Separate and joint property of the spouses and division of property in case of divorce

What we will focus on in this article is the property aspect of marriage, with special reference to the issue of the status of personal property that belonged to a spouse prior to the marriage, ie. what happens with the personal property that the future spouses bring into the marriage, but also on the issue of division of property in case of divorce.


One of the most important, and nowadays the most sensitive aspects of the marriage, is the thing of property relations. The property of the spouses can be separate and shared, but the spouses can arrange their property relations in a special way, ie. Prenuptial agreement.


Personal property that belonged to a spouse prior to the marriage, in the sense of the Serbian Family Law, is all property acquired by the spouse before the conclusion of the marriage. Practically, this means that your personal property consists of all movable (car, valuable jewelry, money in bank accounts, etc. i) and real estate (apartments, houses, cottages…) that you acquired before marriage, and when “you enter” Thus acquired property, it has the status of personal property. The status of personal property also has the property acquired by the spouse during the marriage in the event that he inherited the property gift or other legal transaction that acquires only rights is his special property .


Unlike personal property that belonged to a spouse prior to the marriage, joint property is all property acquired by spouses during the marriage. One of the most important issues concerning the different legal treatment of spouses’ separate and joint property is: management and disposal of property. Namely, the spouse disposes of and manages his / her special property independently, which means that the consent of the other spouse is not required. As for the disposal and management of joint property, the spouses dispose of and manage it jointly, so the legal presumption is that the spouse always undertakes regular management activities with the consent of the other spouse.


Joint property can be divided during the marriage and after the dissolution of the marriage. The division of property can be done by agreement. In essence, according to the Serbian Family Law, any determination of the spouses’ co-ownership share in the joint property is considered a division of property. This is an example, which means that if spouses make purchase of real estate property during the marriage, the spouses are registered in the public register (cadastre) as co-owners in the share ½, it is considered that in accordance with the Serbian Family Law, the property is divided. Judicial division of joint property will be carried out only if the spouses cannot divide the property by agreement. During the judicial division of property, the assumption is that the shares are equal, which means that each spouse has one half of the joint marital property. The burden of proving the fact that the share in the property is higher than the legally assumed half is on the spouse who claims it.


The division of things for the personal use of the spouse is not included in his share and belongs to him, if the value of these things is not disproportionately large in relation to the value of the joint property. If that is the case, they will again belong to the spouse in exclusive ownership, with the difference that their value will be included in his share. A special review should be made in terms of things intended for the child, and such things will belong to the exclusive ownership of the parent, ie. to a spouse who exercises independent parental rights, without including his share. As we mentioned earlier, the division of property can be done during the marriage and after the termination. In practice, of course, it is much more common for spouses to share joint property during divorce. A marriage can be dissolved by a divorce judgment based on a divorce agreement or a judgment in a marital dispute. In both cases, the decision on the division of joint property is included in the operative part of the judgment.


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