Property Dispute in Divorce: How to Protect Your Family and Your Assets
When a couple decides to divorce, the emotional and practical consequences can be significant, especially when children are involved. One of the key issues that must be addressed is the management of the joint property acquired during the marriage. How can you protect your assets while ensuring the stability of your family?
In this article, we will explore how to manage property disputes, providing practical advice, judicial examples, and information on case law to guide you through this challenging stage of your life.
Case Law: What the Law States About Property in Divorce
The judicial framework regarding the division of property is strictly regulated. According to Article 1397 of the Civil Code, if there is no prenuptial agreement, property acquired during the marriage is considered joint and subject to division. However, each spouse is entitled to claim part of the property acquired through their personal contribution.
What is a Property Dispute?
A property dispute concerns the division of assets acquired during the marriage. In Greece, according to Article 1400 of the Civil Code, joint property is considered to belong equally to both spouses unless a different agreement exists (e.g., prenuptial contract). According to Article 1400, paragraph 1 of the Civil Code, if the marriage has been dissolved or annulled and one spouse's property has increased since the date of the marriage, the other spouse, provided they contributed to this increase, has the right to claim their share of the increase resulting from their contribution. Typically, this contribution is presumed to amount to one-third of the increase, unless proven otherwise.
Article 1400 of the Civil Code also applies in cases where the spouses have been separated for over three years. The claim arising from this article is primarily monetary and concerns the assessment of the increase in the liable spouse's property.
The "increase" in property does not refer only to a specific acquisition but to the difference in the spouse's property at two points in time: the date of marriage and the date the claim for participation in the property is made. To determine whether there has been an increase in property, the values of these properties are compared.
The contribution of the entitled spouse may be financial but may also include the provision of services or childcare. According to Article 1389 of the Civil Code, spouses are obliged to contribute jointly to family needs.
For one spouse to claim participation in the other spouse's property, the following is required:
- The dissolution or annulment of the marriage or a three-year separation.
- The increase in one spouse's property during the marriage.
- The contribution of the other spouse to this increase.
- The causal relationship between the contribution and the increase in the other spouse's property.
This presumption facilitates the administration of justice in cases where there is no clear evidence of how exactly the two spouses contributed to the acquisition of the assets. Essentially, one-third serves as a basis for calculating the share of the spouse claiming part of the property.
How can the one-third presumption be contested? A spouse wishing to claim a larger or smaller share than one-third must provide evidence showing that their contribution to the acquisition of the property was different. For instance, if one spouse acquired most of the property with personal funds or an inheritance, they may request a larger share than one-third.
Judicial Decisions: How Similar Cases Have Been Ruled
Example 1: Residence and Children In a decision by the Athens Court of First Instance (Decision 1822/2021), the husband claimed the entirety of the residence despite the couple having two children. The court ruled that the residence would remain with the parent who had custody of the children to ensure the stability of the family environment, while the other spouse would receive compensation for their share in the property.
Example 2: Business Profits. In another decision (Decision 512/2019 of the Thessaloniki Court of Appeals), the husband claimed a significant share of the profits from a business owned by the wife. The court ruled that the husband had not substantially contributed to the business and therefore had no right to her property.
Example 3: One-third Presumption. The Supreme Court, in a decision (Decision 4281/2013), recognized that spouses are entitled to one-third of the property acquired during the marriage, noting that the absence of evidence contesting one spouse's contribution may lead to the application of this presumption. This highlights the importance of transparency in the distribution of assets.
Example 4: Decision 2123/2019 of the Athens Court of First Instance. This decision reinforced the principle of the one-third presumption, deciding that contributions to joint assets would be assessed based on the data presented in court. The court determined that both spouses contributed to the acquisition of the property and allocated the division according to the presumption.
Practical Advice: How to Protect Your Assets
Proper preparation is key to avoiding financial difficulties in a divorce. Here are some practical tips for parents:
- Gather Financial Information: Record all assets and debts acquired during the marriage. This will help you have a clear picture for future division.
- Consult with a Lawyer: Discuss your situation with a lawyer experienced in divorce and property disputes. A specialized lawyer can guide you on your rights and suggest the best strategy.
- Protect the Children: If you have children, their residence may be one of the most critical issues to resolve. In many cases, parents agree to keep the house to maintain stability for the children.
- Mediation: Mediation is an alternative process for resolving property disputes without having to go to court. It can help find a compromise solution that satisfies both parties while saving time and money.
Conclusion:
Managing property in a divorce dispute is a challenge for any parent. Proper preparation, seeking legal and emotional support, and adapting to the new realities of your life will help you navigate this difficult phase while protecting your family.