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?

According to the Private International Law Act, if the spouses have not made a choice of law, then the law applicable to the general legal consequences of marriage at the time the spouses entered into marriage shall be applied to their property relations. The general legal consequences are determined according to the law of the country of the spouses’ common place of residence. In the absence of a common place of residence, the law of the country of common citizenship is applied. If the spouses reside in different states and have different citizenships, the general legal consequences of the marriage shall be determined on the basis of the law of the state of their last common residence, if one of the spouses still resides in this state. If it is not possible to determine which law applies on the basis of the aforementioned grounds, the law of the country with which the spouses are otherwise most closely connected is to be applied.

Different rules derived from international agreements (agreements on legal aid) are applied in case the spouses or one of the souses is national of Latvia, Lithuania, Poland, Russia or Ukraine or if the spouses are residing in those States.

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)?

According to the Private International Law Act, the spouses may choose the law applicable to their property relations. They may choose either the law of the state of residence of one of the spouses or the law of the state of citizenship of one of the spouses at the time of the choice of law.

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?

When concluding the marriage, the spouses are obliged to choose their matrimonial property regime. They can choose between the community of property regime, the community of accrued gains regime or the separation of property regime.

If the spouses have not chosen the matrimonial property regime when entering into marriage or by concluding a marital property contract, it is presumed that the statutory regime of community of property is applicable. According to this regime, the property acquired during the marriage is considered the joint property of the spouses.

Under the community of property regime, the following is considered separate property:

• personal belongings (e.g. clothing);
• property owned by either spouse prior to marriage;
• property acquired during the marriage by disposal without charge, including as a gift or by succession;
• assets acquired on the basis of a right belonging to separate property or in exchange for separate property.

Division of joint property is possible only after the community of property regime has ended (either by death of one of the spouses, by divorce or by concluding a marriage contract establishing a different property regime).

Under the community of accrued gains regime and the separation of property regime there is no joint property of the spouses.

(Estonian Family Law Act)

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

Under the community of property regime , property shall be deemed to be included in the joint property of the spouses until otherwise proved.

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

An inventory of assets must not be established under the regimes of community of property and separation of property but it should be established under the community of accrued gains regime (see 5.3.).

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?

Under the community of property regime, the spouses exercise the rights and obligations related to their joint property jointly or with the consent of the other spouse. For transactions concerning movable property or a right belonging to the joint property of the spouses, the consent of the other spouse is presumed (consent is not presumed for transactions with immovable property). A spouse may enter into transactions with joint property for the satisfaction of everyday needs of the family himself/herself and without the consent of the other spouse.

A transaction with joint immovable property conducted without the consent of the other spouse is null and void.

The spouses shall administer their separate property independently and at their own expense and the consent of the other spouse is not required. Spouse may dispose a dwelling which is the spouse's separate property and is used as a housing of the family or used separately by the spouse who is not the owner and grant the use thereof to a third party or terminate the legal relationship on which the use thereof is based only with the consent of the other spouse with the condition that the ownership of the dwelling was obtained after 01.01.2015. A transaction without the consent of the other spouse is void. That does not apply for dwellings obtained before 01.01.2015.

Under the community of accrued gains regime, property belonging to a spouse is his/her separate property, of which only the owning spouse can dispose independently (without the consent of the other spouse) regardless of whether the property was acquired before or during the marriage. However, for entering into transactions concerning the dwelling used for the housing of the family or used by the non-owning spouse, the consent of the latter is required. If such a transaction is concluded without the consent of the non-owning spouse, it is void and the other spouse has the right to file a claim arising from invalidity of the disposal against the third party.

Each spouse administers his/her separate property independently at his/her own expense.

Under the separation of property regime, with regards to their property relations, the spouses are treated as if they were not married and each spouse administers and disposes of his/her property independently at his/her own expense.

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

Regardless of which matrimonial property regime has been chosen, the spouses incur a solidary obligation from transactions concluded by one spouse for running the common household, in the interests of the children or to cover other ordinary needs of the family (for example, if one spouse takes a loan in the family interest, then the other spouse is solidarily obliged). The amount of the transaction may not exceed a level commensurate to the living conditions of the spouses.

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

Regardless of which matrimonial property regime has been chosen, a spouse shall be liable for the obligations incurred by the other spouse only in so far as the other spouse may represent or obligate the spouse by his/her act.

Under the community of property regime, the spouses are fully liable to third parties with their separate and joint property for the following:

• obligations that either spouse has incurred to satisfy the needs of the family;
• fulfilment of solidary obligations taken by either spouse;
• obligations where a spouse has agreed with third parties to be liable both with the separate and the joint property (consent from the other spouse is necessary).

