract continue to apply. Case law in this area is very diverse. Whether an arrangement is really contrary to accepted principles of morality and therefore null and void, or whether it must be adjusted, can ultimately be decided only on a case-by-case basis.

4 What are the legal effects of divorce, separation or annulment on the matrimonial property?

Under the statutory property regime - community of accrued gains - equalisation of the accrued gains takes place if the property regime is ended (e.g. by the death of one of the spouses, by divorce or by contractual agreement on a different property regime). The equalisation of the accrued gains means that the spouse who, during the marriage, acquired more assets than the other one, has to compensate that spouse by half of the difference in accrued gains in the form of a cash payment.

Under the community of property regime, the common property is divided in the event of a divorce, following the settlement of any liabilities. Each of the spouses is, as a rule, entitled to half of the surplus that remains. If, on the other hand, the spouses have agreed separation of property, there will be no equalisation following the end of the matrimonial regime because of the complete separation of the assets of the two spouses.

The right to maintenance is independent of the matrimonial property regime. If the spouses are living apart, without having divorced, the spouse in need is generally entitled to maintenance from the economically-able spouse. The claim for maintenance will only exist until the divorce comes into effect. Following divorce, however, the spouse in need may, under certain circumstances, be able to demand post-marital maintenance. The law recognises the following entitlements to maintenance: maintenance for childcare, maintenance due to age, illness or infirmity, maintenance because of unemployment, top-up maintenance, maintenance for the duration of education, further training and retraining, and maintenance for reasons of equity.

Where there are grounds for annulment of a marriage, there may be entitlements to compensation and maintenance in individual cases even after the annulment.

5 What are the effects of death of one of the spouses on the matrimonial property regime?

In a community of accrued gains, the accrued gains are equalised on the death of one spouse in the form of a flat-rate increase of one quarter in the statutory portion of the inheritance (gesetzlicher Erbteil), irrespective of whether the deceased spouse actually accrued any gains during the marriage. If the surviving spouse is not an heir or rejects the inheritance, they may demand equalisation of the gains that were actually accrued and also claim the compulsory minimum share (kleiner Pflichtteil). This compulsory minimum share is calculated on the basis of the statutory portion of the inheritance, whereby the flat-rate one quarter of accrued gains is not taken into account.

If the spouses agreed the separation of property, there will be no flat-rate equalisation of accrued gains at the end of the marriage. The generally applicable legal order of succession applies.

Under the community of property regime, the estate comprises half of the common property, the reserved property and the separate property of the deceased. The share of inheritance of the surviving spouse is determined according to the general provisions.

6 Which authority has the competence to decide in a case relating to a matrimonial property regime?

The family court is competent for matters involving property law, i.e. proceedings that concern claims based on matrimonial property law, in particular equalisation of spouses’ accrued gains.

7 What are the effects of the matrimonial property regime on legal relationships between a spouse and a third party?

A married person is typically liable only for their own debts and only with their own assets. This excludes transactions for the reasonable coverage of the family’s everyday needs.

In a community of accrued gains, however, there are exceptions to the principle that a spouse is free to dispose of their own property. If one of the spouses wishes to dispose of (sell, give away etc.) all or nearly all of their own assets, they need the consent of the other spouse. The same applies if a married person wishes to dispose of objects which are owned solely by that person but form part of the married couple’s household.

On the other hand, under the separation of property regime, each spouse may freely dispose of all their entire assets and does not need the consent of the other spouse to dispose of items forming part of the household.

If the spouses have agreed the community of property regime, they will as a rule manage their common property jointly, unless the marriage contract assigns management to one spouse. The common property is only liable for an obligation arising from a legal transaction that a spouse has entered into during the community of property if the other spouse has agreed to the legal transaction, or if the legal transaction is effective for the common property even without their consent.

8 A short description of the procedure for the division, including partition, distribution and liquidation, of matrimonial property in this Member State.

The matrimonial home and the household items may be distributed while the spouses are living apart or after the divorce. If co-ownership has otherwise arisen and the spouses are unable to agree, the item is to be auctioned and the proceeds divided up.

9 What is the procedure and documents or information typically required for the purpose of registration of immovable property?

If the spouses opt for community of property as the matrimonial property regime, they must submit the notarial marriage contract to the land register and apply for the land register to be revised. In all other cases, i.e. if the spouses do not opt for the community of property as the matrimonial property regime, the land register does not have to be revised.

Last update: 05/02/2020

The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.
Member States in charge of the management of national content pages are in the process of updating some of the content on this website in the light of the withdrawal of the United Kingdom from the European Union. If the site contains content that does not yet reflect the withdrawal of the United Kingdom, it is unintentional and will be addressed.

Matrimonial property regimes - Spain

1 Is there a statutory matrimonial property regime in this Member State? What does it provide?

1.1 Legal regime: Common civil law and the particular law of certain Autonomous Communities

It would be incorrect to speak of a single law or matrimonial property regime in Spain. Certain Autonomous Communities, alongside the State, have jurisdiction over civil law (although not all include matrimonial property regimes among the matters they can regulate). This means that all Spanish citizens have a specific regional citizenship (vecindad civil) in addition to their Spanish nationality. This determines whether they are subject to the common civil law or to a specific or regional civil law (Article 14 of the Civil Code).

The regions with their own civil law include Aragon, Catalonia, Balearic Islands, Navarre, Basque Country, Galicia and Valencia (although the latter does not regulate matrimonial property regimes since the law it passed was declared unconstitutional by the Constitutional Court (Tribunal Constitucional)). Thus, citizens of the remaining Autonomous Communities have ‘common’ regional citizenship (vecindad civil común) (Article 14 of the Civil Code regulates how regional citizenship is acquired).

-        In the case of marriage between Spanish citizens (with no international connection), to identify the law applicable to the matrimonial property regime and whether to apply common law or the law of a particular Autonomous Community, it is necessary to turn to the rules of interregional law contained in the Preliminary Title of the Civil Code (Título Preliminar del Código Civil) ((Articles 9(2) and 16 of the Civil Code).

  • The regime under the Civil Code applies to spouses with common regional citizenship.
  • If the spouses do not have such common regional citizenship, the applicable law is that relating to the regional citizenship or habitual residence of one of the spouses, jointly chosen in an authentic document issued prior to the celebration of the marriage. Failing this, the applicable law is that of the place of common habitual residence immediately following the celebration of the marriage. Finally, in the absence of such a residence, the applicable law is that of the place where the marriage is celebrated.
  • In exceptional cases, where the spouses have different regional citizenship, if both regions have as their matrimonial property regime separation of property (and the regime applicable according to the abovementioned rules was different from that), the separation of property regime found in the Civil Code applies.

-        When one of the spouses is not Spanish or the married couple has a connection to another country, the applicable law is determined according to the provisions of Article 33 of Regulation (EU) 2016/1103, which is understood in such a way that, in relation to Spanish citizens, where the Regulation refers to nationality as a criterion of connection, this is regarded as a reference to regional citizenship.

However, regional citizenship is a concept that only applies to Spanish citizens (Article 15 of the Civil Code); therefore, since it does not apply to foreigners, Article 33(2) comes into play, replacing the law of nationality with the law of closest connections, i.e. the law of the territorial unit with which the spouses have the closest connections.

1.2 Matrimonial property regimes applicable in the absence of an agreement between the spouses under the Civil Code and the particular laws of the Autonomous Communities

With regard to specifying the matrimonial property regime in cases where there is no agreement between the spouses, supplementary law applies, which varies depending on the applicable internal civil law:

  • Civil Code (applied unless the applicable law is that of Aragon, Catalonia, Balearic Islands, Navarre, Basque Country, Galicia): community of property (sociedad de gananciales) (Article 1344 et seq. of the Civil Code). Under this regime, the acquisitions and benefits obtained by either of the spouses become the joint property of both. Each spouse’s personal property essentially includes property brought to the marriage and property acquired during the marriage free of charge or as replacement for personal property. The main residence acquired prior to marriage is covered by a special regime under which, in contrast to the other property acquired prior to marriage (which is always personal), payments made afterwards with joint funds convert the main residence proportionally into joint property. In case of doubt, property is presumed to be jointly owned. The liability regime of community property is regulated in the same way, and it includes property resulting from the regular exercise of a profession, artistic activity or trade. If there are debts incurred by only one spouse, initially only that person is liable with his or her own property; if this is insufficient, creditors may seize community property. However, in this case the other spouse can request the dissolution of the community of property, replacing the seizure of joint property by the share held by the debtor spouse; from that point on, the marriage falls under the separation of property regime. Community property is managed jointly (although on a day-to-day basis – domestic authority (potestad doméstica) – either of the spouses may manage it). Management of personal property is the responsibility of the spouse who owns the property (although there are special provisions where the family home is concerned, since although it may belong to just one spouse, the other spouse’s consent is necessary or, failing that, judicial authorisation). Disposals of or encumbrances on community property require the consent of both spouses.
  • Aragon: community of property (consorcio conyugal) regulated in Articles 210 et seq. of the Aragon Regional Legal Code (Código de Derecho Foral de Aragón). Under this regime the acquisitions or benefits obtained by either of the spouses as a result of their work, activity or returns on their assets, become joint property. Each spouse’s personal property essentially includes property brought to the marriage and property acquired during the marriage free of charge or as replacement for personal property. In case of doubt, property is presumed to be jointly owned. Under Aragon civil law, property acquired before marriage, including the main residence, is always personal, unless the cost has been wholly deferred and will be paid in full out of joint funds once the marriage begins. The system of liability for this property regime is regulated. Where debts are incurred by only one spouse, that person alone is liable with his or her own property; if this is insufficient and in the case of enforcement against joint property for debts that are not under joint responsibility, the debtor's spouse may exercise the right to safeguard the value of his or her share of the joint property, requesting the liquidation of the community of property solely for the purpose of determining the value that must be safeguarded, without dissolving it.

It should be mentioned that in Aragon the surviving spouse has a right to usufruct (usufructo viudal aragonés) which, while an inheritance right, is also a prospective right during life (derecho expectante de viudedad).

