Are you getting a divorce? In such a case, the community property (also called “SJM“) will be dissolved and subsequently divided, either by agreement between the spouses, by the court or according to the statutory rules. We have discussed what all is included in SJM in the previous article.
Settlement of SJM by agreement
The agreement on the division of the matrimonial property requires a written form if it is concluded during the marriage or if the object of the division is a property for which a written agreement is also required (in particular a property registered in the Land Register). The agreement always has effect on the date on which the community property was dissolved or ceased to exist. If there is no agreement between the spouses on the division of the community of property, either spouse may ask the court to decide on the division of the community of property.
Settlement of SJM by the court
The spouses can agree on the division of the community property by agreement according to their wishes. However, unless they agree otherwise, the following rules apply to the settlement of the SJM:
- the shares of both spouses in the settled property are equal,
- each spouse reimburses what has been spent from the community property on his/her sole property (taking into account investments from SJM),
- each spouse has the right to claim to be reimbursed for what he/she has spent from his/her sole property on the community property (taking into account the so-called contributions to the community property),
- the needs of dependent children shall be taken into account ,
- how each spouse took care of the family, in particular how they looked after the children and the family household,
- the contribution of each spouse to the acquisition and maintenance of the assets belonging to the community property shall be taken into account.
What about contributions and investments within the exclusive property?
However, the settlement will not include an entry if one of the spouses provides his/her exclusive resources for the benefit of the SJM, but the goods or service so acquired ceases to exist over time and no longer exists on the date of dissolution of the SJM. Such an input can be, for example, a holiday (which was “consumed” on the date of dissolution of the SJM or even a car that was acquired by the spouses and subsequently sold). However, if the proceeds from the sale of the old car were used to purchase a new car which would be part of the community property, the value of the new car would be settled in favour of the investing spouse as his contribution.
However, the contribution to the community property is not the work of the spouse provided to the community property, since the principles of the settlement are based on the fact that the spouses are obliged to assist each other during the marriage (the same applies to work from the community property for the benefit of the exclusive property of one spouse, which is not considered an investment, even if its value can be expressed in monetary terms). Thus, investments made from the community property for the exclusive property of one spouse are not, for example, work done by the spouse in the renovation of a house owned by the other spouse.
Costs incurred by one spouse for the repayment of a mortgage loan on a property owned by the other spouse are also not included in the SJM if this amount corresponds to the normal rent.
What about the valorisation of inputs and investments?
The value of investments (what has been spent from the community property on the spouse’s sole property) and contributions (what has been spent from the spouse’s sole property on the community property) in the context of the division of the community of property shall be taken into account in the division of the community of property , increased or decreased according to the increase or decrease in the value of the part of the property on which the expenditure was made from the date of the expenditure to the date of the dissolution of the community of property.
If you would like more information in this regard, please do not hesitate to contact us.
This article is for informational purposes only and does not constitute legal advice or guidance for any particular case.