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Property-legal relations of (extra)marital spouses


According to the family legislation of Republika Srpska, property of (extra) marital spouses (1) can be separate and common. Common property, marital property, consists of property acquired by the spouses through work during the duration of the marriage, as well as the income from this property. The term work is interpreted extensively, so that in addition to the employment relationship, work in the household and care for the current needs of the household are also taken into account. In addition to property acquired through work, common property also includes winnings from games of chance and income acquired through the use of intellectual property rights that arose during the life of that community. Income from the separate property of one spouse generated by his work or the work of the other spouse during the duration of the community of life also constitutes common property.

Spouses manage and dispose of common property by agreement.

In addition to common property (marital property), spouses also have their own separate property. The special property of a married spouse consists of the property they have at the time of the marriage, as well as the income from that property. In addition, special property is also property acquired by gift (including dowry), inheritance or unencumbered legal transaction.

Spouses can exclude the aforementioned legal regime of property-legal relations by signing a marriage contract.

The marriage contract is concluded in the form of a notarized document, and the subject of the contract can only be property-legal relations on existing or future property.

With the marriage contract, the spouses can arrange property and legal relations in the way they want. This contract can provide that everything that one spouse acquires during the marriage represents his/her special property, regardless of the method of acquisition; they can determine shares in joint property (e.g. 40% of joint property belongs to one and 60% to the other spouse); they can regulate the issue of investing the special property of one spouse in the special property of the other spouse; they can provide that one of them has the right to choose items from the common property in case of division; etc. Therefore, the law gives complete freedom to the spouses to regulate their property-legal relations in a way that suits them through the marriage contract. Exceptions are rights and obligations for spousal support or child support, as well as responsibilities for debts to third parties and disposal of the family home, which cannot be regulated contrary to the provisions of the Family Law.

If there is a division of common property, the spouses can divide the common property by agreement in any way they agree. The division agreement must be concluded in the form of a notarized document. The agreement can stipulate that one spouse pays the other the monetary equivalent of his share, that the entire property is sold and then that the money is distributed in proportion to the agreed shares, that each spouse receives certain things from the common property, etc.

If the spouses cannot agree on the division of common property, then they have to divide it through the court. In the judicial division of common property, each of the spouses is entitled to one half of the common property. It is important to note that each spouse can demand that the court determine a greater part of the common property that belongs to him and that spouse proves in court proceedings that his contribution to the acquisition of common property is greater than the contribution of the other spouse.

[1] Cohabitation (extramarital)  is equal to marriage in terms of property and legal relations. An extramarital union is a living union between a woman and a man that lasted at least two years or less if a child was born to it.

Author: Attorney at law Bojana Vranješ Čorokalo

The Srpska Times


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