  • Catalonia: separation of property (Article 232(1) of the Catalonia Civil Code (Código Civil de Cataluña)). In this regime, each spouse is entitled to the ownership, enjoyment, management and free use of all his or her property. In case of doubt as to which of the spouses owns an asset or right, it is understood to belong to both in equal, indivisible parts. However, it is presumed that personal-use moveable property that is not extraordinarily valuable belonging to one of the spouses, and property directly intended for the exercise of his or her activity, are his or her exclusive property.
  • Balearic Islands: separation of property (Article 3 of the Balearic Islands Civil Law Code (Compilación de Derecho Civil de las Islas Baleares), as regards Mallorca; Article 65 as regards Menorca; and Article 67 for Ibiza and Formentera). Under this regime, property belonging to each spouse at the time of marriage is considered his or her personal property, as well as any property acquired by any means in the course of the marriage
  • Navarre: community of property (conquistas) (Law 87 et seq. of the Navarre New Legal Code (Fuero Nuevo de Navarra)). This is a regime in which the acquired property includes (among others) property acquired during the marriage through work or other activity by either of the spouses, as well as the proceeds of and returns on both joint and personal property. Personal property includes property that a spouse obtains by payment prior to the marriage, even if acquisition takes place during the marriage, or the cost or consideration is paid in full or in part with funds from the other spouse or from the community of property, or acquisitions by way of profit prior to or during the marriage. All property not documented as personal is considered community property. Housing and furnishings are subject to a specific regime when acquired or totally or partially paid during the marriage, even when they result from prior ownership. In this case, if the payment was made with the sole, exclusive contribution of one of the spouses, it will be his or her personal property. If the payment was made with assets owned by both spouses, the property will belong indivisibly to them both in proportion to their respective contributions. If payment was made with the assets of one or both spouses in addition to assets from the community of property, indivisibility applies in proportion to each spouse’s contribution and those of the community of property. The system of administration and liability for community property and personal property is also regulated. Where personal debts are incurred, if the debtor spouse’s personal assets are insufficient, the creditor may request seizure of community property, which is notified to the other spouse. If he or she fails to respond and the community property is seized, enforcement takes place, and the debtor spouse is considered to have received the value of his or her share, when he or she makes payment with his or her own funds or when the community of property is liquidated. However, the other spouse may, within nine days of notification of the seizure, request that the seizure of community property be replaced by the remainder assigned to the debtor spouse on liquidation of the community of property. In this case, the seizure results in the dissolution and liquidation of the community of property, as well as the application of the separation of property regime from that point on.
  • Basque Country: when both spouses are residents of the lowlands of Bizkaia, Aramaio or Llodio, the marriage is regulated by the regional universal community of property regime (comunicación foral de bienes). When only one of the spouses has regional citizenship in the lowlands of Bizkaia, Armaio or Llodio, this regime applies if it corresponds to the spouses' first common habitual residence; failing that, the regime of the place where the marriage was celebrated is applied. In other parts of the Basque Country, if there is no agreement, the matrimonial property regime is the community of property regime (sociedad de gananciales) found in the Civil Code (Article 127 et seq. of the Basque Country Regional Civil Law Act (Ley de Derecho Civil Foral del País Vasco). Under the regional universal community of property regime, all assets, rights and shares – regardless of their origin – belonging to either of the spouses and acquired by whatever means are shared equally between the spouses. This applies both to property brought to the marriage and property acquired during the marriage, regardless of where the property is located. Despite this theoretically universal character, the scope of the community of property varies depending on the cause of dissolution. Thus, if the marriage is dissolved by the death of one of the spouses and there are children from the marriage, the community of property is universal in nature. However, if it is dissolved by the death of one of the spouses, but there are no children from the marriage, or if it is dissolved for another reason (such as divorce), the community of property is limited to acquisitions or property acquired for payment, excluding both property brought into the marriage and property received free of charge.
  • Galicia: community of property (gananciales) (Article 171 of the Galicia Civil Law Act (Ley de Derecho Civil de Galicia)).

2 How can spouses arrange their matrimonial property regime? What are the formal requirements in this case?

Spouses can stipulate their matrimonial property regime such that the supplementary provisions mentioned in the previous section do not apply.

For this purpose they must sign a public pre-marital agreement before a notary (Articles 1280 and 1315 of the Civil Code), which must be recorded in the civil registry, and the notary must, on the same day as the agreement is signed, send an authorised electronic copy of the public document to the corresponding registrar as evidence in the registration of the marriage (Article 60 of the Civil Registry Act (Ley del Registro Civil)).

The spouses may also modify the matrimonial property regime during the marriage by meeting the same formal requirements (Article 1331 of the Civil Code) and without this infringing third‑party rights (Article 1317 of the Civil Code).

This same possibility is provided for in the Autonomous Communities that have their own civil law for marriages governed by that law: Articles 231(10) et seq. of the Catalonia Civil Code; Article 3 of the Balearic Islands Civil Law Code as regards Mallorca and Menorca (capítulos) and Article 66 of the Balearic Islands Civil Law Code as regards Ibiza and Formentera (espolits); Articles 125 et seq. of the Basque Civil Law Act; Articles 171 et seq. of the Galicia Civil Law Act; Article 185 of the Aragon Regional Legal Code; Act 78 et seq. of the Navarre Regional Civil Law Code.

3 Are there restrictions on the freedom to arrange a matrimonial property regime?

Spouses are free to decide their matrimonial property regime and may choose to apply any regime, including those that are regulated by any of the Spanish civil laws (in which are detailed both the matrimonial property regime to be applied in the absence of an agreement and others that the parties may agree to) and those provided for in the regulations of other states. However, provisions contrary to the law or decency, or which limit the equality of rights belonging to each spouse, must never be incorporated (Article 1328 of the Civil Code and Article 14 of the Spanish Constitution).

4 What are the legal effects of divorce, separation or annulment on the matrimonial property?

Annulment, separation and divorce end the matrimonial property regime. This is provided for in the various regulations of the different matrimonial property regimes (including, for example, Article 1392 of the Civil Code with respect to community of property or Article 1415 of the Civil Code regulating participatory regimes in the Civil Code).

In community of property regimes, the procedure set out in the Code of Civil Procedure (Ley de Enjuiciamiento Civil) must be followed for liquidation. While this is carried out, a form of jointly owned property arises between the spouses, distinct from the other community of property regimes, with a specific legal regime, which remains in place for the duration of the community until, through the appropriate liquidation-division transactions, a specific, individualised share of the property is produced for each of the co-owners.

A community of property (sociedad de gananciales) may be liquidated pursuant to the rules found in Articles 1392 to 1410 of the Civil Code, by mutual agreement in the presence of a notary or, in the absence of such an agreement, before the court, which will be subject to the procedure found in the Code of Civil Procedure.

Under the separation of property regime, it is not necessary to liquidate the matrimonial property regime, since each spouse is owner of his or her property. Property which belongs to both spouses from the beginning is subject to a co-ownership regime, which continues as before following annulment, separation or divorce, without prejudice to either of the co-owners being able to seek its division (as is the case in all situations of co-ownership).

5 What are the effects of death of one of the spouses on the matrimonial property regime?

Death also ends the matrimonial property regime, as provided for in the various regulations of the different matrimonial property regimes (including e.g. Article 1392 of the Civil Code in conjunction with Article 85 thereof with respect to community of property or Article 1415 of the Civil Code regulating participatory regimes in the Civil Code).

Without prejudice to anything the deceased spouse may have arranged in a last will or testament, certain rights are laid down for the widowed spouse depending on the law applicable to succession. Likewise, if the spouse dies intestate, he or she has certain rights in the succession of his or her spouse.

To determine the applicable civil law:

-       In cases where the couple has connections to more than one state, the applicable civil law is determined in line with the provisions of Regulation 650/2012. The provision contained in Article 36 comes into play where Spanish law is applicable, such that when that is the case, the existing Civil Code or autonomous civil regulations apply, depending on the specific connection the testator may or may not have had with an Autonomous Community that has its own civil law regulating the matter.

-       Where successions with no foreign component are concerned, while succession is governed by the civil regulations relating to the regional citizenship the testator had at the time of death, the rights which by operation of law are attributed to the surviving spouse are governed by the same law regulating the effects of marriage, the descendants' legitimate shares always being safeguarded (Articles 16 and 9(8) of the Civil Code).

Below the rights of the surviving spouse are analysed in light of the various civil laws existing in Spain, depending on whether the testator voluntarily arranged his or her succession (most commonly by a will) or died intestate.

-        If the deceased left a will:

  • Civil Code (applies unless the applicable law is that of Aragon, Catalonia, Balearic Islands, Navarre, Basque Country, Galicia), which establishes that the minimum to which the surviving spouse is entitled is the same as when the spouse dies without a will, i.e. usufruct of one third of the estate if there are children or descendants. If there are only ascendants, he or she is entitled to the usufruct of one half of the estate. Finally, the right to usufruct is two-thirds if there are neither ascendants nor descendants (Article 834 et seq. of the Civil Code).
  • Aragon: the celebration of marriage endows each spouse with survivor’s usufruct (usufructo de viudedad) of all the property of the first spouse to die (Article 271 of the Aragon Regional Civil Law Code). This right (which is of the nature of family law and not inheritance law) is held by spouses under the Aragon community of property regime, even if their regional citizenship subsequently changes, excluding in this case the legitimate share established under inheritance law. The surviving spouse is also entitled to survivor’s usufruct when the predeceased had regional citizenship of Aragon at the time of death.
  • Balearic Islands: in Mallorca and Menorca, the surviving spouse's universal right to usufruct is recognized if the testator has no living parents. The usufruct is two-thirds if the testator's parents are alive and one half if there are descendants (Article 45 of the Balearic Islands Regional Civil Law Code). In Ibiza and Formentera, the surviving spouse is not considered a forced heir (legitimario).
  • Catalonia: a widowed spouse who lacks financial resources is assigned a quarter of the estate (Article 452(1) of the Catalonia Civil Code). Likewise, he or she is assigned other rights as regards the assets belonging to the surviving spouse without being included in the estate (Article 231(30) of the Catalonia Civil Code) and the home. Specifically in this regard the concept of one year’s survivor’s pension (año de viudedad) comes into play, consisting in the right to continue using the marital home and to be maintained at the expense of the deceased's estate for one year following the testator's death (Article 231(31) of the Catalonia Civil Code).
  • Galicia: the surviving spouse is entitled to usufruct of half the estate (Article 228 et seq. of the Galicia Civil Law Regulations Act, Ley normas reguladoras del Derecho Civil de Galicia).
  • Navarre: the surviving spouse is entitled to usufruct (usufructo de fidelidad) of all the property and rights of the predeceased (provided the latter had regional citizenship of Navarre at the time of death) which belonged to him or her at the time of death (Act 253 of the Navarre New Legal Code).
  • Basque Country: the widowed spouse or surviving member of a non-marital union is entitled to usufruct of half of all the testator's property if there are descendants. In the absence of descendants, he or she has usufruct of two-thirds of the property (Article 52 of the Basque Country Regional Civil Law Act). This does not apply in Ayala valley - municipalities of Ayala, Amurrio and Okondo, and in the towns of Mendieta, Retes de Tudela, Santacoloma and Sojoguti in the Artziniega municipality (Article 89 of the Basque Country Regional Civil Law Act), which are governed by testamentary freedom. Nor does it apply in the lowlands of Vizcaya, Aramaio and Llodio, where special rules on family property (bienes troncales) are in effect (Articles 61 et seq. of the Basque Regional Civil Law Act).

-        If the deceased has not made a will (intestate succession):

  • Civil Code (applied unless the applicable law is that of Aragon, Catalonia, Balearic Islands, Navarre, Basque Country, Galicia): the widowed spouse is entitled to usufruct of one third of the estate if there are children or descendants, half of the estate if there are only ascendants, and he or she is named sole heir if there are neither ascendants nor descendants (Article 834 et seq. and Article 944 of the Civil Code).
  • Aragon: the widowed spouse inherits non-family property (bienes no troncales) after the ascendants, without prejudice to the survivor’s usufruct referred to under testate succession, which is always retained (Article 517 of the Aragon Regional Legal Code). Family property refers to property that has remained in the home or family of the testator for two generations immediately prior to his or her generation, regardless of the property’s direct origin and means of acquisition, as well as property which the testator received free of charge from ascendants or collateral relatives to the sixth degree. This property is transferred to certain relatives (parientes troncales) listed in Article 526 of the Aragon Regional Legal Code.
  • Balearic Islands: the provisions of the Civil Code (mentioned above) apply, while in Mallorca and Menorca, at least, the widowed spouse enjoys universal usufruct if there are no parents, two-thirds usufruct if the testator's parents are alive and half if there are descendants.
  • Catalonia: if there are no descendants, the widowed spouse inherits all property of the estate before the deceased's ascendants (Articles 441(2) and 442(3) of the Catalonia Civil Code). If the widowed spouse shares the succession with the testator's children or their descendants, he or she is entitled to universal usufruct of the estate (Articles 441(2) and 442(3) of the Catalonia Civil Code).
  • Galicia: the same regime applies as found in the Civil Code (Article 267 of the Galicia Civil Law Regulations Act).
  • Navarre: the spouse inherits non-family property after siblings and ascendants. As regards family property, the spouse is entitled to usufruct of all property and rights of the predeceased (provided the latter had Navarre regional citizenship at the time of death) that belonged to him or her at the time of death (Act 304 et seq. of the Navarre New Legal Code).

