What we will focus on in this article is the property aspect
of marriage, with special reference to the issue of the status of personal
property that belonged to a spouse prior to the marriage, ie. what happens with
the personal property that the future spouses bring into the marriage, but also
on the issue of division of property in case of divorce.
One of the most important, and nowadays the most sensitive
aspects of the marriage, is the thing of property relations. The property of
the spouses can be separate and shared, but the spouses can arrange their
property relations in a special way, ie. Prenuptial agreement.
Personal property that belonged to a spouse prior to the
marriage, in the sense of the Serbian Family Law, is all property acquired by
the spouse before the conclusion of the marriage. Practically, this means that
your personal property consists of all movable (car, valuable jewelry, money in
bank accounts, etc. i) and real estate (apartments, houses, cottages…) that you
acquired before marriage, and when “you enter” Thus acquired property, it
has the status of personal property. The status of personal property also has
the property acquired by the spouse during the marriage in the event that he
inherited the property gift or other legal transaction that acquires only
rights is his special property .
Unlike personal property that belonged to a spouse prior to
the marriage, joint property is all property acquired by spouses during the
marriage. One of the most important issues concerning the different legal
treatment of spouses’ separate and joint property is: management and disposal
of property. Namely, the spouse disposes of and manages his / her special
property independently, which means that the consent of the other spouse is not
required. As for the disposal and management of joint property, the spouses
dispose of and manage it jointly, so the legal presumption is that the spouse
always undertakes regular management activities with the consent of the other
spouse.
Joint property can be divided during the marriage and after
the dissolution of the marriage. The division of property can be done by
agreement. In essence, according to the Serbian Family Law, any determination
of the spouses’ co-ownership share in the joint property is considered a
division of property. This is an example, which means that if spouses make
purchase of real estate property during the marriage, the spouses are
registered in the public register (cadastre) as co-owners in the share ½, it is
considered that in accordance with the Serbian Family Law, the property is
divided. Judicial division of joint property will be carried out only if the
spouses cannot divide the property by agreement. During the judicial division
of property, the assumption is that the shares are equal, which means that each
spouse has one half of the joint marital property. The burden of proving the
fact that the share in the property is higher than the legally assumed half is
on the spouse who claims it.
The division of things for the personal use of the spouse is
not included in his share and belongs to him, if the value of these things is
not disproportionately large in relation to the value of the joint property. If
that is the case, they will again belong to the spouse in exclusive ownership,
with the difference that their value will be included in his share. A special
review should be made in terms of things intended for the child, and such
things will belong to the exclusive ownership of the parent, ie. to a spouse
who exercises independent parental rights, without including his share. As we
mentioned earlier, the division of property can be done during the marriage and
after the termination. In practice, of course, it is much more common for
spouses to share joint property during divorce. A marriage can be dissolved by
a divorce judgment based on a divorce agreement or a judgment in a marital
dispute. In both cases, the decision on the division of joint property is
included in the operative part of the judgment.
If you need professional help in the field of family law,
feel free to contact us.
