Couples in Serbia
1 - Which law applies?
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?
According to the Article 36 of the Private International Law Act of the Republic of Serbia the law which is applicable to matrimonial regime is: a) the law of the country of which both spouses are nationals; b) if spouses have the different nationalities the law of the country of their common habitual residence; c) if spouses do not have the same nationality nor a common habitual residence, the law of the country of their last common residence; d) if the applicable law cannot be determined according to any of the previous rules, Serbian Law would be applicable.
For the contractual matrimonial regimes - if a couple has entered into an agreement concerning their property, the applicable law shall be the law that was applicable to their property relations at the time they entered into the agreement.
The Republic of Serbia has bilateral conventions which contain conflict-of-law rules on matrimonial property regime with: Hungary, Czech Republic, Slovakia, Poland, Romania, the Russian Federation and Mongolia (bilateral conventions are available at: https://www.mpravde.gov.rs/tekst/873/bilateralni-ugovori.php.
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)?
Yes, under the set conditions: a) one spouse is a national of another country and b) the choice of the applicable law is allowed by the law which is originally applicable to the matrimonial regime and c) the rules of the chosen applicable law or its application are not against the public policy of the Republic of Serbia.
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?
Statutory matrimonial property regime is set under the articles 171-194 of the Family law. According to these rules spouses have separate property and joint property.
Property that has been acquired by spouse before entering marriage shall be his/her separate property. Also, property that has been acquired by the spouse during marriage either by division of the joint property or by inheritance or donation shall be considered his/her separate property.
Joint property includes all property that spouses have acquired or earned by work during marriage or the property which was acquired by the assets from such property.
2.2. Are there legal presumptions concerning the attribution of property?
According to the Serbian Family law, spouses are co-owners of the joint property. Spouses shall administer and dispose joint property only by mutual consent. One spouse may not dispose his/her share in joint property nor may he/she burden it with legal operations inter vivos.
Of course, spouses may regulate or divide their joint property by marriage or pre-marriage agreement but in absence of such agreement the spouses are co-owners of the joint property by the virtue of the Law, with the legal presumption of equality of shares in such join property.
2.3. Should the spouses establish an inventory of assets? If so, when and how?
Serbian Family law does not require the establishment of an inventory of assets. Of course, spouses can establish such inventory or enter into marriage or pre-marriage agreement which would prevent any disputes regarding the separate or joint property status of assets.
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 administer joint property by mutual consent. However, spouses may enter into Contract on administration and disposal of joint property (Article 192 of the Serbian Family law) which will entitled one of spouses to administer and/or to have a right to dispose of entire joint property or some of its parts.
In the absence of the Contract on administration and disposal of joint property it shall be considered that one spouse always undertakes operations of ordinary administration of the joint property with consent of the other spouse. However, any extraordinary administration of joint property (e.g.selling, establishment of mortgage, etc.) has to be done jointly, or by one of the spouses with the presentation of written notarized consent given by the other spouse. The missing consent of the other spouse can be pleaded against third party (e.g. buyer, creditor, etc...) and it is higly advisable to both establish the matrimonial status of the property and provide the consent of other spouse if nedeed.
2.5. Are any legal transactions made by one spouse also binding on the other?
No. Each spouse is liable only for his/her personal obligations undertaken before or after the conclusion of the marriage with his/her separate property as well as his/her share in joint property.
2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?
In case of debts or obligations that have been undertaken to satisfy the needs of cohabitation in marriage, as well as for obligations which, by the law itself, burden both spouses, spouses are jointly and severally liable both with their joint and separate properties.
A spouse who has settled a joint obligation from his/her separate property has the right to reimburse from the other spouse in proportion to his/her share in their joint property.
3 - How can the spouses arrange their property regime?
Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?
Spouses can arrange their property regime by concluding a marriage contract (article 188 of the Serbian Family law). By entering into such contract spouses could derogate the default legal regime of the joint property that is statutory matrimonial property regime and may freely opt for the separation of future and/or existing assets.
If one spouse is a national of another country, the spouses could agree on the application of foreign law to the matrimonial property regime under the conditions set in Private International Law Act of the Republic of Serbia.
3.2. What are the formal requirements and who should I contact?
Solemnization of the written contract previously made by parties. Marriage/pre-marriage contract must be concluded in a written form and solemnized by a notary , who is obliged to warn the spouses that by entering such agreement they derogate the default legal regime of the joint property.Such warning must be specificaly stated by notary in the solemnization clause.
3.3. When may the contract be concluded and when does it come into effect?
That is on future spouses to decide (it could be concluded both before and after the conclusion of marriage).