Basque Country: as regards family property, solely in respect of real estate acquired by the spouses during the marriage, both spouses or members of the non-marital partnership are heirs (Article 66 of the Basque Country Regional Civil Law Act). The surviving spouse inherits non‑family property in the absence of descendants (Articles 110 et seq. of the Basque Country Regional Civil Law Act).

6 Which authority has the competence to decide in a case relating to a matrimonial property regime?

Jurisdiction is held by the Court of First Instance (Juzgado de Primera Instancia) that is hearing or has heard the annulment, separation or divorce proceedings, or before which actions to dissolve the matrimonial property regime are being or have been brought for any of the reasons provided for in civil legislation (Article 807 of the Code of Civil Procedure).

In those judicial districts with specialized family law courts, the latter hear the proceedings for dissolution and liquidation of the property regime, even if the proceedings do not result from a prior annulment, separation or divorce proceeding.

7 What are the effects of the matrimonial property regime on legal relationships between a spouse and a third party?

In general and under our common civil system, Article 1373 of the Civil Code provides that each spouse is liable with regard to third parties for his or her own debts with his or her personal assets; if the personal property is insufficient to discharge the debts, the creditor (third-party) may request seizure of community property. However, the non-debtor spouse may request that joint property be replaced by the share held by the debtor spouse in the community of property, in which case the seizure entails the dissolution of the community of property.

A provision of similar scope is found in the Code of Civil Procedure for the purposes of enforcement when the debt is personal but the community of property must nevertheless assume liability.

Specifically, it is provided (Article 1365 of the Civil Code) that community property is used to pay the creditor (third party) for the debts incurred by a spouse: 1) in the exercise of domestic authority or in the management or disposal of community property which by law or contract belongs to him or her; and 2) in the regular exercise of his or her profession, artistic activity or trade or in the regular management of his or her personal property.

There are likewise provisions in the Commercial Code (Código de Comercio) for cases where one of the spouses is a trader.

As regards encumbrances or disposal of jointly owned property, unless separate provision has been arranged for in a pre-marital agreement, the consent of both spouses is required. If the disposal is free of charge (e.g. donation), disposal carried out by just one spouse is null and void.

Nonetheless, in the interest of security of trade, the Civil Code indicates that acts of property management and disposal of money or securities are valid when conducted by the spouse in whose name they are registered and who has possession of them.

As regards registered immoveable property, in order to register the property in the name of the married person and the acquired right in relation to the current or future rights of the community of property, the name of the spouse and the matrimonial regime must be identified for the benefit of a third party consulting the registry. If nothing is declared in the registry, a third party acting in good faith who acquires by payment property from the person who appears in the registry with authority to carry out the transfer retains ownership of the property thus acquired.

8 A short description of the procedure for the division, including partition, distribution and liquidation, of matrimonial property in this Member State.

This is regulated in Articles 806 et seq. of the Code of Civil Procedure. It has the following steps:

a)      Inventory drawn up of the property included in the community of property.

This can occur at the same time as the annulment, separation or divorce proceedings or the dissolution of the matrimonial property regime, even if in practice it begins once the final judgment dissolving the regime has been issued.

The request must include a proposed inventory. An appearance is made before an officer of the court (Letrado de la Administración de Justicia), during which, based on the proposal, a joint inventory is sought. If there is a dispute over an asset, a hearing is held before a judge for a ruling, which can be appealed.

b)      Liquidation.

To begin this step the decision dissolving the matrimonial property regime must be final. It begins with a liquidation proposal and appearance before an officer of the court in order for the spouses to reach an agreement on the payment of compensation and reimbursement due to each spouse, and the proportional division of the remainder by establishing lots.

If no agreement is reached, an estate partitioner is named to handle the division transactions. Once the proposal has been made, the spouses can accept or reject it; in the latter case the disagreement is resolved by court ruling, which can be appealed

c)      Delivery of assets and registration in the property register.

Once the liquidation transactions are finally approved and the lots established, the officer of the court is responsible for delivering the assets and sending property titles to each spouse.

In addition to this procedure, there is another, simpler procedure under which liquidation takes place by mutual agreement of the spouses or between the surviving spouse and the heirs of the predeceased spouse, pursuant to the rules of the Civil Code and before a notary.

In both cases, if there is immoveable property among the assets subject to liquidation, a copy of the decree approving the division transactions, the judgment establishing the division of assets or the notarised public document on the liquidation of the community of property may be recorded in the property register.

9 What is the procedure and documents or information typically required for the purpose of registration of immovable property?

Acts and contracts related to ownership and other rights in rem in immoveable property may be recorded in the property register. They must be authorised in a public document, which is brought to the registry in whose territorial jurisdiction the immoveable property is located, and the corresponding taxes and fees paid.

The document must be presented in authentic form and accompanied by certification from the Spanish civil registry (if the marriage was registered there) acknowledging dissolution of the matrimonial property regime for it to be effective with regard to third parties. If the original document was issued outside the country, it must be duly legalised and, should the registrar request it, translated. This regime is not applicable to legal documents and judicial decisions covered by European regulations, which circulate pursuant to the relevant provisions.

Last update: 22/10/2020

The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.
Member States in charge of the management of national content pages are in the process of updating some of the content on this website in the light of the withdrawal of the United Kingdom from the European Union. If the site contains content that does not yet reflect the withdrawal of the United Kingdom, it is unintentional and will be addressed.

Matrimonial property regimes - France

1 Is there a statutory matrimonial property regime in this Member State? What does it provide?

A matrimonial property regime is the set of legal rules governing property relationships between spouses and with third parties. It sets out the rules applicable to spouses in respect of powers and ownership of assets during or on dissolution of the regime, by death or divorce.

If spouses have not opted for a matrimonial property regime under a marriage contract they are subject to the statutory regime of community of after-acquired property (communauté réduite aux acquêts) defined in Article 1401 et seq. of the Civil Code (Code civil).

That statutory community distinguishes between three of groups of assets: the separate assets of each spouse and assets jointly owned by the spouses.

All assets owned by the spouses before the marriage and those acquired during the marriage by inheritance, gift or legacy (Article 1405 of the Civil Code) remain separate property. Certain personal assets such as clothing, compensation for physical injury or non-pecuniary damage, etc., as defined in Article 1404 of the Civil Code, also remain separate. Assets acquired incidentally or in exchange for separate property also constitute separate assets (Articles 1406 and 1407 of the Civil Code).

Community, on the other hand, consists of assets acquired together or separately by the spouses during the marriage, including their earnings and wages. Article 1402 of the Civil Code also provides for a presumption of community, allowing any asset that cannot be proved to be separate to be classed as community of after-acquired property.

In principle each spouse has the right to administer or dispose of the common assets on their own (Article 1421 of the Civil Code). However, the consent of both parties is required for the most serious actions such as disposal without payment, transfer and establishment of rights in rem on immovable property, goodwill, non-negotiable shares, etc. (Articles 1422 and 1424 of the Civil Code).

2 How can spouses arrange their matrimonial property regime? What are the formal requirements in this case?

As regards the basic rules, matrimonial property agreements are in principle not subject to any restrictions. Article 1387 of the Civil Code provides that ‘the law only governs the marriage relationship in respect of assets in the absence of specific agreements the spouses may enter into as they deem appropriate, provided that these do not breach public morality or the following provisions’.

Hence spouses are free to decide on their matrimonial property regime, provided that they conform to the mandatory primary regime set out in Article 212 et seq. of the Civil Code.

The Civil Code describes several possible types of contractual regime: contractual community of property (such as the full community system defined in Article 1526 of the Civil Code), separation of property (Article 1536 et seq. of the Civil Code), or share in after‑acquired property (Article 1569 et seq. of the Code).

As regards the formal requirements, in order to be valid, matrimonial property agreements must be drawn up by deed before a notary before the marriage takes place (Articles 1394 and 1395 of the Civil Code). They may be amended by notarial deed by the same procedure, in accordance with the conditions of Article 1397 of the Civil Code. Since the entry into force of Law No 2019-222 of 23 March 2019 on programming for 2018-2022 and reform for the judicial system (loi no 2019-222 du 23 mars 2019 de programmation 2018‑2022 et de réforme pour la justice), judicial confirmation of the change of regime is no longer required in principle (unless there is any objection from creditors or adult children).

3 Are there restrictions on the freedom to arrange a matrimonial property regime?

The principle of freedom to decide on matrimonial property agreements is restricted by the mandatory conditions of the primary regime, which are applicable to all regimes without distinction.

These are set out in Article 212 et seq. of the Civil Code. They include, in particular, the provisions protecting the family home (Article 215, third paragraph), the rules applicable to the contribution to household expenses (Article 214) and joint and several liability for household debts (Article 220).

4 What are the legal effects of divorce, separation or annulment on the matrimonial property?

In the event of divorce, judicial separation or annulment of the marriage, the matrimonial regime is dissolved and liquidated.

Liquidation of the matrimonial property regime is a process carried out before a notary in which the assets and debts of each spouse are determined and assessed.

However, the use of a notary is not compulsory when there is no immovable property to be divided.

The causes of dissolution of community are set out in Article 1441 of the Civil Code: death of one of the spouses, a spouse reported missing, divorce, judicial separation, separation of property or a change of matrimonial regime.

As regards the date on which the divorce becomes effective, in the case of divorce by mutual consent the marriage is dissolved on the date on which the divorce agreement concluded by private deed countersigned by lawyers becomes enforceable. In the case of divorce through the courts, it is the date on which the divorce decision becomes final.

5 What are the effects of death of one of the spouses on the matrimonial property regime?

The death of one spouse is a cause of dissolution of the matrimonial property regime. It is dissolved on the date of death, for relations both between the spouses and with third parties. For couples married under the statutory community of property regime, Article 1441 of the Civil Code provides that community is dissolved by the death of one of the spouses.

Thus a double liquidation is required when a married person dies: liquidation first of the matrimonial property regime and then of the succession.

According to Article 763 of the Civil Code, if the surviving spouse occupied as their main residence a property owned by both spouses or belonging entirely to the estate, they have the right to use and enjoy the property free of charge for one year. That is an effect of the marriage.

