Claim based on Article 23 of the Civil Code for recognition of complete transformation of personal property.
The regime of marital property community is most often applicable in practice in the property relations between the spouses, because according to Art. 18, para 2 SC shall be applied, if no other regime has been chosen.When considering the property disputes between the spouses, one should start from the principles of the family relations proclaimed by the Family Code / art. 2 / and from the social functions of the marriage and the family / art. 17. In this sense are the instructions in item 1 of PPVS № 5/1972.
There would be very few possible hypotheses under which to acquire a real right during the marriage through sale and purchase and to have 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 specified in Art. 22 SC - acquired before marriage, by donation, by inheritance and in the 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 E№126 / 2019, gr. d.№ 352/2019 y., Supreme Court of Cassation, 2nd City Division. Spousal 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. It is permissible and can be established a transformation of personal property for each of the spouses. The joint contribution of the spouses is presumed to be rebuttable in the case of remunerative acquisition grounds, such as the contract for purchase - sale of real estate - Art. 21, para. 3 SC. In the proceedings on a claim for property between spouses on the grounds of transformation of personal funds, it is admissible to establish with testimony the payment of a price different from the one indicated in the notary deed, as well as the origin of the funds invested in the acquisition. Under the matrimonial property regime, the property has the status of the funds invested in its acquisition.
The claim under Art. 21, para 1 of the Civil Code / revoked /, respectively Art. Taking into account the specifics of family relations / they have not only property but also personal nature /, in resolving a dispute, qualified on the above grounds, in respect of property acquired with a contract of sale, it is important .what the actual price of the acquisition and origin of the funds with which it is paid.
The allegation that a price different from the one indicated in the notary deed has been paid does not constitute a challenge to the notarized circumstances / the statements of the parties to the transaction have the character of a private document and therefore binding formal probative force only on authorship /.The facts about the actually agreed amount of the price and the origin of the funds, with which it has been paid, shall be subject to proof by all means of evidence, including testimony. In the cited sense is the established practice of the Supreme Court of Cassation, objectified in decision № 86 / 04.07.2018 on the case file № 2862/2017 of the second year, ruled by the order of art. 290 CPC, Decision № 8 from 15.02.2019 under civil case file 14 1314/2018 of the Supreme Court of Cassation, 2nd city division.
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