3.4. May an existing contract be modified by the spouses? If so, subject to what conditions?
Yes. Spouses can both conclude the new one or modify the existing contract at any given time. Eventual modifications must meet the formal requirements, that is, it must be done in the written form solemnized by a notary.
4 - Can or must the matrimonial property regime be registered?
4.1. Do one or more registers of marriage contracts exist in your country? Where?
According to the Serbian Family law a marriage contract whose object is immovable property is to be entered into the public record of rights on immovable property . There is no special register of marriage/pre-marriage contracts and it is entered (in case of immovable property) into a Real estate cadastre.
4.2. Which documents are registered? Which information is registered?
The Registration of the marriage contract in the Real estate cadaster contains the following data: the existence of the contract; names of the contracting parties;the identification number and the date of the marriage contract.
4.3. How and by whom can the information in the register be accessed?
The Real estate cadaster is public and may be consulted by any interested party.
4.4. What are the legal effects of registration (validity, opposability)?
The legal validity of the marriage/pre-marriage contract does not require its entry in the register. However, by its registration the contract has been made public and no other third party (i.e. buyer of such property or creditor) could deny its existence.
5 - What are the consequences of divorce/separation?
5.1. How is the property (rights in rem) divided?
First option is agreement on the division of joint property. Furthermore, if spouses want to divorce by agreement such divorce agreement must include a written agreement on the division of joint property (Article 40 of the Serbian Family law).
If spouses cannot reach an agreement on the division of joint property, the division of joint property is made by a court (court division). The Serbian Family law has a legal presumption that the shares of both spouses in the joint property are equal. Of course , there is legal possibility for both spouses to prove his/her eventual larger share in acquiring joint property which , according to Law, depends on his/her realized income, household activities, care of the children, care of the property, and other circumstances significant for the preservation or increase in the value of joint property.
5.2. Who is liable for existing debts after the divorce/separation?
The same rules as rules concerning debts incurred during the marriage are applied (see 2.6).
5.3. Does one spouse have a claim to an equalisation payment (balancing payment)?
According to article 187 of the Serbian Family law the spouse who has settled a joint obligation from his/her separate property has the right to reimburse from the other spouse in proportion to his/her share in their joint property.
6 - What are the consequences of death?
After the death of one spouse the surviving spouse may demand a division of joint property during the course of the inheritance procedure carried out before a court or a notary.
Upon the eventual division of joint property, a surviving spouse shall inherit a share of the deceased’s property according to the rules on orders of succession. The surviving spouse inherits in first or second order of succession. In the first order of succession, the surviving spouse inherits together with the children of the deceased with the inheritance divided into equal shares. If the deceased did not have descendants, his/her spouse inherits in the second order of succession along with the deceased’s parents and receives half of the inheritance.
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?
The Serbian Family law regulates a non-marital cohabitation as a long-term relationship, between man and a woman, providing that there are no legal obstacles to their marriage.
The property regime for cohabiting couple is equivalent to the property regime for spouses, that is, the same rules as for married couples are applied with the exception of right to inhertiance (which is reserved only for spouses).
At this moment there is no registration possible for cohabiting partners in Serbia. As a result it is very hard to determine when a relationship becomes long-term, which makes entering into formal agrement which will regulate the joint property of cohabiting partners strongly recommendable.
9 - Which is the competent authority to turn to in cases of disputes and other legal issues?
There is an exclusive jurisdiction of the Serbian courts for disputes over matrimonial property if such property relates to immovable property located on the territory of the Republic of Serbia. Also, spouses may agree on the jurisdiction of Serbian courts if at least one of them is a Serbian national.
Apart from exclusive and agreed competence, and in accordance with Private International Law Act of the Republic of Serbia, Serbian courts have international jurisdiction for disputes over matrimonial property in following cases:
a) if the defendant has his/her habitual residence in the Republic of Serbia;
b) if a defendant does not have his/her habitual residence in the Republic of Serbia there is a jurisdiction of Serbian courts if a plaintiff has his/her habitual or temporary residence in Serbia at the time of undertaking legal action;
If the majority of the matrimonial property is located in the Republic of Serbia, and the rest is located abroad, the Serbian court can decide on the property that is located abroad only if it decides on the property located in the Republic of Serbia and providing that the defendant agrees to this.
Spouses could agree on the jurisdiction of a foreign court but only if one of spouses is a foreign national and if it is not a case in which Serbian courts are exclusively competent. That makes the foreign courts jurisdiction applicable only for movable property.