In this article, we will look at how the Family Code of the Republic of Slovenia regulates the division of joint property of spouses, with an emphasis on relevant and recent case law.
Claims relating to the joint property of partners (marital, extramarital, same sex) consist of a declaratory claim that certain property belongs to the joint property, and a declaratory claim of the amount of shares in the joint property, according to established case law. A non-litigious civil procedure is provided for the division of joint property of spouses. If there is no disagreement between the spouses about the division and the size of their shares, the non-litigious court decides on the division of joint property. If the spouses disagree on the number of shares in the joint property and disagree with the legal presumption of equality of shares, the non-litigious court terminates the proceedings and refers the spouse (whose right is less likely) to court. If civil proceedings are not initiated within a specific time frame, the non-litigious court resumes with its work and decides based on the evidence available. (e.g., a legal presumption of equality of shares in the joint property will follow). However, if civil proceedings are initiated, the non-civil proceedings will continue after civil proceedings are concluded. Case law (such as the High Court’s judgement in ref. no. I Cp 2380/2019 of 15.4.2020) requires that joint property division be made in civil proceedings only if justified by special circumstances (e.g., the consent of the counterparty, if an object of the joint property is intended for only one spouse by its purpose or nature, if one of the spouses disposed of the joint property, etc.), which must be established and asserted. A spouse may request division in civil proceedings if, in addition to determining the extent of the joint property and their share in the joint property, they request payment of the equivalent of their share in the joint property or the formation of co-ownership and the issuance of a land registry document.
If the spouses’ marriage is annulled, their joint property is divided. During a marriage, the joint property is divided in accordance with an agreement or at the suggestion of one of the spouses. The joint property division agreement also includes the spouses’ agreement on the scope of the joint property. If the contract on the regulation of property relations, by which the spouses change the legal regime of joint property, does not specify the manner of joint property division, it will be divided in accordance with the rules of the legal regime of joint property, unless the spouses agree otherwise. Joint property division is carried out in accordance with the circumstances that exist at the time the contract on the regulation of property relations takes effect (Article 71 of the Family Code).
Before determining each spouse’s share of the joint property, their debts and claims on the property are determined (Article 72 of the Family Code). Debts can arise because of a joint household (e.g., bill payment), a family or marital union (e.g., the cost of educating children), or joint property (e.g., paying loan instalments for the purchase of real estate). Any receivables associated with the joint property are also listed (e.g., the spouses lent money to the parents of one spouse).
The spouses may agree on the number of shares in the joint property, or the court may decide on this at the request of one of the spouses (Article 73 of the Family Code). The principle of autonomy of the spouses takes precedence over the court’s decision in determining the number of shares in the joint property. This means that if the spouses are unable to agree on the number of shares, the court will decide if one of the spouses requests it.
Joint property division considers the shares of the spouses in it to be equal. Spouses may prove that they contributed a different share to the joint property. A slight difference in the spouses’ contributions to the joint property is not considered. In a dispute over each spouse’s share of joint property, the court considers all the circumstances of the case, including each spouse’s income, the assistance provided by the spouse to the other spouse, childcare, housework, home and family care, property preservation, and any other form of work and cooperation in the management, preservation, and incentivization of the joint property (Article 74 of the Family Code). In civil proceedings, a spouse who proves a different contribution to the joint property must also prove the existence of circumstances that could lead to the determination of different shares in the joint property. One spouse’s waste of money due to intoxication, parties, gambling, and a substantially higher income are all factors that influence the different determination of shares in the joint property. Case law in this area is also clear and uniform. Thus, according to the Supreme Court judgment ref. no. II Ips 730/2006 of 19.2.2009, determining the shares on joint property entails not only calculation operations that account for earnings, work values, pensions, and so on (factors that can be counted and measured), but also immeasurable but nonetheless important factors (assistance of one spouse to another, performance of domestic work, care for the maintenance of the property, effort, and care in the upbringing of children). As a result, the contributions of spouses cannot be calculated mathematically using perfectly accurate criteria. The court must determine each spouse’s share in relation to their total contribution to the acquisition of the joint property, considering all forms of effort. According to the judgement of the High Court in Ljubljana ref. no. I Cp 17/2017 of 29.3.2017, it follows that in determining which property is considered joint property and what shares are in it, one must apply the principle of unity of joint property, consider all joint property in its entirety, as well as the period of property acquisition and the existence of a marital union, all while being considered comprehensively and exhaustively, and no single factor should be considered. The latter also includes the valuation of both spouses’ contributions to the acquisition of joint property as well as all property acquired during the marriage.
If the spouses agree on certain shares in the joint property, they can agree on the method of joint property division. Their agreement to become co-owners of things in proportion to their shares in the joint property is also considered a division. If no agreement is reached on the method of joint property division, the court distributes them according to the rules governing joint property division (Article 75 of the Family Code). As a result, the spouses can agree on a method of property division. They may convert the joint property to co-ownership, with shares that can be obligatory (e.g., each owning half of a property) or real (e.g., if they own two properties, each spouse owns one). We also have the so-called physical division, in which one spouse takes full possession of the joint property and pays the other, and the so-called civil division, in which the proceeds of the sale of the joint property are split equally between both spouses. If the spouses are unable to agree on a method of joint property division, the court will divide the property in accordance with the rules governing joint property division. According to case law, such as the judgment of the High Court in Ljubljana ref. no. II Cp 3486/2015 of 10.2.2016, the agreement on joint property division must be concluded in a notarial form for it to be valid. Furthermore, based on the High Court’s judgement in Maribor ref. no. I Cp 1128/2019 of 3.3.2020 physical division with payment of the difference in value is the primary method of division, taking precedence over civil division (sale of property) as a secondary method of division. Civil division is only possible if physical division is impossible or if the value of property is significantly reduced. The judgement of the High Court in Ljubljana ref. no. II Cp 488/2019 of 10.7.2017 also specifies that physical division is contemplated for co-ownership property that is divisible by nature, with each co-owner owning the portion in which they have a legitimate interest. A civil division is made when the object of co-ownership is indivisible, or the division is only possible with a significant reduction in its value. This provision applies mutatis mutandis to the division of joint property.
Those objects intended for the performance of a spouse’s profession or other function, or that allow him/her to generate income, are allocated to him/her upon the division of the spouses’ joint property, at the spouse’s proposal, at the expense of his/her share. Objects that are intended solely for the personal use of one of the spouses and are not considered their special property are viewed in the same way (Article 76 of the Family Code). Thus, the spouse may propose that certain objects intended for the performance of their profession (e.g., florist’s equipment) or other function (e.g., agricultural machinery) or that allow him/her to generate income (e.g., drawing paints) are allocated at the expense of their share. The spouse may also propose that items intended solely for personal use (e.g., items for personal use, clothing, medical devices, etc.) be allocated to them.