5.1. How is the property (rights in rem) divided?

In the absence of an agreement stating otherwise, termination of the marriage also means termination of the community of property regime, which leads to the division of the community property (§ 148 ods.1 OZ). The division is done by way of agreement between the spouses or by the court upon application by one spouse. In both cases it has to be considered that the shares of both spouses are equal. Each of the spouses is entitled to claim the reimbursement of costs spent from his/her personal property on the community property and vice versa is obliged to compensate what was spent from the community property on his/her personal property. For the distribution of the community property, particularly the needs of minor children have to be taken into consideration, in addition to how each of the spouses took care of the family and how they contributed to the acquisition and maintenance of community property. When considering the degree of endeavour, care for the common children and management of the common household must also be taken into account (§ 150 OZ).

If within three years from the termination of the community of property regime no agreement on the division was concluded and none of the spouses made an application to the court for a decision on the division of the community property, then it is assumed that the movables of the community property belong to the spouse who uses them for his/her needs, for the needs of the family or for the household exclusively as the owner. Considering the other movables and the immovable property, they are in co-ownership and shares of the spouses are equal. The same applies to the other common property rights of the spouses, such as the rights over common deposits and claims (§ 149 ods. 4 OZ).

5.2. Who is liable for existing debts after the divorce/separation?

Vain lapsing of the three year period for the division establishes the legal presumption that the former spouses are obliged in the same proportion considering the debts. In the case of an agreement between the spouses outside of court or in the proceedings at the court, the debts incurred during the marriage and originating from their common management are also settled. This settlement is only effective between the spouses, not in relation to third parties. Therefore third parties have the right to claim the payment of a debt from either of the former spouses.

5.3. Does one spouse have a claim to an equalisation payment?

Each of the spouses is entitled to request reimbursement of costs spent on the community property from his/her personal property. This claim should be settled from the other spouse’s share in the community property.

When settling the community property the assets should be divided between the spouses in the proportion corresponding to the sizes of their shares. If the value of the assets assigned to a spouse is higher than his/her share in the community property, he/she is obliged to compensate the difference to the other spouse in money.

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