The legal basis for the disposal of assets is set out in the provisions of the Family Code (hereinafter referred to as the “DZ”), the Non-Contentious Civil Procedure Act (hereinafter referred to as the “ZNP-1”), the Code of Obligations (hereinafter referred to as the “OZ”), the Law of Property Code (hereinafter referred to as the “SPZ”) and the established case law.

Article 66 of the DZ stipulates that a legal marital property regime between spouses is a community property regime for the co-owned property of spouses and a separate property regime for the personal property of each spouse.

Article 67 of the DZ stipulates that co-owned property of spouses consists of all property rights acquired by work or against payment during the marriage or domestic community of the spouses. Co-owned property of spouses also consists of the property acquired on the basis and by means of the co-owned property or the property that arises from such property.

Article 68 of the DZ stipulates that co-owned property of spouses belongs jointly to both spouses. Shares belonging to each spouse are not specified in the co-owned property. A spouse may not dispose of their unspecified share of co-owned property by legal transactions inter vivos, and in particular, they may not expropriate or encumber it. Items that are part of co-owned property are jointly owned by the spouses.

Article 69 of the DZ stipulates that the co-owned property of spouses is managed and disposed of jointly and by agreement. If one of the spouses uses movable property of small value or if such spouse manages the co-owned property, it is deemed that they have the consent of the other spouse.

Article 71 of the DZ stipulates that co-owned property of spouses is divided if their marriage is terminated. During marriage, co-owned property may be divided by agreement or on the proposal of either of the spouses. The agreement referred to in the preceding paragraph also contains an agreement between the spouses on the amount of their co-owned property.

Article 72 of the SPZ stipulates that two or more persons can have common ownership (common owners) over an undivided thing when their shares are not determined in advance. Common owners have common use and disposal of the thing and are jointly and severally liable for obligations arising in connection with the common thing. If one of the common owners independently disposes of the thing, it shall be deemed that a third person is in bad faith only if the third person knew that the thing was commonly owned and that it was disposed of without the common owner’s consent.

If, for example, one of the spouses disposes of a real estate that has been purchased with their own assets saved on the basis of work before the conclusion of the marriage, said spouse may dispose of said real estate without obtaining the consent of the other spouse, since said real estate (according to law) is not a part of the co-owned property of spouses.

However, if said real estate was purchased during the marriage and has been disposed of without obtaining the consent of the other spouse, or if one of the spouses arbitrarily disposes of their co-owned property, the other spouse may challenge such a legal transaction, unless the third person acted in good faith during the conclusion of said legal transaction since they did not know that the thing was commonly owned and that it was disposed of without the common owner’s consent (Article 72 of the SPZ).

If the spouses fail to agree on the division of the co-owned property during the marital break up, one of them may file a proposal for the division of the co-owned property before the competent court.

If one of the spouses fails to agree with the scope of the co-owned property, the competent court refers the case to the court, where said spouse must prove that, for example, the real estate is a part of the co-owned property of spouses. In addition to the above, the spouse should make a benefit claim or an application for a declaration for the refund of the amount of money that would be obtained from the sale of the real estate. Termination of the right of ownership is namely not an obstacle to determining the extent of the co-owned property and shares in said co-owned property expressed in terms of money.

The case law stipulates that, in the event of an unauthorised disposal (expropriation of the co-owned thing, if said real estate represents co-owned property), the co-owned property does not cease but merely changes its form. Co-owned property thus includes a claim resulting from the deprivation of (damage to) common property due to the alleged unauthorised disposal of the other spouse. In such a case, the disadvantaged spouse may effectively secure their position by applying for the payment of a monetary amount corresponding to the amount of the deprivation of co-owned property allegedly caused by the unauthorised disposal of the other spouse.