5 What are the consequences of divorce/separation?
5.1. How is the property (rights in rem) divided?
Both spouses are entitled to claim for division of property at the court after the termination of (and also during) the marriage. Division can also be requested by one spouse's creditor because of obligations that are not binding on the other spouse. In the initial phase of the division, the common property and the spouses’ shares thereof are determined. When dividing common property, the spouses’ shares cannot be determined for each particular asset; only each spouse’s share of the total assets is determined. The presumption of equal shares in the common property can be challenged. In such disputes, the court considers all circumstances of the case (especially the spouses' income, support that one spouse gives to the other, which spouse has custody of the children, the spouses’ care for the home and the family, the spouses’ expenses for the maintenance of the common property, and any other form of contribution to the administration, maintenance and increase of the common property (Art. 59 of the Marriage and Family Relations Act).
After the spouses’ respective shares have been determined, there is a second phase during which they can agree on how to divide their property. For the complete separation of property they can choose between a physical and a civil division, or a combination of the two. If they cannot reach an agreement on this matter, the court in a non-contentious civil procedure must first carry out a physical division, prioritising this over a civil division, in which the property is sold and the proceeds are divided. In the case of a physical division, each spouse receives, within the limits of his/her share, the assets in which he/she proves to have a stronger legitimate interest. A spouse receives the assets which serve his/her profession or other activities and which enable him/her to earn an income or exclusively serve his/her personal use and are not his/her separate property (Art. 61 para. 2 of the Marriage and Family Relations Act).
5.2. Who is liable for existing debts after the divorce/separation?
The spouses remain jointly and severally liable for their common debts after the divorce until the division of the common property, at which point debts should also be divided. If they are not, the spouses remain jointly and severally liable.
5.3. Does one spouse have a claim to an equalisation payment?
If the value of a spouse’s separate property which has been used to satisfy common debts exceeds his/her share of these debts, he/she can file a reimbursement claim against the other spouse (Art. 56 of the Marriage and Family Relations Act).
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