2 Is there a statutory matrimonial property regime and if so, what does it provide?

2.1. Please describe the general principles: Which goods are part of community property? Which goods are part of the separate estates of the spouses?

If the spouses fail to conclude a marriage contract, the matrimonial property regime applicable to them is the statutory community of property regime. According to this regime, all the assets acquired during the community of property regime by either of the spouses are part of their common property as provided by Article 339 of the Civil Code. The personal property of each spouse, as provided by Article 340 of the Civil Code, comprises the following assets: assets acquired by legal inheritance, legacy or donation, unless the testator or donor expressly provided that the assets shall be part of the common property; assets for the personal use of a spouse; assets for the exercise of a spouse’s profession; intellectual property rights over a spouse’s works; assets acquired as a prize or as a reward, scientific or literary manuscripts, drawings and artistic projects, invention projects; insurance benefits and compensation for any material or moral prejudice caused to either spouse; the assets, the amount of money or anything of value replacing personal assets, as well as the assets acquired in exchange for such assets, as well as the fruits of personal assets.

2.2. Are there legal assumptions concerning the attribution of property?

If no inventory (see under 2.3.) has been established, the movable assets are presumed to be part of the common property until evidence to the contrary is produced. In accordance with Article 357 paragraph 2 of the Civil Code, the spouses are presumed to have had an equal contribution in the acquisition of common property and the fulfilment of common obligations, until evidence to the contrary is produced.

2.3. Should the spouses establish an inventory of assets? If so, when and how?

In accordance with Article 343 paragraph 3 of the Civil Code, within the statutory community of property regime, spouses should make an inventory of the movable assets acquired before marriage, either with a civil law notary or under private signature, and this inventory should be drafted before the conclusion of the marriage. Also if the spouses choose the separation of property regime (see under 3.1.), an inventory of the movable assets covered by the agreement has to be established by a civil law notary.

2.4. Who is in charge of the administration of the property? Who is entitled to dispose of the property? May one spouse dispose of/administer the property alone or is the consent of the other spouse necessary (e.g. in cases of disposal of the spouses’ home)? What effect does the missing consent have on the validity of a legal transaction and on opposability towards a third party?

As regards common property, each spouse is entitled to use and administer common property and to acquire common property by him/herself, without the other spouse’s consent (Art. 345 of the Civil Code). Legal transactions concerning the alienation and encumbrance of common property may be concluded only with both spouses’ consent. However, for the common movable property whose alienation is not subject to any publicity-related formalities, either spouse may dispose of the property by him/herself (Art. 346 of the Civil Code). Otherwise, a legal transaction concluded without the other spouse’s express consent may be annulled.

The legal transactions regarding the family dwelling, which is the spouses’ common dwelling, or otherwise, the dwelling of the spouse where children live, are governed by a special regime. A spouse may not dispose of the rights over the family dwelling by him/herself or conclude acts affecting the use of such dwelling even if he/she were the exclusive owner of the dwelling. However, if the consent of the other spouse is withheld with no legitimate reason, the Court competent in matters of family and guardianship may authorise the conclusion of the act. The spouse who did not give his/her consent may request the annulment of the act if the dwelling had been registered with the land register as a family dwelling. The annulment can be requested even if the family dwelling nature has not been registered, but was known to the acquiring third party for other reasons. Otherwise only damages may be claimed from the other spouse (Art. 322 of the Civil Code).

2.5. Are any legal transactions made by one spouse also binding on the other?

The obligations assumed by either spouse to cover the usual expenses of the marriage and the expenses arising in connection with the maintenance, administration and acquisition of common property are the spouses’ common obligations, even if such obligations were contracted only by one of them, and spouses are liable for such debts with their common property (Art. 351 of the Civil Code).

2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?

Spouses are liable with their common property for the common debts incurred as provided by Article 351 of the Civil Code. However, if the common property is not sufficient to cover the common obligations, the spouses are jointly liable with their personal property, and the paying spouse has a right of recourse against the other spouse and a right of retention until he/she has been compensated (Art. 352 of the Civil Code).