The effects of a marriage contract

On immovable property that was acquired during the marriage, joint ownership of the spouses on the entire immovable property is entered in the cadaster, based on the fact of the existence of the marriage in the moment of acquisition of ownership over that property, which fact must be determined by the notary public during the procedure of solemnization of the contract.

Notwithstanding, the joint property of the spouses will not be registered on real estate in on condition that:

1/ there is no information on the existence of marriage in the relevant document or

2/ if a statement from both spouses stating that in the specific case it is not a joint property is submitted to the cadaster, or

3/ if the spouses regulated the issue of joint property acquisition differently in the form of a marriage contract.

Is there still a possibility then to acquire your own property, even though you are married? Yes! Even according to the Law itself, the property acquired by a spouse during the marriage in a legal transaction by which he exclusively acquires rights (e.g. division of joint property, inheritance, gift) that property shall represent his separate property (Article 168 of the Family Code).

Also, the property acquired by the spouse before the marriage represents his separate property.

However, the law assumes that the property acquired by the spouses during the marriage represents their joint property (Article 171, paragraph 1 of the Family Law). Furthermore, the law assumes that the shares of the spouses in this property are EQUAL.

Any abberation from this assumption can be raised as an issue both during the marriage as well as in case of termination of the marriage. For example, this question is a preliminary question in a situation where, during the marriage, one spouse wants to sell some property on which the common property of the spouses is registered, but the other spouse oppose that.

The division of common property can be performed in several procedures during the marriage, in the divorce proceedings, and also after the termination of the marriage, in a separate civil court proceeding.

This document has a specific content, and implies the collection of all necessary data before its preparation, for which reason it is highly advised that a lawyer participates in the preparation of this contract. The contract finally gains legal force and full effects in the solemnization procedure, which is carried out before a notary public.

Here we will outline some of the specific effects of the marriage contract:

1/ A marriage contract can regulate property relations on existing or future property in the manner prescribed by the provisions of the Family Law, while the disposal of property in the event of death must be carried out in the manner and in the form prescribed by the Law on Inheritance. A marriage contract between spouses, that is, future spouses, cannot act in the direction of renouncing an inheritance that has not been opened.

2/ The execution of the marriage contract excludes the possibility of the right to a new or additional division of the matrimonial property by applying the legal regime on the acquisition of joint property.

3/ In case of acquisition of the exclusive right of ownership on the subject real estate in favor of each of the spouses on the basis of the marriage contract, there is no obligation to pay inheritance and gift tax or tax on the transfer of absolute rights if neither of them gives the other spouse compensation from their separate property .

4/ Formal contracts cannot be terminated by an informal unilateral declaration of will by one contracting party, termination of the contract must be carried out in the form in which the contract was concluded.