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Property acquired during marriage

Clients often come to the office with questions related to the property acquired during the marriage. Our law firm has extensive case law in this area.The obligatory practice of the Supreme Court of Cassation asks the following question: “Is it permissible to establish the transformation of personal property on the basis of Art. Art. 23, para. 1 and 2 of the Civil Code / Art. 21, para. 1 and 2 SC, revoked / in the case of acquisition of real estate during the marriage through a contract of sale? ". During the marriage under the legal regime of community under the Family Code, the spouses may acquire property and rights over property as personal - Art. 22 SC and in matrimonial property community - art. 21 SC. SC is a new and special law regarding the Insurance Act and the Labor Code.The claim under Art. 23 of the Civil Code is a corrective of the marital community, as a regime of property relations under the Civil Code and the joint contribution, as its basis and explanation. Marital property community arises on the property and property rights acquired by the spouses during the marriage as a result of a joint contribution, regardless of in whose name they are acquired - Art. 21, para. 1 SC.And again, regardless of in whose name the thing / property / was acquired, a transformation of personal property for each of the spouses can be established. The facts about the actually agreed amount of the price and the origin of the funds with which it was paid shall be subject to proof by all means of evidence, including testimony.In this direction is the established practice of the Supreme Court of Cassation, objectified in decision №86 / 2018 on gr.d.№ 2862/2017, of the 2nd city ward, decision 8 of 2019 on gr.d.№ 1314/2018 VKS, 2nd city department.The regime of marital property community is most often applicable in practice in property relations between spouses, because according to Art. 18, para 2 SC shall be applied, if no other regime has been chosen.In considering the property disputes between the spouses, one should proceed from the principles of family relations proclaimed by the Family Code / art. 2 / and from the social functions of marriage and the family / art. 17. In this sense are the instructions in item 1 of PPVS № 5/1972.To assume that any item paid for by a spouse's bank account is his personal property, regardless of the origin of the funds in the account, means ignoring the presumption of joint contribution and emptying the contents of the matrimonial property community.There would be very few possible hypotheses in which to acquire a real right during the marriage through sale and purchase and it has the status of a matrimonial property community, because under the Law on Restriction of Cash Payments the acquisition of real rights is usually paid Bank transfer. Therefore, the application of the transformation to the acquisitions with amounts of deposits / savings / of the spouses, accumulated during the marriage, is legally and vitally unacceptable.The property rights acquired with funds from a cash deposit / bank account / of one spouse, acquired during the marriage, do not represent personal property. The transformation of personal property under Art. 23 SC is applicable to the personal property referred to in Art. 22 SC - acquired before marriage, by donation, inheritance and other hypotheses specified in the norm. There is no transformation of personal property when real rights are acquired with a cash deposit of one spouse, formed during the marriage.In this case the presumption of art. 21, para 3 SC for joint contribution is applied. RESOLUTION №126 / 2019, gr. d. № 352/2019 VKS, 2nd gr.o.The criterion for conversion of personal property into the property purchased during the marriage is completely objective - the nature of the funds invested in the acquisition is examined.The spouse who owned the transformed personal property may at any time during the marriage and after its termination file a positive declaratory action for recognition of the personal nature of the acquired property, thereby limiting it and excluding it from the marital property community. This is a legal opportunity given to each spouse. Therefore, if their intention was to acquire a common one, the husband's will is not to reveal his personal contribution to the acquisition.The exchange of documentary statements / power of attorney, return letter and other documents that prove the will to be acquired on a personal basis / is difficult to predict and realize during the marriage. The payment of the price in cash at the conclusion of the contract indicates that the spouses had the funds at the time of acquisition, and that the transformation is possible by proving the origin of the funds.Obligatory relations between the spouses arise when paying the price with borrowed funds, when the obligation to repay them is assumed jointly by both for the needs of the family - Art. 32, para. 2 SC / art. 25, para. 2 SC, revoked /. Only in this case the repayment of the loan with personal funds of one spouse does not change the real right arising in the matrimonial community.Respecting the claim for transformation of personal property in the property acquired during the marriage, it is established that the property is wholly or partly personal to the claiming spouse and is not owned in a matrimonial property community. Acquired during the marriage, regardless of whose name, is in the nature of the funds invested in the acquisition.If they are wholly or partly personal to one spouse, the other has no contribution to the acquisition - in whole or in part, although he participates in the acquisition. Marriage is not a means of unjust enrichment. The contribution to the acquisition is significant, not the person in whose name the property was acquired. The latter is important in the application of the general law - the Insurance Act and the CPA, but in the chosen legal regime of separation under the new SC, in force since 1.10.2009. In conclusion: To get professional advice on your case, contact a lawyer who will assess the specifics of the case. Arabadjiev Law Firm has extensive practice in this direction. We will be able to adequately resolve the problems arising from the division of property in case of divorce / termination of the SIO.