Couples in Montenegro
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 Family Law ( Family Act) issued at 2006 is applicable to a couple's property
-The criteria are that the couple ( just male and female) are registered as spouses or live in extramarital hive.
-Montenegro, before independence, as part of Federal republic of Yugoslavia, accepted all conventions that were adopted by Socialist Federal republic of Yugoslavia. For more details Ministry of justice is to be contacted.
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)?
-The applicable Law is a Family Law, in general, and other laws that regulates ownership rights-Law of ownership rights, etc.There is no option of choosing the Law.Just domestic Law is applicable.
-Spouses may choose mediation before they go to court, and, if they are at the court, even then, mediation is always possible.
2 - Is there a statutory matrimonial property regime and if so, what does it provide?
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?
-Goods that are earned by couple during their joint life is considered as a community property. Property that is earned using the property that has been a sole property of one spouse, if both spouses have been working in gaining incomes from this property is considered as joint (community) property, too.
-Any goods that belonged to a spouse before marriage are part of separate estates by spouses. The goods that one spouse received as a gift is also considered as well.
2.2. Are there legal presumptions concerning the attribution of property?
-Question is not understandable enough.
The same as in France, Gerogia and Spain. Anyhow, it has been mainly answered in 5.3.1.
2.3. Should the spouses establish an inventory of assets? If so, when and how?
-Only by agreement of spouses. It is not obliged. Mostly used in premarriage contracts.
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?
- Spouses administer the property jointly.
-One spouse can not dispose or administer the property alone without consent of other spouse. In case it happens that act would be annulled at the court as totally invalid in case of any legal transaction upon joint estates and goods of spouses.
-Missed consent may be pleaded against third party.It is important that notary who composes a notarial deed is obliged to ask whether a contract party is married and whether property is earned as matrimonial regime.In that case other spouse has to be present and signed a notarial deed as agreement for legal transaction .
2.5. Are any legal transactions made by one spouse also binding on the other?
-Yes, if this transaction is done for purpose and benefit of the wedlock ( the marriage). In this case they are responsible with their joint property and with their own property.
2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?
-There are few possible situation:
- For personal obligation ( debts, etc.) that are constituted before marriage and after, that spouse is solely responsible. The spouse is responsible by its own property and with his share in joint property. Fairly, this solution could intiate a lot of disputes if it comes to the court.
- For debts incurred during the marriage if those debts are related for needs of marriage, sposuses, their kids, both spouses are responsible, in solidarity, with their joint property and with their sole ( own) property.Any property may be used by creditors to satisfy their claimes except that forced executive procedure can not be apllied for more than a half of income of a sposuse. Forced executive procedure at real estate property is with no limit.
3 - How can the spouses arrange their property regime?
3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?
-Property regime may be modified before marriage with prematrimonial agreement (contract) between spouses. If subject of this agreement are real estates that agreement is to be registered at Cadaster (landlord's) books.
-The same solution is possible during marriage time and then common ownership at the property, for goods and real estate , becomes a property in ideal parts.
-There are no restrictions in subjects of (pre) matrimonial agreement.
3.2. What are the formal requirements and who should I contact?
-(Pre)Matrimonial contract is to be concluded in form of notarial deed as obligatory, so spouses have to contact notary office.
3.3. When may the contract be concluded and when does it come into effect?
-As already explained, it may be concluded before and during the marriage.
3.4. May an existing contract be modified by the spouses? If so, subject to what conditions?
- As any other contract, it may be modified by the spouses at any time. There are no special conditions except that any modification is to be proved by both spouses.
4 - Can or must the matrimonial property regime be registered?
-Just if the subject are real estate, as explained above.
4.1. Do one or more registers of marriage contracts exist in your country? Where?
-There is no special register for such kind of contracts except for evidence of real estate.
4.2. Which documents are registered? Which information is registered?
-As above. This means that (pre) marriage contract may be ( not obligatory) registered at Cadaster.
4.3. How and by whom can the information in the register be accessed?
-Any person has the right of access into Cadastre evidence of list of deed (property list), because it is a public document.
4.4. What are the legal effects of registration (validity, opposability)?
-Legal effect is that any legal transaction with the property that is under registration of (pre)matrimonial regime is to be approved or opposed from both spouses.
5 - What are the consequences of divorce/separation?
6 - What are the consequences of death?
-The inheritance procedure is to be activated. Notaries are in charge for inheritance procedure. In inheritance procedure the surviving spouse has the right to demand that part of property ( usually 1/2) as own property and that only the other half may be matter of inheritance procedure.
-The spouse inherts his died spouse in equal shares with their kids. If they have no kids, the mother and the father of spouse ( if alive) inherit 1/2 and spouse 1/2. If mother and father are not alive then dead spouse's brother(s) and sister(s) inherits 1/2 and sposuse 1/2.
7 - Does your national law provide a special matrimonial property regime for multi-national couples?
8 - What is the legal position concerning the property of registered and non-registered partners?
It is very precisely answered in section 1)-
“The criteria are that the couple ( just male and female) are registered as spouses or live in extramarital hive.”
So, Montengro does not recognize homosexual partnership as a part of our legal system.
9 - Which is the competent authority to turn to in cases of disputes and other legal issues?
-For disputes about property, mediation may be involved or court, depends upon will of spouses.