In a new guest post, Belgrade-based family lawyer Marija Jovanovic explains marital property law in Serbia. We’d be happy to consider the publication of legal articles by family lawyers in other countries too: drop us a line to discuss.
At the beginning of marriage, people usually do not think much about such things as property ownership. Usually emotions and romance rule in those early stages. But as time passes, most people do eventually turn their minds to more practical matters. Let’s take a look at how property ownership works in Serbian law.
What is marriage? Marriage is the legally declared union of a man and a woman. Serbian law still does not permit marriage between persons of the same sex. According to the Family Law Act, spouses must live together and mutually respect and help each other. Also, they are free to decide independently from each other on their profession and work. Naturally, during most marriages, spouses are working and making money and so they acquire property. The Family Law Act of the Republic of Serbia stipulates two regimes for marital property: legal and contractual.
The legal regime includes both separate and joint property, while the contractual regime requires spouses to regulate their property ownership via, as the name suggests, a nuptial contract. The legal regime is the most commonly used.
Assets that a spouse acquires before concluding a marriage is his/her separate property – as is any property that a spouse acquires during a marriage by the division of joint assets or by inheritance, gift, or similar legal mechanisms.
How is separate property defined? It is:
*Any assets that the spouse had before marriage.
*Any property that was acquired during the marriage by inheritance or gift.
*Income from separate property that have not been incurred as a result of the work of the spouses (e.g.. rental income, interest, dividends on separate property).
*Funds raised from compensation for non-pecuniary damage – for example, physical injuries.
*Any property obligations incurred before a marriage.
*Property for personal use.
*Movable property (eg. household appliances) purchased before marriage, and credit obligations.
*Any property acquired as a result of the division of joint marital property.
Each spouse independently manages and disposes of his/ her separate property.
Property that the spouses have acquired through work during their marriage is their joint property. There are two essential elements to the concept of joint property: work and living together during marriage.
The work can be joint or separate and it is defined as every activity that not only contributes to the acquisition of new property, but also the preservation or maintenance of existing property. And then there’s the requirement to live together, a central aim of marriage. If, after the wedding itself, the newly married couple do not begin to live together, the marriage can be annulled under Serbian law. The marriage will have no legal effect the courts will declare it null and void.
Joint property can be acquired in several ways:
*Via work during the marriage (i.e. salary, royalties, additional work).
*Income from joint property.
*Property acquired in games of chance (gambling, lotteries, etc), unless the spouse who won can prove that he or she invested his/ her own property or money in the game.
*Property or financial gain acquired via intellectual property rights.
Spouses manage and dispose of their joint property jointly and consensually. Under the Serbian Family Law Act, it is assumed that whatever one spouse does with joint property or assets has the consent of the other spouse. However, a spouse may not dispose of his/ her share in joint property nor may he/she burden it with legal obligations.
Joint property ends with division – that is to say, the determination of each spouse’s share. This can take place both during and after a marriage, and can be done in two ways: by agreement and in court.
The spouses agree on the division of joint property. But if they cannot reach then the division will have to take place in a courtroom. It is assumed that both parties have an equal share in joint property. Any larger share depends on a number of factors: income, household activity, care of the children, care of the property, and other circumstances significant to the preservation of joint property or an increase in its value.
The right to division of joint marital property belongs to the spouses, heirs of a deceased spouse, and the creditors of a spouse if their claims cannot be settled from the spouse’s separate property.
Each spouse is liable for personal obligations undertaken before or after the conclusion of a marriage with his/her separate property or share in joint property.
Since marriages and cohabiting relationships are legally equal under the Family Law Act, that means the property that the cohabitees have acquired through work during their time together also counts as joint property. The provisions of the Family Law Act governing property ownership therefore apply equally to cohabitees.
The option for spouses and cohabitants to regulate their property ownership by nuptial contract was first introduced by the Family Law Act of the Republic of Serbia in 2005. Although almost 11 years have passed then, however, the legal approach to property ownership remains the most common.