What does and does not belong to the community property? How is the sale of a matrimonial property dealt with? What about inheritance? What does the narrowing and division of the community of property mean? Here are the answers.

The community of property arises automatically if the spouses do not have a prenuptial agreement. This agreement can be concluded even after the marriage.
The inheritance is not part of the community property.
Can only one spouse be registered in the Land Registry? Yes.

Community property of the spouses

The community of property is a legal institution that arises automatically upon marriage. If the spouses do not conclude a prenuptial agreement (which can be concluded after the wedding), their community property will be subject to the statutory regime. Under this regime, everything acquired by one or both spouses during the marriage is included in the community property, with a few exceptions.

What is not part of the community property?

Exceptions to the community of property include, for example, assets acquired by one spouse by gift or inheritance. If one spouse inherits or receives a house from his or her parents as a gift, the house does not become part of the community property but remains the sole property of that spouse. If the spouse sells the house and uses the money to buy another property or object, this newly acquired object will also be his/her sole property and not part of the community property. On the contrary, the rental income from such a house is already included in the community property.

Another exception is property acquired as compensation for non-pecuniary damage to the spouse's natural rights. This may include financial compensation for personal injuries suffered, such as pain, social difficulties, mental anguish or loss of earnings. Items acquired with these funds also remain the sole property of the spouse. Thus, if the husband used the compensation for the impairment of social life to buy an apartment, the apartment would belong to him alone and would not form part of the community property. However, the rental income from such an apartment would already be included in the community property.

Matrimonial property and sale of real estate

In practice, we often encounter a situation where only one of the spouses is listed as the exclusive owner in the Land Register, even if none of the exceptions to the statutory regime is met. This happens because the Land Registry does not examine the regime governing the property relations of the acquirer when authorising the registration of the ownership right. Thus, it may happen that even if only one spouse is listed in the land register, the property falls within the community property of both spouses. When buying a property from a married person, it is therefore important to check whether the property is community property and, if so, to secure the consent of the other spouse to the sale. Otherwise, the buyer runs the risk of invalidating the purchase contract, as the consent of both spouses is required to dispose of the community property.

The consent of the other spouse is required even if the property being sold is not part of the community property but serves as the spouses' family home. Therefore, if you are buying a property from your spouse and you verify that it is not part of the community property, you should ask for the consent of the other spouse if both spouses have lived there before. This consent is also required by banks when signing a mortgage agreement, often regardless of whether the spouses actually live in the mortgaged property.

Reduction of the matrimonial property - what is it?

As regards the agreed regime of the community of property (SJM), i.e. its reduction or division, the spouses may agree on it before the wedding or even after the marriage. However, this agreement must always be concluded through a notary. The resulting contractual regime usually consists of a separate property regime, where each spouse acquires property in his or her sole ownership, even though this property would normally belong to the community of property. The spouses may also narrow or enlarge the scope of their community property. They may, for example, agree that a common asset which was previously part of the community property becomes the exclusive property of one of them or, conversely, that an exclusive asset of one of them becomes part of the community property.

There are therefore many possible arrangements of the property relations between the spouses and it is not always possible to rely on the accuracy of the entries in the Land Register. If you are not sure what formalities need to be observed when selling or buying a property and what all needs to be fulfilled to avoid jeopardizing the transfer of property due to the spouses' property relations, consult the experts. We have extensive experience in dealing with property transactions where a matrimonial element is involved, including cases with a foreign element.