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Couples in Kosovo
1 - Which law applies?
1.1. Which law is applicable to a couple´s property? Which criteria/rules are used to determine the applicable law? Which international conventions have to be respected with regard to certain countries?
The Law No.2004/32 of the Family Law of Kosovo, among others, regulates family property relations and special court procedures for disputes on family relations.
⦁ Marital property regimes, according to the law on the Family of Kosovo no. 2004/32, are subject to the law of the country where both spouses are of the same nationality. If they are from different nationalities, from different countries, the law of the country of their habitual residence applies. If the spouses do not have the same nationality or do not have a permanent place of residence, the law of the place of the last common residence applies.
The applicable law on contractual marital property regimes is the law that was applicable to the marital jurisdictional regime when the spouses entered into the agreement.
If the applicable law cannot be determined under these rules, in Kosovo, only a by-law act is currently applicable - the Administrative Instruction on the International Legal Assistance Procedure in Criminal and Civil Matters no.2009 / 1-09, approved by the Ministry of Justice of the Republic of Kosovo. It does not provide a complete and satisfactory solution to the issues of international legal cooperation in the civil field.
According to the Law on Courts No. 03 / L-199, in Article 11, paragraph 2 of this Law, the jurisdiction of the Kosovo Courts has stipulated that the Basic Courts in Kosovo (seven (7)) are competent to provide international law assistance and to decide if the decisions of foreign courts that deal with settlement in statutory, family, property and other legal relationships are receivable. So far, there has been no legal basis in the Republic of Kosovo, as no special law has yet been issued to regulate the area of international legal cooperation in civil matters or international private law.
In the absence of a new legal cover in the Republic of Kosovo, the Law on the Resolution of the Conflicts of Laws of the former SFRY of 1982 ("Official Journal of SFRY, No.43 / 82 and 78/82 "), with changes, applies, which in many respects is incompatible and with the new reality that appeared in the meantime in the territory of the former SFRY.
Unlike criminal cases, Kosovo has not signed any bilateral or multilateral agreements so far with the states of the region, or other countries, on international legal cooperation matters in the civil field. Thus, the Republic of Kosovo is not a party to the 1978 Hague Convention on the Applicable Law on Marital Property Regimes.
In 2011, the Ministry of Justice of the Republic of Kosovo applied for membership or observer status at The Hague Conference on Private International Law in order to attend seminars, workshops or conferences of this organization, but still has not received any response yet.
There are varying views concerning the validity of the agreements signed between the former SFRY, to which Kosovo belonged, and some EU member states, since the EU Regulation No.1346 /2000 states that all these agreements are abolished, while Article 145 of the Constitution of the Republic of Kosovo foresees that international agreements and other international cooperation acts that are in force on the day when this Constitution comes into force will continue to be respected until the moment when new agreements or acts are negotiated or withdrawn, in accordance with their terms, or until they are replaced by new international agreements or acts covering the same fields and which have been approved in accordance with this Constitution.
Therefore, it appears that a number of agreements signed by the former SFRY and Austria, Bulgaria, Czech Republic, France, Cyprus, Hungary, Poland, Romania, Slovakia, the United Kingdom and Turkey are still in force.
1.2. Do the spouses have the option of choosing the applicable law? If so, by which principles is this choice governed (e.g. the laws to be chosen, formal requirements, retro-activity)?
NO, according to the law on the Family of Kosovo, no. 2004/32, in cases where both spouses are Kosovar citizens, such an choice is not possible. In cases where a spouse is a foreign national and if the law is initially applicable to matrimonial property relations (the law applicable at the time the spouses entered into an agreement) allows such a choice, the spouses may choose the law in force , if the law of the other state and the effects of its application are not in contradiction with the Constitution of the Republic of Kosovo (Article 145.2 of the Constitution of the Republic of Kosovo), and if it is possible for the Courts of Kosovo to accept and recognize the foreign decision.
2 - Is there a statutory matrimonial property regime and if so, what does it provide?
⦁ The Family Law, no. 2004/32 are the legal rules wich regulates spousal marital property relations and are considered marital property regime. The property relations of spouses are regulated by Articles 45-58 of this law.
This shows that the regulation of property relations, with the provisions of this law, is highly important, because personal relationships can not be strong without a healthy property relationship between spouses as the economic basis has a direct impact on the welfare not only of the family but even of the spouses themselves. At the same time, these provisions also secure the principle of equality between husband and wife, respect and mutual assistance between them and family members, and equal treatment of the rights and obligations foreseen by the Law. None of the spouses shall arbitrarily be deprived of his/her property.
2.1. Please describe the general principles: Which goods are part of community property? Which goods are part of the separate estates of the spouses?
⦁ On the basis of the legal institute of a “Joint Ownership of Subsequently Acquired Property”, the property of spouses may be separate property or joint property. According to the article 47 of the Law on Family, Joint property of spouses is the property acquired through work during the course of the marriage as well as the income deriving from such property. Joint property may be comprised also of intangible and obligatory rights. Property of spouses acquired jointly through gambling games is considered joint property. Spouses are joint owners in equal shares of the joint property unless otherwise agreed on.
