1.1. Which law is applicable to a couple´s property? Which criteria/rules are used to determine the applicable law? Which international conventions have to be respected with regard to certain countries?

For marriages concluded until 28 January 2019, Croatian national rules apply. Matrimonial property regimes are subject to the law of the country of which both spouses are nationals. If they are nationals of different countries, the law of the country of their common habitual residence is applied. If spouses do not have the same nationality or do not have a common habitual residence, the law of the country of their last common residence is applicable. If the applicable law cannot be determined according to these rules, Croatian law is applied (Article 36 of the Private International Law Act).

The applicable law for the contractual matrimonial property regimes shall be the law that was applicable to the legal matrimonial property regime at the time when the spouses entered into the agreement.

The Republic of Croatia is not a signatory party to the 1978 Hague Convention on the Law Applicable to Matrimonial Property Regimes.

Bilateral conventions on international legal assistance that contain conflict-of-law rules on matrimonial property relations have been concluded with the Czech Republic, Hungary, Mongolia, Poland, Romania, the Russian Federation and the Slovak Republic (further information available at http://www.mprh.hr/bilateralna-suradnja-01).

Following the adoption of European Regulation (EU) 2016/1103 of 24 June 2016, new rules apply to determine the law applicable to all marriages concluded as from 29 January 2019 and to marriages concluded before the date of entry into force where the spouses have chosen a law applicable to their matrimonial regime as from 29 January 2019.

In the absence of choice of law, Article 26 sets out the hierarchy of connecting factors to determine the applicable law, as follows.

• The spouses’ first common habitual residence after the conclusion of the marriage.
• Failing that, the spouses’ common nationality at the time of conclusion of the marriage. This criterion cannot be used when the spouses have several common nationalities.
• Failing that, the law of the State with which the spouses jointly have the closest connection at the time of conclusion of the marriage.

By way of exception and provided that one of the spouses so requests, the competent judicial authority may decide that the law of a State other than that of the first common habitual residence after the conclusion of the marriage shall apply (Art. 22.3).

1.2. Do the spouses have the option of choosing the applicable law? If so, by which principles is this choice governed (e.g. the laws to be chosen, formal requirements, retro-activity)?

Until 28 January 2019, Croatian law itself did not provide for a choice of applicable law, so if both spouses were Croatian nationals such a choice was not admissible. However, if one spouse is a national of another country and if the law originally applicable to the spouses' property relations (the law applicable at the time the spouses entered into the agreement) allows such a choice, the spouses may choose the applicable law (Article 37 of the Private International Law Act), if the effect of its application would not be contrary to the public policy (Constitution) of the Republic of Croatia (Article 4 of the Private International Law Act).

Regulation (EU) 2016/1103 provides for the possibility to choose the law of one of the States of which at least one of the spouses is a national or the law of the habitual residence of either spouse at the time of the choice as the law applicable to their matrimonial property regime (Art. 22). This choice may only be validly made as from 29 January 2019 within the framework of a marriage contract or an agreement on the choice of applicable law and in compliance with the formal requirements laid down in Article 23. If Croatian law is deemed applicable, the formal requirements include a written form of the agreement with a notarial certification of the spouses’ signatures.

Finally, the choice of law applicable to the matrimonial property regime during the marriage will only have effect for the future, unless otherwise agreed by the spouses and without prejudice to the rights of third parties.

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?

Pursuant to Croatian law, spouses have separate property and community property (Article 35 of the Family Act). Community property implies all property that spouses earned from their work during marriage or the property accrued from such property (Article 36 of the Family Act).

The property that a spouse owns at the time of entering into the marriage remains his or her separate property. Separate property also includes property that a spouse acquired during marriage by inheritance or donation.

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

By law, spouses are equal co-owners of the community property unless they have entered an agreement that governs their property relations otherwise.

2.3. Should the spouses establish an inventory of assets? If so, when and how? Croatian law does not require the establishment of an inventory of assets. 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 pointed out under 2.1, the spouses can own separate property and community property. Administration of separate property is governed by the regime of administering individual property.

