Divorce and Division of Property Acquired During Marriage

Separation between spouses, commonly referred to as divorce, is a frequent occurrence today. It necessarily involves court proceedings in which certain personal matters must be resolved. The division of movable and immovable property acquired during the marriage must also be addressed in those proceedings or in separate subsequent proceedings. It is important to emphasise that a man and woman who have cohabited as a family are not treated as spouses, regardless of how long they have lived together or the number or value of the assets acquired during that time.

The principle laid down in the Family Code is that property acquired during marriage belongs to both spouses, regardless of which spouse acquired it or whose name appears in the title document or notarial deed. In other words, it forms part of the matrimonial community of property, which ends on divorce. The law provides that the spouses’ shares are equal. This means that, whether one spouse worked while the other looked after the household and raised and cared for the children, each has contributed and is entitled to an equal share of the property accumulated during marriage. The law also allows a spouse who has been granted the exercise of parental rights over minor children to ask the court for a larger share if bringing up the children creates particular difficulties for that spouse. A larger share of the common property may also be awarded on divorce where one spouse’s contribution to its acquisition significantly exceeds the other’s.

A principle of family law is that items of ordinary personal use for everyday needs and of insignificant value, property acquired before the civil marriage, and property acquired during marriage by inheritance or gift are personal property.

The legislature also treats items intended for exercising a profession or trade as personal property, as well as real rights acquired during marriage by a spouse acting as a sole trader for the purposes of that business. This often creates opportunities for abuse by a spouse who registers as a sole trader to disadvantage the other spouse, who would be unable to claim those assets. In practice, such assets fall outside the matrimonial community of property and cannot be divided on divorce.

Nevertheless, where a spouse considers that they made a greater contribution to the accumulation of family assets, the court may award them a share relating to the other spouse’s personal items used for a profession or trade, and receivables acquired during marriage, if those assets are of significant value and that spouse contributed to their acquisition through work, caring for the children or work in the household. The two conditions must be met for this provision to apply. Protecting the spouse’s interests requires sound knowledge of the legal framework and a proper selection of the evidence, allegations and objections to be presented. We therefore recommend consulting a lawyer with the appropriate knowledge and competence when divorcing.