From when does the liquidation-division of the matrimonial community of property begin?
If spouses are married under the statutory system - in practice, the vast majority - all income received from the date of marriage is joint. This applies to both professional income (e.g. wages, salaries and unemployment benefits) and income from one's own property (e.g. rents from one's own home).
Property acquired after the marriage (e.g. the family home) is also generally common. This applies equally to the debts associated with them.
In other words, a matrimonial community of property is created which, in the event of a divorce, must be liquidated and divided between the divorcing parties.
The starting time for the liquidation-division is in principle the time when the divorce is sought. This is the date of the writ in divorce or the date the petition for divorce is filed. From then on, it is every man for himself...provided that afterwards, the divorce is actually pronounced.
Why this point in time? Because it is assumed that from the filing of the petition for divorce, solidarity between the spouses has ceased.
What if parties have been effectively living apart for a long time before starting divorce proceedings?
In practice, it frequently happens that parties have been living de facto separated from each other for quite some time before they start divorce proceedings.
For example: a couple marries on 10.01.2000 and from 10.10.2005 the husband and wife live apart. After ten years of de facto separation, on 10.10.2015, the husband files for divorce.
Now what happens to the assets acquired during the period between 10.10.2005 and 10.10.2015 or the debts incurred during that period? Are these joint anyway?
Article 1278, paragraph 4 of the Judicial Code
For the case of a protracted de facto divorce, where the solidarity between the spouses has actually long since disappeared, this article of the law provides an exception:
‘The family court may, on the application of one of the spouses, if it deems it equitable due to exceptional circumstances peculiar to the case, decide in the decree pronouncing the divorce that some assets acquired or some debts incurred since the time the spouses were de facto living apart shall not be taken into account in the liquidation of the community. The parties may also bring such claim in the course of the liquidation of the community.’
Under this article, the court may decide not to take into account some assets acquired or some debts incurred from the time of the de facto separation (in our example from 10.10.2005). In other words, these assets or debts are excluded from the liquidation distribution.
Conditions?
To advance the time of commencement of the liquidation distribution, the following conditions must be cumulatively met:
1. These assets/debts must have been acquired or incurred since the de facto divorce;
So, in our example, after 10.10.2005.
2. There must be exceptional circumstances;
Unlikely to be accepted: the purchase of real estate and taking out a loan (before the de facto divorce), but the consequences of which continued even after the de facto divorce.
Is likely to be accepted: a ten-year de facto separation, the drawing up of a notarial inventory report, the initiation of divorce proceedings by mutual consent (which was not continued afterwards), etc.
3. One must identify specific assets/debts to which the claim relates;
Thus, the payment by one of the spouses of joint debts is not accepted.
Are likely to be accepted as acquired goods: an exceptionally high bonus from the employer, specific new goods purchased, etc.
Are likely to be accepted as debts: taking out a new loan, specific cash withdrawals from a joint account, etc.
4. The claim must be fair/reasonable.