Administering community property is divided into matters of ordinary and matters of extraordinary administration. Declarations made by one of the spouses is sufficient for matters of ordinary administration (ordinary maintenance, exploitation and use of the object for its ordinary purpose) – consent of the other spouse is presumed.

For matters of extraordinary administration (change of purpose of the object, major maintenance, selling, establishment of mortgage, etc.) of real estates and movable property ownership of which has to be registered, it is necessary for the spouses to declare will jointly, or for one of the spouses to present written consent with a notarial certification of signature given by the other spouse.

If the spouse doesn't present a written consent, this will not affect rights and obligations of the third party acting in good faith (Art 37 Family Act).

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

Obligations and liabilities entered into prior to entering marriage, as well as those, entered into in separate capacity during marriage, that aren't in connection with ordinary needs of the family union aren't binding for the other spouse. (Art 43 Family Act).

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

Both spouses are liable for debts incurred by one of the spouses for the purpose of settlement of needs of the family union, as well as for those incurred jointly in connection with community property. They are liable solidary with both their separate and community property.(Art. 44 Family Act).

3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?

The spouses can conclude a matrimonial property agreement which governs their property relations with respect to their existing and future property (Article 40 of the Family Act).

Spouses can define their property relations autonomously and in their best interest by stipulating which of their assets shall form part of community property and which shall be the spouses’ separate property (Article 36 of the Family Act). For certain questions, for example on the administration or division of property, the provisions of the Ownership and Other Property Rights Act have to be taken into consideration.

The Family Act does not regulate matrimonial property agreements, thus allowing any agreement that is not contradictory to the compulsory regulations. There are limitations concerning the application of foreign law because it is not permitted to stipulate the application of foreign law to the property relations in a matrimonial property agreement (Article 42 of the Family Act) if both spouses are Croatian nationals. If one spouse is a national of another country, however, the Private International Law Act is applied (see under 1.2.).

3.2. What are the formal requirements and who should I contact?

A matrimonial property agreement has to be concluded in written form and the signatures of the spouses have to be legalised by a civil law notary (Article 40 of the Family Act).

3.3. When may the contract be concluded and when does it come into effect?

A matrimonial property agreement can be entered into before or during marriage.

3.4. May an existing contract be modified by the spouses? If so, under what conditions?

Spouses can modify the existing matrimonial property agreement or conclude a new one at any given time if all the above-stated preconditions have been met.

Under Croatian law, there is no obligation to register a matrimonial property agreement.

5.1. How is the property (rights in rem) divided?

Both spouses are entitled to make a claim to the court for division of property after the termination of (in case of divorce) and during the marriage. Spouses may also agree on the division of community property. In case of disagreement on the division, the court rules according to the civil procedure regulations. Unless the spouses have agreed otherwise, their community property is divided equally. Division of immovable property that forms part of community property can be made in equivalents (if there are several items of real estate), geometrically by dividing a plot, by a civil termination (sale of the property and division of returns), payment or by granting a right of residence. Movable assets that form part of community property can be divided in equivalents (if there are several assets), by a civil termination, payment or physically.

5.2. Who is liable for existing debts after the divorce/separation?

The liability of spouses for existing debts after divorce follows the same rules as described under point 2.6.

If there is no matrimonial property agreement stipulating otherwise, after the death of one spouse the surviving spouse may demand a division of community property during the course of the inheritance procedure carried out before a civil law notary.

Upon the division of community property, a surviving spouse shall inherit a share of the deceased’s property (in cases other than inheritance by will) according to the first or second order of succession. In the first order of succession a surviving spouse shall inherit the same share as a deceased’s child (Article 9 of the Inheritance Act). If a deceased did not have children, his or her spouse and parents shall inherit the property in equal shares (one half goes to the spouse, the other to the parents). If a deceased does not have living parents either, a surviving spouse shall inherit the entire property (Article 11 of the Inheritance Act).