Which goods are part of the separate estates of the spouses?
⦁ Law on Family also regulate separate property of spouses. Property belonging to the spouse at the time of entering into wedlock remains separate property of his/hers. Separate property is also property acquired during marriage through inheritance, donation, or other forms of legal acquisition. Property belonging to the spouse based on the proportion of common property is also separate property. The product of art, intellectual work or intellectual property is consider separate property of the spouse who has created it. Each spouse independently administers and possesses his/her separate property during the course of the marriage.
2.2. Are there legal presumptions concerning the attribution of property?
⦁ When only one of the spouses is registered as property right holder of the joint property in the immovable property rights register, it shall be considered as if registration was carried out on behalf of both spouses.The property cannot be alienated or administered without the consent of both spouses as defined by the applicable law, as it is foreseen in article, 50, paragraph 2.
2.3. Should the spouses establish an inventory of assets? If so, when and how?
⦁ Not necessarily.
2.4. Who is in charge of the administration of the property? Who is entitled to dispose of the property? May one spouse dispose of/administer the property alone or is the consent of the other spouse necessary (e.g. in cases of disposal of the spouses’ home)? What effect does the missing consent have on the validity of a legal transaction and can it be pleaded against a third party?
⦁ The spouses shall carry out the administration and disposition of the joint matrimonial property together and in agreement (Article 49 of the Familiy Law). According to Article 51 of the Family Law, no. 2004/32 the spouses may, by special agreement, regulate the possession and administration of their property. Spouses may contract that administration and possession of joint property in a whole or in parts shall be carried out by one of the spouses. The contract may be limited only to the administration or rights of possession. Unless otherwise contracted, administration includes possession within regular activity. The contract may also refer to all special acts of regular administration or special acts that have been determined. In accordance with the law in force, the property can not be sold or purchased without the consent of both spouses, so the Notary is obliged in both cases (sale or purchase of immovable property) to seek the consent of each spouse.
Without the consent of a spouse, an immovable property can not be sold or purchased.
2.5. Are any legal transactions made by one spouse also binding on the other?
⦁ NO, unless if there is a special written consent of the spouse, certified by the competent body-notary.
2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?
⦁ Article 57 of the Family Law, no. 2004/32 regulates the responsibilities and duties of spouses on debts created during the marriage towards creditors and third persons: spouses carry responsibility for their personal obligations resulting from separate property and their obligations resulting from the share in joint property. Both spouses are bound by joint and individual obligations through their joint and separate property and for obligations that one of the spouses has to fulfill towards third persons, as well as by obligations, which need to be fulfilled by both spouses. The spouse, who through separate property has fulfilled common obligations, has the right to request that the other spouse compensates for his spouses share.
3 - How can the spouses arrange their property regime?
⦁ En vertu de l'article 30, paragraphe 1.3 de la Loi sur les Notaires du Kosovo, les époux peuvent aménager leur régime matrimonial au moyen d'un contrat de mariage, acte notarié obligatoire qui ne peut être rédigé que par un notaire.
« Les actes notariés sont obligatoire en ce qui concerne les transactions juridiques suivantes, sous peine de nullité : 1,3) ; Les contrats de mariage et les accords sur les relations patrimoniales entre époux ou personnes vivant en communauté non-maritale ».
3,1) ; Quelles sont les dispositions qui peuvent être modifiées par contrat et celles qui ne le peuvent pas ? Quel régime matrimonial les époux peuvent-ils choisir ?
⦁ Le contrat de mariage peut contenir des clauses sur le patrimoine individuel ainsi que sur le patrimoine commun acquis durant le mariage par les deux époux.
3,2) ; Quels sont les conditions formelles et qui faut-il contacter ?
⦁ Le contrat de mariage est l'acte juridique formel. Il ne peut être rédigé que par un notaire.
3,3) ; À quel moment un contrat de mariage peut-il être conclu et quand prend-il effet ?
⦁ Le contrat peut être préparé à tout moment sur requête des parties contractantes et il prend effet au moment de sa signature devant un notaire.
3,4) ; Un contrat existant peut-il être modifié par les époux ? Si oui, sous quelles conditions ?
⦁ Avec l'accord des deux parties, un contrat de mariage existant peut être modifié devant notaire, dans les annexes.
4 - Can or must the matrimonial property regime be registered?
⦁ Kosovo does not have a public register for marital contracts, but, the Article 50 of the Family Law, no. 2004/32, concerning the immovable property of spouses foreseens: rights of spouses regarding immovable objects, which are their joint property as provided for in Article 47 of this Law, are registred in the public register for immovable property on behalf of both spouses as joint property with undetermined shares. When only one of the spouses is registered as the property right holder of the joint property in the immovable property rights register, it shall be considered as if registration was carried out on behalf of both spouses. The property cannot be alienated or administered without the consent of both spouses, as defined by the applicable law. When both spouses register in the public register relating to immovable property as joint owners for determined shares, it shall be considered that they have portioned out the joint property.
