Under the mandatory rule in Article 32(2) of the Family Code, spouses are jointly and severally liable, within the meaning of Article 127 of the Obligations and Contracts Act, for obligations incurred by either or both of them to meet the family\u2019s needs. Family needs are the common needs of family members, arising from the requirements of solidarity, mutual support and the family\u2019s well-being.<\/p>\n
When a marriage ends by a court decree of divorce, the spouses\u2019 community of property also ends. As between the former spouses their finances are separate, and payment of a joint obligation by one of them after the marriage ends likewise comes from separate property. Accordingly, if one of the joint debtors pays the creditor after the divorce (or after the spouses have in fact separated), that spouse acquires a right of recourse against the other to restore the financial balance between them.<\/p>\n
This right of recourse can be exercised in court. For a paying joint debtor, including a former spouse, to succeed against the other joint debtor under Article 127(2) of the Obligations and Contracts Act, the claimant must have paid more than their own share, thereby benefiting the other debtor. In that case the other debtor owes their share of the amount actually paid to discharge the debt as it stood at the time of payment, rather than their share of the original debt at the time it arose (Supreme Court of Cassation Judgments No. 211 of 23 July 2012 in civil case No. 177\/2011 and No. 293 of 19 November 2013 in civil case No. 3267\/2013).<\/p>\n
If you have questions about family law, divorce, settling property matters, maintenance or contact with children, it is advisable to discuss your rights with a lawyer who practises family and inheritance law. An experienced lawyer can anticipate how a situation might be resolved successfully and identify an option you may have overlooked.
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