In the case of other obligations, each spouse is liable with his/her separate property and one-half of the joint property (i.e. his/her share). A creditor may demand the division of joint property if it is proved that the debtor spouse’s separate property is not sufficient for discharging the obligations.

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

• terminate the property regime chosen upon marriage or by the marital property contract;
• choose another property regime prescribed by law;
• make alterations in the selected property regime in the cases prescribed by law;
• specify the law applicable to their proprietary relationship if the spouses reside in different countries or have different citizenship.

• that the restrictions imposed by legislation for transactions concerning the family’s dwelling or a dwelling used separately by one spouse do not apply (see 2.4.);
• individual assets or certain type of assets may be declared joint property or separate property;
• the right to administer joint property may be entrusted to one spouse and such a right may be restricted by terms agreed in the contract;
• it may be stipulated that the consent of a spouse is not required for transactions conducted in independent economic activity of the other spouse.

• that the restrictions imposed by legislation for transactions concerning the family’s dwelling or a dwelling used separately by one spouse do not apply (see 2.4.);
• that the scope and calculation of fixed assets are determined differently than provided by the law (see 5.3.).

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

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

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

3.5. Can a matrimonial contract be given retroactive effect according to the national law in your country, when spouses conclude this contract during marriage?

If on conclusion of the marriage the spouses choose either the community of accrued gains regime or the separation of property regime, then the vital statistics official or notary concluding the marriage or the civil law notary shall submit a notice to the matrimonial property register for making the relevant entry in the register.

If the prospective spouses do not select a proprietary relationship by an application for marriage and do not enter into a marital property contract, the provisions regarding community of property shall apply to their proprietary relations as of the conclusion of the marriage and an entries into the matrimonial property register are not made.

If the spouses conclude a marriage contract, then the details of the contract are entered in the matrimonial property register at the request of a at least one of the spouses on the basis of an application certified by a notary.

If the community of property or the community of accrued gains regime is terminated by the court, then the court shall send the copy of the court decision to the Chamber of Notaries for entry in the matrimonial property register.

4.1. Do one or more matrimonial property registers exist in your country? Where?

The Republic of Estonia has one matrimonial property register, which is maintained by the Chamber of Notaries.

(Estonian Matrimonial Property Register Act)

4.2. Which documents are registered? Which information is registered?

The following is entered on a register card: the personal data of the spouses, matrimonial property regime, amendments of the spouses’ property rights, the application of Estonian or foreign law to the spouses’ proprietary rights and data about the marital property contract. The documents that constituted grounds for making the entry are kept in the register file (marriage contracts, court decisions, applications for making the entries, etc.).

4.3. How and by whom can the information in the register be accessed?

Everyone can access the information entered on a registry card of the marital property register and obtain printouts thereof. Registry files can be accessed and printouts of documents contained therein can be obtained upon the existence of a legitimate interest.

The legitimate interest of a spouse, notaries, bailiffs, trustees in bankruptcy, courts and authorities which have supervisory authority is presumed.

The information contained in the marital property register can be accessed at notaries' offices and on the relevant website. A notary fee is paid in accordance with the Notary Fees Act upon accessing information contained in the marital property register at the notary's office.

4.4. What are the legal effects of registration (validity, opposability)?

If the spouses make amendments into the community of property regime or terminate or amend their matrimonial property regime (see 3.1.), then it shall have legal effect with regard to third parties only if the changes have been entered in the matrimonial property register or if the third party was aware of the existence of the marital property contract.

4.5. Can a matrimonial contract concluded in a foreign state according to foreign law be registered in your country? If yes, under which conditions or formalities?

Yes, a matrimonial contract concluded in a foreign state can be registered in Estonian marital property register. In order to make an entry in the marital property register on the basis of a marital property contract entered into abroad, the spouses submit either a written application or a digitally signed application in front of a notary (Notarial regulation §451(3)). Documents which are not in Estonian shall be submitted together with the Estonian translation made by a sworn translator (Marital Property Register Act §8(2)).

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

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

5.3. Does one spouse have a claim to an equalisation payment?

• property owned by either spouse prior to marriage;
• property acquired during the marriage gratuitously (such as a gift or inheritance);
• rights arising for a spouse due to a health problem or bodily injury and on the basis of state and obligatory pension insurance;
• assets acquired in exchange for assets not subject to being offset.

According to the Estonian Code of Civil Procedure, a matter falls under the jurisdiction of an Estonian court if it can adjudicate the matter pursuant to the provisions on jurisdiction or on the basis of an agreement on jurisdiction, unless otherwise provided by law or an international agreement. In cases prescribed by law, parties may enter into an agreement concerning jurisdiction. An agreement concerning jurisdiction may include an agreement to settle a dispute in a specific court.

It is possible to turn to notary in legal questions related to the property relations of the spouses.