No

According to the Family Act, an extramarital union is a union between an unmarried woman and an unmarried man that lasts at least three years or less under the condition that a child has been born during the period of cohabitation (Article 11 of the Family Act).

Croatian law does not provide for the registration of an extramarital union. The court shall decide if all preconditions have been met for an extramarital union in each individual case.

The same provisions of the Family Act as for spouses apply to an extramarital union between a man and a woman meeting the preconditions set in Article 3 of the Family Act).

In the Republic of Croatia, same-sexs unions are governed by the Life partnership Act. According to the Life Partnership Act, a life partnership is a family union of two persons of the same seks, registered with the competent authority (Art 2 Life partnership Act).Same seks family unions can also exist as informal life partnerships, that weren't registered if following conditions are met: the union exist over a period exceeding three years and other conditions necessary for the validity of the union were met from the beginning of the union (Art. 3 Life partnership Act).Property relations between parties of life partnership and informal life partnership are governed by a regime analogue to that of community property and separate property (see 2.1).

For all legal actions brought, judgments given and acts issued until 28 January 2019, in accordance with the general rules of jurisdiction, Croatian courts have international jurisdiction in cases where the defendant has his or her habitual residence in the Republic of Croatia (Article 46 paragraph 1 of the Private International Law Act).

Croatian courts also have international jurisdiction for disputes over matrimonial property if a defendant does not have his or her habitual residence in the Republic of Croatia but a plaintiff has his or her habitual or temporary residence in Croatia at the time of undertaking legal action (Article 59 paragraph 1 of the Private International Law Act).

If the majority of the matrimonial property is located in the Republic of Croatia, and the rest is located abroad, the court can decide on the property that is located abroad only if it decides on the property located in the Republic of Croatia and only if the defendant agrees to this (Article 59 paragraph 2 of the Private International Law Act).

However, Croatian Courts have exclusive jurisdiction for disputes over the right to dispose of immovable property located on the territory of the Republic of Croatia (Article 56 of the Private International Law Act).

Spouses may agree on the jurisdiction of a foreign court only if one of them is a foreign national and if it is not a case of exclusive competence of Croatian courts.

Spouses may agree on the jurisdiction of Croatian courts if at least one of them is a Croatian national (Article 49 paragraph 2 of the Private International Law Act).

For all legal actions brought, judgments given and acts issued on or after 29 January 2019, regardless of the date of marriage, Council Regulation (EU) No 2016/1103 of 24 June 2016 will apply.

This Regulation provides that the competent authorities will be as follows:

• For matters relating to the matrimonial regime in the event of the death of one of the spouses, jurisdiction lies with the court competent for the succession (Art. 4).
• In matters relating to the matrimonial property regime in the event of an application for divorce, legal separation or marriage annulment, jurisdiction generally falls to the court competent to rule on the matrimonial dispute.
• In other cases, the spouses may agree that jurisdiction shall lie with the Member State whose law is applicable or with the Member State where the marriage is concluded. Such an agreement must be in writing, dated and signed by the parties. In the absence of an agreement, the courts of the Member State shall, as a general rule, have jurisdiction to settle any question relating to their matrimonial property regime other than in the event of the death of one of the spouses or a matrimonial dispute:
  • of the spouses’ common habitual residence at the time the court is seised; or failing that
  • of the spouses’ last habitual residence, insofar as one of them still resides there; or failing that
  • of the habitual residence of the respondent; or failing that
  • of the spouses’ common nationality.

With the exception of any litigation, notaries – unless they have been appointed by their Member State as a court within the meaning of Article 3.2 – are not bound by these rules of jurisdiction and may therefore act freely, for example in drafting a marriage contract or a choice of law agreement. Croatian legislation does not provide for a notarial competence that would fall within the scope of exercising judicial functions or acting by delegation of power by a judicial authority in family law related matters (divorce, separation, division of assets and similar). The notarial function in this field consists of possible drafting of agreements and authentication (a certification of the spouses’ signatures on the agreement would also meet the validity requirements set out by the Croatian Family Act).