6 Which authority has the competence to decide in a case relating to a matrimonial property regime?

The family court judge (juge aux affaires familiales, JAF) has jurisdiction for matrimonial property regimes (Law No 2009-506 of 12 May 2009 on simplification of the law (loi n° 009506 du 12 mai 2009 sur la simplification du droit), Decree No 2009-1591 of 17 December 2009 on proceedings before the family court judge relating to matrimonial property regimes and ownership in common (décret n° 2009-1591 du 17 décembre 2009 relatif à la procédure devant le juge aux affaires familiales en matière de régimes matrimoniaux et d’indivisions), Circular CIV/10/10 of 16 June 2010 on the powers of the family court judge in respect of liquidation (circulaire CIV/10/10 du 16 juin 2010 sur les compétences du juge aux affaires familiales en matière de liquidation)).

In a divorce by mutual consent not involving the courts, the agreement between the spouses is in the form of a private document countersigned by lawyers, the original document being filed with a notary (Article 229-1 of the Civil Code). With a divorce by mutual consent, the matrimonial property regime is to be liquidated at the time of divorce.

The agreement must contain a settlement statement for the matrimonial property regime, which is to be notarially recorded when the liquidation relates to property requiring land registration (in particular immovable property) (Article 229-3 of the Civil Code). Two lawyers and a notary are then involved.

As a general rule a notary must be used to liquidate a matrimonial property regime whenever the liquidation concerns at least one property requiring land registration.

Only contentious or non-agreed cases are decided in court.

7 What are the effects of the matrimonial property regime on legal relationships between a spouse and a third party?

The choice-of-law rule applicable to the matrimonial property regime by the competent authority in France depends firstly on the date they were married.

For couples married before 1 September 1992 where there is no marriage contract, ordinary law precedents apply. The law applicable is the law the couple implicitly intended to adopt. The case-law establishes a rebuttable presumption in favour of the law of the first fixed marital home after the marriage.

For couples married between 1 September 1992 and 28 January 2019, reference should be made to the Hague Convention of 14 March 1978 on the law applicable to matrimonial property regimes. If the couple have not expressly designated the law applicable to their matrimonial property regime in accordance with the conditions of Article 3 of the Convention, Article 4 provides that their matrimonial property regime is governed by the internal law of the state in which the spouses establish their first habitual residence after marriage. If the spouses do not have their habitual residence in the same state, their regime is governed by the law of their common nationality. If they do not have a common nationality, it is the law most closely related to the situation. However, Article 4(2) provides for two other situations in which the law of the first common habitual residence may be replaced by the law of their common nationality.

Other possibilities for an automatic or voluntary change to the applicable law are also provided for in Articles 6 and 7 of the Convention.

For couples married from 29 January 2019 onwards and thus governed by Council Regulation (EU) 2016/1103 of 24 June 2016 on matrimonial property regimes, the rule is that, where the couple has not expressly made a choice of law (in the conditions set out in Articles 22 and 23 of the Regulation), according to Article 26 of the Regulation the law applicable to their matrimonial property regime is the law of:

- the first common habitual residence of the couple after marriage;

- otherwise, the law of the common nationality of the couple at the time of the marriage;

- otherwise, the law with which the couple both have the closest links at the time of the marriage, having regard to all the circumstances.

Unlike under the Hague Convention, the applicable law may be changed voluntarily, but not automatically.

The Regulation is applicable to couples who married before 2019 but made a choice of law from 29 January 2019.

International private law provisions on relations between spouses and third parties:

Article 28 of the Council Regulation on matrimonial property regimes designates the applicable law for relations between a spouse and third parties. In order to protect the rights of third parties, the Regulation provides that a spouse may not invoke the law applicable to their matrimonial property regime against a third party in a dispute unless the third party knew or should have known of that law. Article 28(2) specifies the cases in which the third party is deemed to possess the knowledge of the law applicable to the matrimonial property regime.

Domestic law provisions on relations between spouses and third parties:

Article 220 of the Civil Code, a primary regime provision applicable irrespective of the matrimonial property regime of the spouses, governs relations between spouses and third parties. The article establishes a principle of joint and several liability of spouses for household debts: ‘Each spouse shall be empowered to enter on their own into contracts for household maintenance or children’s education. A spouse is jointly and severally liable for any debt thus incurred by the other. However, the joint and several liability shall not apply to expenditure that is manifestly excessive in the light of the household’s lifestyle, the usefulness or non-uselessness of the transaction or the good or bad faith of the contracting third party. Nor shall it apply if it was not incurred with the consent of both spouses for hire purchase or loans, unless these are for small sums necessary for everyday needs and the cumulative amount of the sums, in the case of multiple loans, is not manifestly excessive having regard to the household’s lifestyle’.

Under the statutory community regime, creditors may in principle sue for payment of debts for which the couple are liable on common property, under Article 1413 of the Civil Code.

However, the earnings and wages of a spouse may only be seized by the creditors of the other spouse if the debt was incurred for household maintenance or children’s education, in accordance with Article 220 of the Civil Code (Article 1414 Civil Code).

Common property is also not committed when one of the spouses takes out a security or loan on their own. Without the express agreement of their spouse, only the separate assets and income of the contracting spouse are committed in such cases (Article 1415 of the Civil Code).

8 A short description of the procedure for the division, including partition, distribution and liquidation, of matrimonial property in this Member State.

In order to liquidate matrimonial property, the various groups of assets (separate and common property, payments due and debts between spouses, assets and liabilities) need to be identified. If there are groups to be divided, they are then divided in order to distribute the property and assets between the spouses.

In the community of after-acquired property regime, the principle is that the community is shared half and half between spouses. However, the parties may have agreed on a different, unequal, partition in their marriage contract.

The partition of the common property may be by amicable settlement or through the courts. With an amicable settlement, a partition agreement is drawn up between the spouses. This will be in the form of a notarial deed if it relates to property requiring land registration. Partition will be arranged through the courts if the parties fail to reach agreement on the liquidation or distribution of property. The judge will rule on applications for continued joint possession or preferential allocation (Article 831 of the Civil Code).

Whether the partition is by amicable settlement or through the courts, the process ends with division into portions, according to an equal partition principle based on equal value. Thus each beneficiary is allocated property to a value equal to their rights in the co‑ownership. If the composition of the group is such that it is impossible to create portions of equal value, the inequality is offset by a balancing payment. Certain assets might also be preferentially allocated to one beneficiary’s share.

The partition has declaratory effect; in other words each spouse is considered, by a legal fiction, always to have owned the property included in their share, and never to have owned the other property in the partition.

9 What is the procedure and documents or information typically required for the purpose of registration of immovable property?

In the case of partition by amicable settlement of property requiring land registration (in other words immovable property), the deed of liquidation and partition must be received in notarised form.

Article 710-1 of the Civil Code stipulates that, ‘in order to give rise to land registration formalities, any act or right must be based on a notarised act received by a notary practising in France, a court decision or an authentic instrument from an administrative authority’.

The spouses must then pay, firstly, a fee of 2.5% calculated on the basis of the net value of the divided assets and, secondly, the fees and emoluments of the notary.

Last update: 10/06/2020

The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.
Member States in charge of the management of national content pages are in the process of updating some of the content on this website in the light of the withdrawal of the United Kingdom from the European Union. If the site contains content that does not yet reflect the withdrawal of the United Kingdom, it is unintentional and will be addressed.

Matrimonial property regimes - Malta

1 Is there a statutory matrimonial property regime in this Member State? What does it provide?

The Maltese State offers parties who want to contract marriage under Maltese law, the freedom to choose the regime that will regulate their matrimonial property. However, the main matrimonial property regime in Malta is the Community of Acquests. This regime operates by operation of law in any marriage, unless the parties who are already married or are about marry decide that their property regime shall be regulated by another regime that does not go against the spirit of Maltese law by means of a public deed. Other types of matrimonial property regimes existing in Malta, apart from that of the Community of Acquests, are the Separation of Estates and the Community of Residue under Separate Administration.

The Community of Acquests as a statutory matrimonial regime in Malta, provides that anything acquired by the parties following marriage will form part of this Community of Acquests and therefore belongs to both parties in equal shares. Maltese law specifically provides what shall form part of the Community of Acquests, and exludes donations, inheritances and the paraphernal property of each party.

The Separation of Estates as a regime that the parties may choose instead of the Community of Acquests, provides that each party has the right to have absolute control over and administer property acquired before and after marriage, u the consent of the other party shall not be required.

The Community of Residue under Separate Administration as another regime which the parties may opt for instead of the Community of Acquests, provides that each spouse has the right to acquire, keep and administer property acquired on his or her behalf as if it were his or her exclusive property. However, through this regime, the spouses are not precluded from obtaining common property, which would then be administered jointly.

2 How can spouses arrange their matrimonial property regime? What are the formal requirements in this case?

As regards the Community of Acquests regime, the general rule is that both spouses are obliged to regulate and administer their matrimonial property jointly. However, with regard to this particular regime, Maltese law distinguishes between ordinary administration, that is those acts that may be carried out by one of the spouses alone, and extraordinary administration, that is those acts that must be carried out by both jointly. Only acts of extraordinary administration are listed by Maltese law, and whatever is not expressly contained in law is to be considered to constitute an act of ordinary administration. Therefore a formal requirement that should always be observed for the operation of the regime of the Community of Acquests is that of the consent of both spouses. Where the consent of the parties has not been given as regards a transfer or establishment of a real or personal right to immovable or movable property, the act may be annulled at the request of the party who withheld his or her consent.

As regards the Separation of Estates regime, the general rule is that each of the spouses has the right to regulate and manage the property in his or her name without the consent of the other spouse.

As regards the Community of Residue under Separate Administration regime, the general rule is that when a spouse chooses to acquire property on his or her own, he or she would not have to obtain the consent of the other spouse beforehand, and the acquiring spouse would have the right to regulate and administer said acquisition on his or her own. On the other hand, when both spouses acquire something together, both would have given their consent and therefore both would have the right to regulate and administer said acquisition together.

3 Are there restrictions on the freedom to arrange a matrimonial property regime?

When the regime of Community of Acquests is chosen, the spouses are obliged to do everything together. Therefore they have no freedom as to how to regulate and administer, with the exception of those acts of ordinary administration which do not require their joint consent.

On the other hand, when the regime of Separation of Estates is chosen, each spouse is free to do as he or she thinks fit with the property in his or her name without any interference from the other spouse.

As regards theregime of Community of Residue under Separate Administration, where a spouse acquires property without the consent of the other spouse, he or she shall have the freedom to regulate the regime without any restrictions. However, if a purchase is made on behalf of both spouses, said spouses may not do as they please individually but must act jointly.

4 What are the legal effects of divorce, separation or annulment on the matrimonial property?

During the validity of the regime of the Community of Acquests, the law clearly stipulates that this regime operates as of the day of marriage and ends as soon as the marriage has been dissolved, that is via divorce. Moreover, the law provides further that in the event of personal separation, legal division of the property may be requested.

In cases concerning the regime of the Community of Residue under Separation Administration, the law stipulates that it would end, amongst others, with dissolution of marriage or personal separation.

However, in case the marriage is regulated by the Separation of Estates regime, each spouse whose marriage has ended, whether in legal separation or annulment, continues to regulate and administer the assets acquired in their respective names.

Therefore the effects of divorce, separation or annulment, concerning matrimonial property, are that whatever was acquired is divided between the spouses through an amicable settlement or via a decision of the competent court.

5 What are the effects of death of one of the spouses on the matrimonial property regime?

Upon death of one of the spouses, the matrimonial property regime ends and Maltese succession laws begin to apply so that the property of the deceased spouse is divided between the heirs. The main factor to be taken into consideration is whether the deceased party died testate or intestate.

