5 What are the consequences of divorce/separation?
Termination of the marriage results in the dissolution of the matrimonial property regime (Art. 27 FC) and the division of the community property.
5.1. How is the property (rights in rem) divided?
The spouses' shares in the community property are equal (Art. 28 FC).
However, the court may determine that a greater share of the community property shall go to the spouse who has been granted custody of underage children if this causes special difficulties for him/her. Apart from his/her share, this spouse receives the movables intended for the upbringing and the education of the children (Art. 29 para. 1 and 2 FC). In case of divorce, a larger portion can be determined by the court also if the contribution of one of the spouses to the acquisition of the property is considerably larger than the contribution of the other spouse (Art. 29 para. 3 FC).
Upon divorce each spouse is entitled to a part of the value of the assets for exercising profession or trade and of the receivables of the other spouse that have been acquired during the marriage if they are of significant value and if he/she has contributed to their acquisition either by his/her labour, funds, care for the children or work in the household. The claim might be also brought prior to divorce provided that the conduct of the spouse who has acquired the property threatens the interests of the other spouse or of the children (Art. 30 FC).
Article 31 of the FC states that the claims under Article 29 paragraph 3 and Article 30 might be brought within one year as of termination of the marriage; the claim under Article 29 paragraph 1 and 2 might be brought within one year as of the enforcement of the court decision on the custody of the children.
Regime of separation of property:
The assets acquired by the spouses during marriage are their personal property (Art. 33 para. 1 FC).
Upon termination of marriage each spouse may claim a part of the value of the property acquired by the other spouse during the marriage, to the extent the first has contributed to it with his/her work, funds, care for the children, work in the household or otherwise (Art. 33 para. 2 FC).
By way of marriage contract, the spouses can agree upon the division of their property in case of divorce (Art. 38 FC).
5.2. Who is liable for existing debts after the divorce/separation?
Article 38 of the FC states that the spouses may regulate in the marriage contract their liability for the expenses and obligations incurred during the marriage. In case the spouses have not concluded a marriage contract to arrange their liability, the provision of Article 36 paragraph 2 shall apply: the spouses bear joint liability for obligations incurred for current needs of the family. Upon termination of the marriage by divorce the spouses remain jointly liable for existing obligations incurred during their marriage as ordinary joint debtors as they are no longer jointly liable as spouses.
5.3. Does one spouse have a claim to an equalisation payment?
The Family Code regulates cases in which a spouse is entitled to receive a larger portion of the community property (see under 5.1.).
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