Property Relations in an Agreement for Divorce by Mutual Consent

Under the Family Code of 2009, in every divorce proceeding, the settlement of the spouses’ property relations is optional, not mandatory. Under this legal framework, the spouses may choose not to include provisions regarding their property relations in the agreement. However, if such clauses are included, this part of the agreement constitutes a settlement agreement within the meaning of Article 365 of the Obligations and Contracts Act (OCA) and, depending on the expressed will of the spouses, may have a property-transferring effect from the moment the divorce judgment enters into force.

The agreement submitted by the spouses to the divorce court is contractual in nature. Concerning property relations, its purpose is to voluntarily regulate the financial consequences of the divorce and to prevent future disputes over ownership of assets acquired during the marriage.

Within the freedom of contract (Art. 9 OCA), the spouses have the right to regulate the legal consequences of the dissolution of their marriage with respect to assets and property rights acquired in the regime of community property. The law allows them to agree on proportions different from those provided by statute, to terminate co-ownership by dividing the property, or to maintain co-ownership under mutually agreed terms.

It is possible for one spouse to receive a larger share even if his or her contribution does not substantially exceed that of the other, and vice versa — to agree on equal shares even when there are grounds for a larger share under the Family Code. In such cases, insofar as mutual concessions are present, the agreement constitutes a settlement contract within the meaning of Article 365 OCA and produces a property-transferring effect from the moment the divorce judgment enters into force (Interpretative Decision No. 5/15.03.1978).

If the rights of the spouses are determined according to their actual legal situation, the agreement has a declaratory character.

This publication does not constitute legal advice or opinion regarding a specific case or person. For legal assistance on matters related to divorce and property division, a consultation with a lawyer specialized in civil and family law is recommended.