6 Which authority has the competence to decide in a case relating to a matrimonial property regime?

The competent authority to decide on matters related to matrimonial property regimes is the Civil Court (Family Section).

7 What are the effects of the matrimonial property regime on legal relationships between a spouse and a third party?

Once a matrimonial property regime begins to operate between the spouses, it gives rise to a legal relationship between the spouses and third parties, when this is the case. Third parties have the right to exercise their legal rights against the spouses jointly or separately, as the case may be, depending on with whom they have entered into a contract or debt.

8 A short description of the procedure for the division, including partition, distribution and liquidation, of matrimonial property in this Member State.

The procedure for division of property normally takes place at the stage where the spouses have initiated separation or divorce proceedings. These types of procedures require the spouses to start a process of mediation, before resorting to the competent Court.

If the mediation is successful, the spouses may separate amicably in which case the spouses agree on their reciprocal rights, on their rights over their children and on the division of matrimonial property via a public deed which is then scrutinised by the competent Court to ensure that balance is kept between the rights of the spouses. After approval by the competent Court, this contract is notarised and registered in order to be effective for all purposes at law, including with regard to third parties.

If the mediation procedure is not successful and the parties do not come to an amicable settlement, they must institute legal proceedings before the competent Court, where they ask for the dissolution of the matrimonial property regime in order for said property to be divided between them. When the decision of the competent Court becomes res judicata, said judgement is registered in order to be effective for all purposes at law, including with regard to third parties.

9 What is the procedure and documents or information typically required for the purpose of registration of immovable property?

To be able to register immovable property in Malta, the Notary Public who drafted the original contract for that immovable property must present a note of notarisation to the Public Registry for it to be notarised. As soon as there is a note of notarisation, the immovable property is registered and the contract is binding on the parties to the contract as well as on third parties.

Last update: 05/02/2020

The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.
Member States in charge of the management of national content pages are in the process of updating some of the content on this website in the light of the withdrawal of the United Kingdom from the European Union. If the site contains content that does not yet reflect the withdrawal of the United Kingdom, it is unintentional and will be addressed.

Matrimonial property regimes - Austria

1 Is there a statutory matrimonial property regime in this Member State? What does it provide?

Under Austrian law, the default matrimonial property regime is that of separation of property (Gütertrennung). Each spouse retains the property he or she brought into the marriage and becomes sole owner of the property acquired by him or her (Sections 1233 and 1237 of the Austrian Civil Code, Allgemeines Bürgerliches Gesetzbuch). Each spouse is also the sole creditor to his or her debtors and the sole debtor to his or her creditors.

2 How can spouses arrange their matrimonial property regime? What are the formal requirements in this case?

A property regime different from the default one can be chosen by the spouses through a marriage contract (Ehepakt). Marriage contracts require a notarial deed in order to be valid (Section 1 of the Notarial Deed Act, Notariatsaktsgesetz).

3 Are there restrictions on the freedom to arrange a matrimonial property regime?

In principle, spouses are free to adopt the matrimonial property regime of their choice. However, a marriage contract cannot, for example, provide for a complete mutual waiver of maintenance in an intact marriage.

4 What are the legal effects of divorce, separation or annulment on the matrimonial property?

The statutory ‘complete’ separation of property applies only until the declaration of marriage invalidity, divorce or annulment, since at that point a division must take place in which ownership status is not the decisive criterion. The dissolution of marriage is governed by the principle of division of matrimonial property. Matrimonial assets (objects which were used by both spouses, for example the family home, a car or household goods) are divided up, and matrimonial savings are also divided. The latter include assets of any kind that the spouses acquired while they were married and which, depending on their nature, are usually intended for realisation.

5 What are the effects of death of one of the spouses on the matrimonial property regime?

If one of the spouses living under community of property (Gütergemeinschaft) (rare in practice) dies, the common property is divided. The net assets remaining after deduction of all debts are allocated according to the agreed proportion to the surviving spouse and to the deceased's estate. In the standard case of the separation of property regime (Gütertrennung), the statutory share received by the surviving spouse is determined by which other relatives of the deceased also inherit. The surviving spouse is entitled to a third of the estate if the deceased partner left surviving children or their descendants; two-thirds of the estate if the deceased partner left surviving parents; otherwise, the entire estate. The spouse is among the mandatory heirs who are entitled to a reserved portion of the estate (pflichtteilsberechtigte Personen). The spouse’s reserved portion is half of what they would receive under the succession order of precedence.

6 Which authority has the competence to decide in a case relating to a matrimonial property regime?

Following divorce, annulment or declaration of marriage invalidity, under Sections 81 et seq. of the Marriage Act (Ehegesetz) property is dealt with in accordance with either a mutual agreement or a court decision.

7 What are the effects of the matrimonial property regime on legal relationships between a spouse and a third party?

In principle, a spouse can neither confer particular rights nor impose obligations on third parties without the other spouse’s cooperation. It is only under ‘agency implied in fact’ (Schlüsselgewalt) that a spouse who manages the joint household and has no income can represent the other spouse in legal transactions of everyday life that are carried out for the joint household and do not exceed a certain level corresponding to the standard of living of the spouses. This does not apply if the other spouse has declared to a third party that they do not wish to be represented by their spouse. If the third party cannot determine on the basis of the circumstances that the acting spouse is acting as a representative, then both spouses are jointly and severally liable.

The community of property regime – where specifically agreed upon instead of the separation of property regime – merely creates a commitment in the relationship between the spouses that one spouse cannot dispose of their share of the common property without the consent of the other spouse. There is only real effect as regards property if an entry is made in the land register of a sale and encumbrance prohibition under Section 364c of the Civil Code or of a restriction under Section 1236 of the Civil Code stating that as long as the community of property regime applies, no party may unilaterally dispose of their own half or share.

8 A short description of the procedure for the division, including partition, distribution and liquidation, of matrimonial property in this Member State.

The division of property in the case of divorce, annulment or declaration of invalidity of marriage under Sections 81 et seq. of the Marriage Act is independent of fault, although fault can be taken into account in considerations of fairness. The property is divided on the basis of either a mutual agreement of the parties or a court decision applied for by one of the parties. Otherwise, separation of property continues to apply, that is, each spouse keeps their own property. The application must be filed within a year of the divorce decree taking legal effect. Both the matrimonial property and matrimonial savings are divided up. Under Section 82 of the Marriage Act, the following are excluded from the division of the property: objects which a spouse brought into the marriage or inherited, objects gifted by third parties, objects used by one spouse alone for personal or professional purposes, and objects belonging to a company or shares in a company, unless they are just investments.

9 What is the procedure and documents or information typically required for the purpose of registration of immovable property?

An application for entering the property right in the land register must be filed with the District Court in whose jurisdiction the immovable property to be registered is located.

The application must be filed in writing and signed by the applicant. In principle, the signature need not be certified unless a registration declaration (Aufsandungserklärung) is included in the application.

A public or private document containing the legal grounds for acquisition of the property (for example a purchase contract) and bearing the certified signatures of the parties must accompany the application. In addition to exact details of the property, private documents must include the registration declaration.

The registration declaration is an explicit declaration of consent to registration (entry in the land register) by the person whose right is being restricted, encumbered, nullified or transferred to another person (the seller, in the case of a purchase contract). The registration declaration must be certified by a court or notary and signed by the contracting parties. The registration declaration can also be submitted as part of the application for entry of the property right in the land register. In this case, the signatures on the application must be certified by a court or a notary.

A tax compliance certificate in line with Section 160 of the Federal Tax Code (Bundesabgabeordnung) must accompany the application. The certificate constitutes confirmation from the Tax Authority that there are no obstacles to entry in the land register in terms of taxes due.

If the application is drafted by a lawyer or a notary, it must be filed electronically. In this case, the accompanying documents must be placed in an electronic document archive. The tax compliance certificate from the Tax Authority can then be replaced by a self-assessment declaration drafted by the lawyer or notary.

Last update: 05/02/2020

The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.
Member States in charge of the management of national content pages are in the process of updating some of the content on this website in the light of the withdrawal of the United Kingdom from the European Union. If the site contains content that does not yet reflect the withdrawal of the United Kingdom, it is unintentional and will be addressed.

Η πρωτότυπη γλωσσική έκδοση πορτογαλικά αυτής της σελίδας τροποποιήθηκε πρόσφατα. Η γλωσσική έκδοση που βλέπετε τώρα βρίσκεται στο στάδιο της μετάφρασης.

Matrimonial property regimes - Portugal

1 Is there a statutory matrimonial property regime in this Member State? What does it provide?

Yes. As a rule, spouses are free to draw up a marriage contract in order to choose their matrimonial property regime. This contract is known as a prenuptial agreement (convenção antenupcial - Article 1698 of the Civil Code (Código Civil)).

However, where spouses do not choose a regime or in certain cases where the prenuptial agreement is invalid, the statutory matrimonial property regime is the community of acquired property regime (regime da comunhão de adquiridos), in accordance with Articles 1717 and 1721 of the Civil Code.

In this case, the legal provisions of Articles 1721 to 1731 of the Civil Code have to be applied in order to determine which property is jointly owned and which property is separately owned.

Exceptionally, there are cases (set out in Article 1720 of the Civil Code) in which the mandatory regime is the separate property regime (regime de separação de bens).

2 How can spouses arrange their matrimonial property regime? What are the formal requirements in this case?

Spouses can arrange their matrimonial property regime by entering into a prenuptial agreement, through which they can choose one of the three property regimes set out in the Civil Code, or by agreeing something different within the limits of the applicable law (Article 1698 of the Civil Code).

The three matrimonial property regimes set out in the Civil Code are:

  • the community of acquired property regime (regime da comunhão de adquiridos - Articles 1721 to 1731 of the Civil Code);
  • the community of property regime (regime da comunhão geral de bens - Articles 1732 to 1734 of the Civil Code);
  • the separate property regime (regime da separação de bens - Articles 1735 to 1735 of the Civil Code).

As indicated above, spouses can agree something different within the limits of the applicable law. This has to be the case where the matrimonial property regime is the community of acquired property regime, but the spouses agree, in a prenuptial agreement, that a specific immovable property acquired by one of them prior to the marriage (for example, a family home) will become a jointly owned property after the marriage because they want both of them to be responsible for the respective mortgage

In terms of formal requirements, the prenuptial agreement must take the form of an authentic document drawn up before a notary (public deed) or a declaration made before a registrar (Article 1710 of the Civil Code and Articles 189 to 191 of the Civil Register Code (Código do Registo Civil)).

As a rule, the prenuptial agreement must be concluded before the marriage. In accordance with Article 1714 of the Civil Code, the prenuptial agreement and the matrimonial property regime cannot be changed after the marriage, except as otherwise provided by Article 1715 of the Civil Code.

Chapter IX, Section III, of the Civil Code contains the legal provisions applicable to prenuptial agreements (from Article 1698 to Article 1716).

The legal provisions applicable to marriage gifts and gifts between spouses can be found in Chapter X, Sections I and II, Articles 1753 to 1766 of the Civil Code.

3 Are there restrictions on the freedom to arrange a matrimonial property regime?

Article 1720 of the Civil Code identifies two cases in which the mandatory matrimonial property regime is the separate property regime: when the marriage is celebrated without going through the preliminary marriage process, and when the spouses are 60 years old or over.