4.1. Do one or more registers of marriage contracts exist in your country? Where?
⦁ There is no public register for the registration of Marriage Contracts. Marriage contracts are mandatory notarial acts which are drafted only by the notary. Parties can register their immovable rights from such marriage contracts as a note, in the public register of immovable property.
4.2. Which documents are registered? Which information is registered?
⦁ In absence of a register for marriage contracts, such contracts may be registered, as a note/record, on the immovable property register, by sending a contract for registration to the office for registration of immovable property in the municipality where the immovable property is located, regarding the rights of parties and on the immovable property, specified by the contract.
4.3. How and by whom can the information in the register be accessed
⦁ In accordance with the legislation in force, the public may only have access to the public register of immovable property, but cannot ask for the existence or not of marital contracts as mandatory notarial acts. Such contracts may only be accessed by the contractor parties, their legal representatives, and only with a court order.
4.4. What are the legal effects of registration (validity, opposability)?
⦁ We do not have such a register for marriage contracts, except eventual registration of the rights on the immovable property, stipulated by the marriage contract and their public effect of the public registers of immovable property.
5 - What are the consequences of divorce/separation?
5.1. How is the property (rights in rem) divided?
⦁ In accordance with the applicable law, on the occasion of divorce, the common property is seperated between the spouses.
5.2. Who is liable for existing debts after the divorce/separation?
⦁ When dividing joint property, the debt of the joint property shall be calculated in the shares of each spouse. Both of them are responsible for the existing debts during the marriage from part of each spouse.
5.3. Does one spouse have a claim to an equalisation payment (balancing payment)?
⦁ The spouse, who through separate property has fulfilled common obligations, has the right to request that the other spouse compensates for his spouses share (Article 57.3 of the applicable law).
5.3.1. In case of a property regime of community (or partnership) of acquests:
⦁ Does the claim have to be satisfied by means of a payment or in kind?
It has to be done by payment, but it can also be done in nature, according to their agreement or consent, then the turnover value of the item must be determined by the expertise of an official expert if they do not give up the value expertise.
⦁ How is the claim assessed?
In written form and evaluated by the competent body and the court in case of dispute.
⦁ What is the amount of the equalisation payment (balancing payment)?
Depends on everyone's contribution to property gain or debt creation.
⦁ When is the claim prescribed?
Upon receipt by the party, competent body or court.
5.3.2. In other cases (not community or partnership of acquests). Which ones?
⦁ Obligations that one of the spouses has to fulfill against third persons as well as the obligations that must be fulfilled by both spouses.
6 - What are the consequences of death?
The death of the spouse, or the announcement of the missing spouse dead, are one of the reasons to break-up a marriage - Article 60 of the Kosovo Family Law.
After the death of a spouse, if no marital agreement on acquired marital property provides otherwise, the surviving spouse may request the separation / separation of the common property during the inheritance proceedings conducted before the uncontested civil court or before a notary (Article 26.1 of the Law on the Heritage of Kosovo (LTK), Law No.2004 / 26). Only the share that belonged to the decedent after the distribution of the common property shall fall in the scope of the inheritance (Article 26.2 of the LTK) and the surviving spouse will inherit a share of the deceased's assets (irrespective of the inheritance planned in the will), according to the inheritance ranks that are the first or second order of inheritance. In the first order of inheritance, the surviving spouse will inherit the same part as the child of the deceased (Article 12 of the LTK). If a deceased has no child, his/her spouse and his/her parents will inherit the property in equal parts (half goes to the spouse, and the other half to the parents (Article 14.2 of the LTK). If the dead person has no living parents, the surviving spouse will inherit the property in its entirety (Article 14.4 of the LTK).
7 - Does your national law provide a special matrimonial property regime for multi-national couples?
No, there is no special matrimonial property regime for multi-national couples, the same provisions apply.
8 - What is the legal position concerning the property of registered and non-registered partners?
According to Article 58, Property gained through corporate work of husband and wife in an extra marital community (partnership without cohabitation) is considered their common property. Property acquired during the factualrelationship (out-of-marriage relationship) and that is subject to distribution or division is considered joint property. Provisions of this law relating to apportioning of joint property of spouses of a legally registered marriage apply analogically for property relations of persons in a factual relationship (out-of-marriage relationship).
9 - Which is the competent authority to turn to in cases of disputes and other legal issues?
When an agreement is not reached while the share of each spouse belongs to the joint property, it shall be decided upon by the court. The decision shall be based on the spouses contribution, by evaluating all circumstances and considering not only personal income and other revenues of each spouse, but also the assistance of one spouse provided to the other spouse, i.e. children’s care, conduct of housework, care and maintenance of property and any other form of work and co-operation related to the administration, maintenance and increase of joint property. The competent court shall also decide in case of disputes regarding the spouses’ share provided for in this Article.