Apart from in these cases, spouses are free to choose within the limits of the applicable law.

4 What are the legal effects of divorce, separation or annulment on the matrimonial property?

In accordance with Article 1688 of the Civil Code, the marriage relationship between spouses ends with divorce or annulment of the marriage, without prejudice to the provisions on maintenance. The legal separation of spouses and their property does not dissolve the marriage, but the legal effects in the case of separation are very similar to divorce, as will be explained below.

With regard to the partition of property and payment of debts, Article 1689 of the Civil Code states that, once the matrimonial property regime has ended, the spouses or their respective heirs are entitled to each receive their personal property and their share of any jointly owned property. The spouse who owes a debt to the jointly owned property must settle that debt.

With regard to debts, priority will be given to the payment of joint debts using the jointly owned property, and it is only after such debts have been paid that the remaining debts will be settled. If one of the spouses owes a debt to the other spouse, he or she must pay that debt using his or her share of the jointly owned property. Where there is no jointly owned property, the spouse must pay the debt using his or her personal property.

Legal effects of divorce

The effects of divorce are set out in Articles 1788 to 1793‑A of the Civil Code.

As a general rule, divorce dissolves the marriage and has the same consequences as dissolution of the marriage by death.

In terms of succession, in accordance with Article 2133 of the Civil Code, following the divorce judgment the former spouse loses the status of legal heir even where the divorce judgment is delivered after the other spouse’s death.

Under Portuguese law, as a rule, the matrimonial property is not partitioned during the divorce proceedings, but only afterwards. However, in the case of divorce by mutual consent before the Civil Registry Office, spouses can immediately agree on how the matrimonial property will be partitioned.

As regards the effects of divorce, the general rule is that:

  • the divorce takes effect from the date when the divorce judgment becomes final.

The property effects of divorce between spouses are as follows:

  • The divorce has retroactive property effects between the spouses from the date when the divorce proceedings were brought.
  • However, at the request of either spouse, the property effects of their divorce can be backdated to the date when the spouses stopped cohabiting, if this date has been verified in the proceedings.
  • In the partition of property following divorce, neither spouse can receive more than they would have received if the marriage had been celebrated under the community of acquired property regime.
  • Each spouse loses all the benefits received or to be received as a result of the marriage (e.g. gifts between spouses; gifts made by a third person to the couple with a view to their marriage). In this case, the person making the gift can decide that the benefit will accrue to the couple’s children.
  • The aggrieved spouse has the right to seek compensation for the damage caused by the other spouse, under the general terms of civil liability and in the ordinary courts.
  • Where the grounds for divorce relate to a mental issue of one of the spouses, the spouse applying for the divorce must compensate the other spouse for the personal injury caused by the dissolution of the marriage. This claim must be made during the divorce proceedings themselves.
  • Each spouse can ask the court to allow him or her to rent the family home, whether it is jointly owned or owned by the other spouse.

The property effects of divorce on relationships between spouses and third parties are as follows:

  • The spouses can only invoke the property effects of divorce against third parties after the date when the judgment was registered in the Civil Register.

With regard to maintenance obligations between former spouses, Articles 2016 and 2019 of the Civil Code state that:

  • as a general rule, after divorce, each former spouse has a duty to support himself or herself;
  • each former spouse has a right to maintenance, regardless of whether or not the divorce was by mutual consent, but the right to maintenance can be denied for reasons of fairness;
  • the right to maintenance ends if the beneficiary remarries.

Effects of legal separation of spouses and their property

With regard to legal separation, Article 1794 of the Civil Code refers to the provisions on divorce, as set out above, with one exception: legal separation does not dissolve the marriage.

Aside from this one exception, in accordance with Articles 1795‑A, 2016 and 2133 of the Civil Code, the effects of legal separation on matrimonial property, maintenance obligations and succession are the same as the effects of divorce.

Legal effects of annulment

There is a difference between annulment and non-existent marriage.

In the case of non-existent marriage, as provided for by Articles 1628 to 1630 of the Civil Code (e.g. where there is complete absence of a declaration by one or both spouses), the non-existent marriage does not have any effects.

In the case of annulment of a civil marriage, as provided for by Article 1631 of the Civil Code (e.g. in the case of legal impediments or an incorrect declaration), the effects determined by Article 1647 of the Civil Code are as follows:

  • If both spouses acted in good faith, the marriage has effects between them and against third parties until the annulment judgment becomes final.
  • If only one spouse acted in good faith, then only that spouse can benefit from the effects of the marriage. In addition, the spouse acting in good faith can invoke the effects of the marriage against third parties, provided that they reflect the relationship between the spouses.

These rules apply to the annulment of Catholic marriages celebrated by ecclesiastical authorities until the judgment has been registered in the Civil Register, provided that the Catholic marriage was likewise registered.

Articles 1649 and 1650 of the Civil Code provide for special property penalties in the event of a marriage between minors or a marriage infringing legal impediments, such as the following:

  • A minor who marries without the necessary authorisation is regarded as a minor until the age of majority with regard to the administration of property that he or she owned at the time of the marriage and that he or she acquires after the marriage by gift. However, the maintenance needed according to his or her status will be taken from the income from this property.
  • The parents or legal representative of the minor, and not the other spouse, will administer this property until the minor reaches the age of majority.
  • This property cannot be used, either during the marriage or after its dissolution, to settle the debts of either spouse incurred before the minor reached the age of majority.
  • In the event of marriage before the end of the inter-nuptial period, the spouse infringing this impediment loses all the property received by gift or will from the first spouse in the previous marriage.
  • If the impediments laid down in Article 1604(c) and (d) of the Civil Code are infringed (e.g. there is an impediment resulting from a blood relationship), the spouse committing the infringement cannot receive any benefit by gift or will from the other spouse.

5 What are the effects of death of one of the spouses on the matrimonial property regime?

The matrimonial property regime ends with death, as set out in Article 1788 of the Civil Code.

Jointly owned property must be partitioned. The deceased’s property includes his or her personal property and, as applicable, his or her share of the jointly owned property of the spouses, in accordance with Article 2024 of the Civil Code.

As a general rule, the surviving spouse is the legal heir and benefits from a reserved portion in the succession, regardless of the existence of a will (Articles 2131 and 2133 or 2158 and 2159 of the Civil Code, as applicable).

In addition, under the conditions of Article 2103‑A of the Civil Code, when the property is partitioned, the surviving spouse has the right to be granted use of the family home, its contents and its furniture. Where this exceeds his or her portion in terms of both the succession and the jointly owned property, the surviving spouse must compensate the other heirs.

However, in accordance with Articles 1698 and 1700(3) of the Civil Code, where the matrimonial property regime is the separate property regime, the spouses can waive their status as heir in the prenuptial agreement.

6 Which authority has the competence to decide in a case relating to a matrimonial property regime?

As a rule, issues relating to matrimonial property regimes are raised in the partition proceedings following divorce, legal separation or annulment of the marriage.

In such cases, the authorities with competence to handle the partition of matrimonial property are as follows:

  • The Civil Registry Office (Conservatória do Registo Civil) in the case of divorce or legal separation, provided that the parties agree to the partition. Two situations can arise: in the case of divorce or legal separation by mutual consent, the Civil Register services are competent with regard to the divorce or legal separation and, within these proceedings, can approve the partition agreement, handle the payment of tax obligations and make changes to the Property Register as a result of the partition. In the case of contested divorce or legal separation, for which the Family and Minors Courts (Tribunais de Família e Menores) are competent, if the parties agree to the partition after the divorce or separation, then the Civil Register services are competent to handle the partition, tax obligations and changes to the Property Register as a result of this partition. This legal framework is set out in Articles 272‑A and 272‑B of the Civil Register Code (Código de Registo Civil).

Practical information on this service and its costs is available from Link opens in new windowhttps://justica.gov.pt/Servicos/Balcao-Divorcio-com-Partilha.

  • Notaries in cases of divorce and legal separation where the spouses do not agree on the partition and, as a rule, in all cases of annulment. In such cases, one of the parties must submit an inventory request to the notary. The notary handles the case using the case management system Link opens in new windowhttps://www.inventarios.pt/. During the inventory procedure, any decisions will be made by the Family and Minors Courts. This procedure is laid down in Law No 23/2013 on the inventory procedure. After the final decision becomes enforceable, the notary will issue a certificate allowing the parties to meet their tax obligations and register any changes to immovable property as a result of the partition (Article 20 of Law No 23/2013).
  • If, after the divorce or legal separation, the parties reach agreement on the partition of property, they can grant a public deed before a notary. In this case, the notary is responsible for registering the immovable property within two months and the parties must meet their tax obligations within the same time-limit (Articles 8‑B and 8‑C of the Property Register Code (Código do Registo Predial)).

7 What are the effects of the matrimonial property regime on legal relationships between a spouse and a third party?

Articles 1682 and 1683 of the Civil Code provide that, in some cases, a spouse must have the other spouse’s consent to enter into certain contracts with a third party. This depends on the matrimonial property regime (e.g. separate property or community of property regimes), the powers of administration resulting from that regime (e.g. joint administration of certain property), the nature of the property (e.g. family home; joint property) or the nature of the contract (e.g. contract of sale and purchase; acceptance of gifts).

Under Article 1687 of the Civil Code, lack of consent from the other spouse has the following consequences for third parties:

  • If one of the spouses enters into a contract that infringes the provisions of Article 1682(1) and (3) (e.g. transfer of ownership of certain movable property), Article 1682‑A (e.g. transfer of ownership of immovable property under community of property regimes; transfer of ownership of the family home under any matrimonial property regime), Article 1682‑B (e.g. cancellation of the lease for the family home) or Article 1683(2) (waiver of a succession or legacy) of the Civil Code, the other spouse or his or her heir can request the cancellation of that contract.
  • If a spouse transfers ownership of unregistered movable property or enters into a contract that creates a charge over that property, without the other spouse’s consent where necessary, the cancellation referred to above cannot be invoked against a third party who acted in good faith.
  • If one of the spouses unlawfully transfers ownership of a property belonging solely to the other spouse or enters into a contract that creates a charge over that property, the contract will be null and void and the price must be repaid under Articles 892 to 904 of the Civil Code in particular, which set out the consequences of the seller’s unlawful action.

8 A short description of the procedure for the division, including partition, distribution and liquidation, of matrimonial property in this Member State.

Where no agreement can be reached on the partition (in the case of divorce or legal separation) or where the marriage is annulled, the inventory procedure to be followed is set out in Law No 23/2013.

The inventory procedure involves the following stages:

Stage 1 - Application

  • The procedure starts with the submission of an application to the notary by any party interested in the partition. As a general rule, the application is submitted electronically via Link opens in new windowhttps://www.inventarios.pt/.
  • One of the spouses (the oldest) is appointed to submit the list of property, including debts and claims.
  • The interested parties are notified so that they can raise any objections.

Stage 2 - Preparatory meeting

  • A preparatory meeting is held during which the partition can be decided by agreement. In this case, the procedure can end at the preparatory meeting stage.
  • The case is then referred to the Family and Minors Court for approval by the judge.

Stage 3 - Meeting

  • If no agreement is reached at the preparatory meeting stage, the parties are summoned to a property valuation and auction meeting, if necessary.
  • The notary makes a decision on the partition and liquidation and draws up the partition deed.
  • Finally, the case is referred to the Family and Minors Court for the partition to be approved by the judge.

Article 79 of Law No 23/2013 contains special provisions, in particular on mediation, which are applicable in the event of partition resulting from divorce, legal separation or annulment.

9 What is the procedure and documents or information typically required for the purpose of registration of immovable property?

The applicant for registration of immovable property must submit a registration application to the Property Registry Office, enclosing documents proving the facts set out in the Property Register. The documents normally required are as follows: public deed; property certificate; evidence of payment of stamp duty and municipal property tax; mortgage cancellation document, where applicable. If these documents are already registered with the Property Registry Office, only their references need to be indicated.

In addition, if the application is submitted by a representative of the applicant, their power of attorney must be included with the application. However, under Article 39 of the Property Register Code, lawyers, notaries and solicitors do not need to include a power of attorney in order to apply for registration.

Applicants who have a digital certificate (citizens with a Portuguese citizen’s card, lawyers, notaries and solicitors duly registered with the respective professional associations) can submit an application to register immovable property and add the necessary documents via the internet. Applicants without a digital certificate can submit the application in person at the Property Registry Office or send it by post.

Information on the registration procedure and its costs is available at:

Link opens in new windowhttps://justica.gov.pt/Servicos/Pedir-registo-predial.

The current versions of the Civil Code and other legislation referred to above can be consulted, in Portuguese, via the following link:

Link opens in new windowhttp://www.pgdlisboa.pt/leis/lei_main.php.

Final Note:

The information contained in this factsheet is of a general nature and is not exhaustive. It is not binding on the contact point, the European Judicial Network in civil and commercial matters, the courts or any other persons. The current version of the applicable legislation should always be consulted. The information provided here is not a substitute for legal advice from a legal professional.

Last update: 05/02/2020

The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.
Member States in charge of the management of national content pages are in the process of updating some of the content on this website in the light of the withdrawal of the United Kingdom from the European Union. If the site contains content that does not yet reflect the withdrawal of the United Kingdom, it is unintentional and will be addressed.

Matrimonial property regimes - Slovenia

1 Is there a statutory matrimonial property regime in this Member State? What does it provide?

Yes.

Matrimonial property regimes are governed by the Family Code of the Republic of Slovenia (Družinski zakonik Republike Slovenije (DZ)):

The statutory matrimonial property regime applies to spouses unless they conclude a contract on a different form of matrimonial property regime. In the latter case, the contractual matrimonial property regime applies to them.

The statutory matrimonial property regime comprises community of property for the spouses’ joint property and separation of property for each spouse’s personal property.

2 How can spouses arrange their matrimonial property regime? What are the formal requirements in this case?

Spouses or future spouses may arrange their property regime through a contract. Contracts arranging a property regime are contracts by which the two spouses specify a different property regime from the statutory one.

In such contracts, they may also agree to specify different matrimonial property regimes for the duration of their marriage and for the eventuality of divorce. Contracts which spouses conclude on property rights and obligations must take the form of a notarial act. The contractual matrimonial property regime applies to the spouses as soon as the contract on that regime has been concluded, unless they agree otherwise. A pre-nuptial contract concluded by future spouses on the matrimonial property regime takes effect on the day of the marriage or on the day thereafter, as specified by the future spouses in the pre-nuptial contract. Contracts on matrimonial property regimes must be entered in the register of such contracts. If a contract on a matrimonial property regime is not entered in the register of such contracts, for the purposes of relationships with third parties it is assumed that the statutory matrimonial property regime applies to the property relationship between the spouses.

Spouses must inform each other of their property situation before they conclude a contract governing the matrimonial property regime. If they fail to do so, the contract may be challenged in court.

3 Are there restrictions on the freedom to arrange a matrimonial property regime?

No. However, spouses must inform each other of their property situation before they conclude a contract governing the matrimonial property regime. If they fail to do so, the contract may be challenged in court.

4 What are the legal effects of divorce, separation or annulment on the matrimonial property?

The joint property of the spouses is divided if their marriage is dissolved.

If the matrimonial property regime contract by which spouses opt out of the statutory matrimonial property regime fails to specify the manner in which the matrimonial property is to be divided, it is divided in accordance with the rules of the statutory matrimonial property regime, except where the spouses agree otherwise. The property is divided on the basis of the situation when the contract on the matrimonial property regime came into force.

In principle, matrimonial property is divided on the basis of equal shares, but the spouses may provide evidence that they have contributed to the matrimonial property in different proportions. Insignificant differences in the contributions of each spouse to the matrimonial property are not taken into account.

When the shares of matrimonial property have been agreed or established, spouses may agree on the arrangements for the division of the property. If spouses agree to become joint owners of assets in proportion to their respective shares of the matrimonial property, this is also considered to be division.

5 What are the effects of death of one of the spouses on the matrimonial property regime?

The death of one of the spouses has no effect on the matrimonial property regime.

The property of the deceased spouse is subject to succession proceedings.

6 Which authority has the competence to decide in a case relating to a matrimonial property regime?

The courts have competence to rule on disputes concerning matrimonial property regimes.

7 What are the effects of the matrimonial property regime on legal relationships between a spouse and a third party?

The joint liabilities of spouses are those which are binding on both spouses under general legislation, liabilities which have arisen in connection with the matrimonial property and liabilities incurred by one spouse to meet the needs of cohabiting with the other spouse or the needs of the family. Spouses are jointly and severally liable for these liabilities with their common property and with the personal property owned by each of them.

A spouse may claim reimbursement from the other spouse on the grounds that he/she has paid more than his/her share when settling a joint liability.

The personal liabilities of a spouse are those which he/she held before the marriage was concluded and those which he/she incurred after the marriage was concluded but which do not constitute joint liabilities under Article 82(1) DZ.

A spouse is liable for personal liabilities with his/her personal property and his/her share of the joint property.

If a contract on a matrimonial property regime is not entered in the register of such contracts, for the purposes of relationships with third parties it is assumed that the statutory matrimonial property regime applies to the property relationship between the spouses.

8 A short description of the procedure for the division, including partition, distribution and liquidation, of matrimonial property in this Member State.

The joint property of the spouses is divided if their marriage is dissolved. While the marriage lasts, the matrimonial property may be divided by agreement or at the request of one of the spouses.

Such agreements include any agreement between spouses on the extent of the matrimonial property. If the matrimonial property regime contract by which spouses opt out of the statutory matrimonial property regime fails to specify the manner in which the matrimonial property is to be divided, it is divided in accordance with the rules of the statutory matrimonial property regime, except where the spouses agree otherwise. The property is divided on the basis of the situation when the contract on the matrimonial property regime came into force.

Each spouse’s debts and claims in relation to that matrimonial property are established before his/her share in that property is determined.

The amount of each spouse’s share in the matrimonial property may be agreed between the spouses or is decided by a court in response to a request from either of the spouses.

In principle, matrimonial property is divided on the basis of equal shares, but the spouses may provide evidence that they have contributed to the matrimonial property in different proportions. Insignificant differences in the contributions of each spouse to the matrimonial property are not taken into account.

In a dispute concerning the amount of each spouse’s share in matrimonial property, the court will consider all the circumstances of the case, in particular the income of each spouse, the assistance which one spouse provides to the other, the custody of children, the performance of housework, care of the home and family, care to preserve property and any other form of work and cooperation in the management, preservation and enhancement of matrimonial property.

When the shares of matrimonial property have been agreed or established, spouses may agree on the arrangements for the division of the property. If the spouses agree to become joint owners of assets in proportion to their respective shares of the matrimonial property, this is also considered to be division.

If no agreement is reached on the arrangements for division of the property, a court will divide the property in accordance with the rules governing the division of matrimonial property.

When matrimonial property is divided, the items which are intended for the performance of a spouse’s profession or other activity or which enable him/her to earn a living are allocated to him/her out of his/her share, at his/her request.

The same applies to items which are intended exclusively for the personal use of one of the spouses and which are not his/her personal property.

9 What is the procedure and documents or information typically required for the purpose of registration of immovable property?

The land registry court (zemljiškoknjižno sodišče) decides whether to permit registration on the basis of documents which provide evidence of the legal basis for acquiring the right that is to be registered and which meet the other conditions laid down by law.

Those documents are set out in Article 40(1) of the Land Registry Act (Zakon o zemljiški knjigi (ZZK-1)).

Last update: 30/01/2020

The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.
Member States in charge of the management of national content pages are in the process of updating some of the content on this website in the light of the withdrawal of the United Kingdom from the European Union. If the site contains content that does not yet reflect the withdrawal of the United Kingdom, it is unintentional and will be addressed.

Matrimonial property regimes - Finland

1 Is there a statutory matrimonial property regime in this Member State? What does it provide?

The Finnish matrimonial property regime is based on the notion of deferred community of property. This means that during marriage, property is owned separately, but if the marriage is dissolved, property is divided equally between the spouses.

Entering into marriage does not change the ownership of property of the spouses. According to the Finnish Marriage Act (Avioliittolaki 234/1929), property that belongs to a spouse before getting married will remain the property of that spouse during the marriage. Any property they acquire or receive as an inheritance or gift during the marriage also remains their property. In addition to property, debts are also separate, meaning that each spouse will alone be liable for any debt they have incurred before or during the marriage. However, both spouses will be jointly liable for a debt incurred by a spouse for the maintenance of the family.

Under the Finnish matrimonial property regime, each spouse has a marital right to the property of the other spouse. This right entitles each of the spouses, or the widow(er) and the heirs of the deceased spouse, to half of the net property of the spouses when the matrimonial property is divided upon the dissolution of the marriage. The marital right covers all property regardless of when and how the spouses acquired or received the property before the marriage. However, spouses may opt not to apply the marital right in their marriage by making a matrimonial property agreement. In addition, any property received by a spouse under a deed of gift, a will or a beneficiary clause stipulating that the recipient’s future spouse shall have no marital right to the property in question is also excluded from the scope of the marital right.

2 How can spouses arrange their matrimonial property regime? What are the formal requirements in this case?

The spouses can, either before entering into the marriage or during the marriage, conclude a matrimonial property agreement. A matrimonial property agreement affects how the matrimonial property is divided. For example, the spouses can agree that a spouse has no marital right to any property belonging to the other spouse, but each spouse keeps their own property. The spouses can also agree that certain property is excluded from the division of the matrimonial property.

The matrimonial property agreement must be concluded in writing and be dated and signed. In addition, two disinterested persons must attest it. The matrimonial property agreement enters into force when it has been registered by the local register office [maistraatti] (or by the Digital and Population Data Services Agency [Digi- ja väestötietovirasto] from the start of 2020).

3 Are there restrictions on the freedom to arrange a matrimonial property regime?

The Marriage Act contains certain restrictions concerning the administration of assets such as the spouses’ common home or movable household property. A spouse may not, without the written consent of the other spouse, dispose of immovable property intended to be used as the common home of the spouses. Without the consent of the other spouse, a spouse may not dispose of a leasehold or other rights entitling possession of an apartment intended to be used as the common home of the spouses; movable property which forms part of the common household goods used by both spouses; any necessary tools used by the other spouse; or movable property which is meant for the personal use of the other spouse or the children.

The division of matrimonial property may be adjusted if the division would otherwise lead to an unreasonable result or to the other spouse receiving an unjust financial benefit. This means that in an individual case, on the basis of reasonable consideration, the rules otherwise applicable to the division of matrimonial property may be derogated from. When considering the adjustment of the division of matrimonial assets, special attention must be paid to the duration of the marriage, the activities of the spouses for their common household and for the accumulation and preservation of the property, as well as to other comparable facts regarding the finances of the spouses.

When adjusting the division of matrimonial property, it may be ordered that a spouse is not, under the marital right, to receive any property of the other spouse or that the said right shall be restricted; that certain property shall totally or partly be excluded from the marital right in the division of matrimonial property; or that all or part of property which has been excluded from the marital right of the other spouse by way of a marriage settlement, shall, in the division, be considered totally or partly property subject to the marital right of the other spouse.

4 What are the legal effects of divorce, separation or annulment on the matrimonial property?

When proceedings relating to divorce are pending or when the marriage has been dissolved, a division of matrimonial property must be carried out if a spouse or an heir of the deceased spouse so demands. In this division of matrimonial property, the marital right is realised by determining the amount the spouse whose net property is greater must hand over to the other spouse. If neither spouse has a marital right to the property of the other spouse, the property of the spouses must be separated rather than divided. If the spouses have joint property, the said property must be divided upon request when the matrimonial property is being divided or the property of the spouses separated.

Furthermore, a division of matrimonial property may also be carried out if a foreign judgment on separation has been issued for spouses whose matrimonial property matters are governed by Finnish law. However, the division cannot be carried out if the spouses resume cohabiting after the judgment on separation.

5 What are the effects of death of one of the spouses on the matrimonial property regime?

In principle, the same rules are followed when the marriage is dissolved because of death of one of the spouses.

If the deceased spouse has left direct heirs (children or their descendants), the widow(er) and the heirs of the deceased can request a division of matrimonial property. In this division of matrimonial property, the main rule is to divide all property equally. Half of the property goes to the surviving spouse and the other half is shared between the heirs. However, if the widow(er) has more property than the deceased spouse, they have the right to keep all of their property.

If a marriage is dissolved due to the death of a spouse but the deceased spouse left no direct heirs, the widow(er) inherits all the assets of the deceased spouse, unless the deceased spouse has ordered otherwise in a will. In such a case, the matrimonial property is not divided between the property of the first deceased spouse and the surviving spouse. The general rule is that it is only after the death of both spouses that the property left by the last remaining spouse must be divided equally between the heirs of both spouses. The widow(er) may not bequeath what would thus pass to the heirs of the first deceased spouse.

Unless the direct heirs demand the division of the estate or it is required under the terms of a will left by the deceased spouse, the surviving spouse may retain possession of the undivided estate of the deceased spouse. However, the surviving spouse has the right to retain the possession of the common home of the spouses and any common movable household property undivided, provided that the widow(er) does not own another residence suitable as a home.

6 Which authority has the competence to decide in a case relating to a matrimonial property regime?

In Finland, the authorities do not initiate any procedures concerning matrimonial property on their own initiative. If the spouses fail to reach an agreement on the division, the District Court (käräjäoikeus) appoints, on application, an executor to carry out the division of matrimonial property.

7 What are the effects of the matrimonial property regime on legal relationships between a spouse and a third party?

As a rule, marriage does not restrict the right of a spouse to conclude agreements, but during marriage each spouse has the right to make decisions concerning their own property without the consent of the other spouse.

In addition, a spouse is not directly liable under law for a debt incurred by the other spouse. However, the spouses are jointly liable for a debt taken by one of the spouses alone for the maintenance of the family, as well as for the payment of the rent for a common apartment of the spouses. The spouses can only terminate a leasehold for their joint apartment together, even when the leasehold was signed by one of the spouses alone.

The rights of creditors are protected in the Marriage Act so that a spouse cannot waive their rights in the division of matrimonial property in a manner binding on the creditors. If, in the division of matrimonial property, a spouse has handed over property to the other spouse or the heirs of the other spouse to a value considerably exceeding what they should have handed over, the division may be reclaimed and paid into a bankruptcy estate.

8 A short description of the procedure for the division, including partition, distribution and liquidation, of matrimonial property in this Member State.

In Finland, the authorities do not initiate any procedures concerning matrimonial property on their own initiative. When proceedings relating to divorce are pending or when the marriage has been dissolved, a division of matrimonial property must be carried out if a spouse or an heir of the deceased spouse so demands. If neither spouse has a marital right to the property of the other spouse, a separation of the property of the spouses must be carried out instead of the division.

In a division of matrimonial property due to divorce, the main rule is to divide all property equally, unless the spouses have concluded a matrimonial property agreement. The division of matrimonial property may also be adjusted if it would otherwise lead to an unreasonable result. The joint property of the spouses must also be divided upon request , in the case of division or separation of property.

When a marriage is dissolved due to the death of a spouse and the deceased spouse has left direct heirs (children or their descendants), the widow(er) and the heirs of the deceased can request a division of matrimonial property. In this division, the main rule is to divide all property equally. Half of the property goes to the surviving spouse and the other half is shared between the heirs. If, on the other hand, the surviving spouse has more property than the deceased spouse, the surviving spouse always has the right to keep all of their own property. If a marriage is dissolved due to the death of a spouse but the deceased spouse left no direct heirs, the surviving spouse inherits all the assets of the deceased spouse, unless the deceased spouse has stipulated otherwise in a will. The general rule is that it is only after the death of both spouses that the property left by the last remaining spouse must be divided equally between the heirs of both spouses.

The parties may carry out the division themselves in accordance with a mutual agreement (division by agreement). If the parties fail to reach an agreement, the division is carried out by a court-appointed executor upon application by one of the spouses (court-appointed division).

When the division is carried out by agreement, the division must be recorded in a document, which must be dated and signed. In addition, two disinterested persons must attest it. If an executor carries out the division, the division must be drafted in the form of a document, signed by the executor.

The document may be lodged with the local register office (from the start of 2020, the Digital and Population Data Services Agency) for registration. Registration of the division document protects each spouse against recovery claims from the creditors of the other spouse; it does not otherwise affect the validity of the division of assets between the parties.

9 What is the procedure and documents or information typically required for the purpose of registration of immovable property?

Ownership of a property can be registered by applying for registration of title. The registration of title is entered into the public title and mortgage register. Once title to a property has been registered, the new owner is shown on the certificate of title.

If ownership of a property changes because of its division or separation, the original of the agreement to divide or separate the property, an explanation of the reasons for the division of the property (e.g. a notification from the District Court indicating that proceedings relating to divorce have been brought before it), as well as any receipt of payment of transfer tax, must be sent to the National Land Survey of Finland [Maanmittauslaitos] for the purposes of applying for registration of title.

The period for registration of title of property divided because of the dissolution of matrimony starts when the division takes effect. The period for registration of title is six months.

Last update: 05/02/2020

The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.
Member States in charge of the management of national content pages are in the process of updating some of the content on this website in the light of the withdrawal of the United Kingdom from the European Union. If the site contains content that does not yet reflect the withdrawal of the United Kingdom, it is unintentional and will be addressed.

Matrimonial property regimes - Sweden

1 Is there a statutory matrimonial property regime in this Member State? What does it provide?

Yes, there is such a system. It lays down rules on the duty of maintenance that applies between the spouses during and after marriage. It also regulates the spouses’ rights and duties during and after marriage in respect of the different classes of assets and liabilities, the matrimonial home and its furnishings, and gifts between spouses.

2 How can spouses arrange their matrimonial property regime? What are the formal requirements in this case?

The spouses can have assets of two kinds: property susceptible to division (giftorättsgods) and private property (enskild egendom). Property susceptible to division is the more usual form; property is susceptible to division where nothing else has been determined. The fundamental rule is that such property has to be divided when a spouse dies or in the event of divorce. Private property is not subject to division of this kind. Property can be private as a result of any of the following:

a) A matrimonial property agreement (äktenskapsförord). The agreement must be in writing and must be registered with the Tax Agency (Skatteverket).

b) The terms of a gift.

c) The terms of a will.

d) The designation of a beneficiary in a life assurance policy, an accident insurance policy, a sickness insurance policy, or an individual pension savings scheme.

3 Are there restrictions on the freedom to arrange a matrimonial property regime?

Yes, there are restrictions. For example, there are rules protecting the spouses’ matrimonial home and its furnishings during the marriage. One spouse cannot sell, let or otherwise dispose of the home without the other spouse’s consent. These rules apply even to property that is private under the terms of a matrimonial property agreement. If the property has to be divided between the spouses, their matrimonial home and furnishings are allocated to the spouse who has greater need of them. This is so even if the property belongs in its entirety to the other spouse. If the value of the property thus allocated to one spouse exceeds that spouse’s share of the property to be divided, the spouse is nevertheless entitled to take ownership of it if he or she pays the difference to the other spouse. Another example is that a surviving spouse is entitled to a certain minimum sum of money from the property of the two spouses. This applies even if the deceased spouse’s property was private and the deceased spouse has left all of his or her own property to someone else.

4 What are the legal effects of divorce, separation or annulment on the matrimonial property?

Swedish law provides only for divorce. The legal effect of divorce is that the property susceptible to division has to be divided. One spouse may also be entitled to maintenance, at least for a tideover period.

5 What are the effects of death of one of the spouses on the matrimonial property regime?

The property is distributed between the deceased’s heirs and the surviving spouse. But the couple’s common children and grandchildren have to wait until both spouses have died before they can receive their inheritance.

6 Which authority has the competence to decide in a case relating to a matrimonial property regime?

The property can be distributed by the parties themselves. If they agree, the only formal requirement is that the distribution be made in writing and signed by both sides. If they do not agree, a court can appoint an executor (bodelningsförrättare). Decisions taken by the executor can be challenged by a party in the courts.

7 What are the effects of the matrimonial property regime on legal relationships between a spouse and a third party?

Each of the spouses is liable for his or her own debts. A creditor of one spouse cannot claim payment out of the other spouse’s property, whether the property is susceptible to division or is that spouse’s private property. There are also rules to protect a creditor against attempts by spouses to put assets out of a creditor’s reach. For example, a spouse cannot decide that his or her private property is to be included in a division of property if the intention is to evade a creditor.

8 A short description of the procedure for the division, including partition, distribution and liquidation, of matrimonial property in this Member State.

The general rule is that all the property susceptible to division is to be included in any division. There are several exceptions. From the property susceptible to division a spouse can take out as much as corresponds to his or her own debts. Each spouse can also take out clothes and other property that that spouse uses personally, and any personal gifts. Nor does the division cover pension entitlements to be met by employers or out of public funds, or in certain respects private pensions either. The value of what is left of the property susceptible to division is in principle to be distributed equally between the spouses. The distribution is to take account of who is the owner of the asset in question. As mentioned above, there are also special rules for the matrimonial home and its furnishings.

9 What is the procedure and documents or information typically required for the purpose of registration of immovable property?

Every transfer of immovable property must be registered by applying for registration of ownership with the National Land Survey (Lantmäteriet). Registration is usually sought by the buyer. The original documents must be submitted with the application.

Last update: 10/02/2020

The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.
Member States in charge of the management of national content pages are in the process of updating some of the content on this website in the light of the withdrawal of the United Kingdom from the European Union. If the site contains content that does not yet reflect the withdrawal of the United Kingdom, it is unintentional and will be addressed.