How can spouses settle their property relations?
Property relations between spouses can be settled in three ways:
- statutory community regime (any property acquired by the spouses during the marriage as a result of a joint contribution becomes their joint/common property, irrespective of whose name it was acquired in);
- a legal separation regime (each spouse acquires the property for himself/herself during the marriage);
- a contractual regime.
Persons who entered into a civil marriage before 1 October 2009 also have the opportunity to settle their property relations by contract and to choose one of the three regimes. If they have not chosen any, the community regime will apply to them.
What can a marriage contract contain?
The marriage contract governs all or some of the property relations in connection with the conclusion of the marriage, during the marriage itself and upon its eventual dissolution. Personal relations cannot be settled by this contract.
Art. 38 of the Family Code contains an exemplary enumeration of the possible contents of the contract – the rights of the parties to the property acquired during the marriage as well as one owned by the spouses before the marriage, the participation of the parties in the expenses and obligations, the monetary support between the spouses as well as that of the children. The possibility is given to settle other property relations – such may be the prerequisites for the annulment of gifts made in connection with the marriage.
For the relations not settled in the marriage contract, the statutory community regime applies – everything acquired during the marriage by joint contribution is matrimonial property.
Conditions for the validity of the marriage contract:
- A marriage contract may be concluded by persons who are either already married or intend to marry. Under Bulgarian law, this must be a man and a woman.
- Persons of legal capacity – adults who are not placed under guardianship. A minor (up to 14 years of age) may not enter into such a contract, but an underaged (up to 18 years of age) may, provided he or she has already entered into a civil marriage.
- Only property relations between the spouses may be the subject of a marriage contract.
- The contract must be concluded in person by the parties appearing before a notary public. It is not allowed to conclude the contract by proxy.
The marriage contract is becoming more and more popular every year – this is proved by the number of registered contractual regimes in the Register of Property Relations of the Spouses.
Actions necessary for the conclusion of a marriage contract:
- The marriage contract shall be concluded in person by the spouses in writing with notarial certification of the contents and signatures. In the event of a civil marriage after the conclusion of a marriage contract, the spouses are obliged to submit to the notary before whom they concluded the marriage contract a copy of the civil marriage certificate issued by the municipal administration.
- The marriage contract may transfer a right of ownership, as well as establish or transfer another right in rem over immovable property. The contract may then act as a property transfer transaction, but the form remains the same and no notarial deed is required. In these cases, notarisation by a notary in whose area the property is located is necessary.
- The notary must certify the date and the content of the marriage contract, enter it in the notarial books and issue a Certificate which will indicate the date of the contract, the registration number in the notarial books and the number under which the notary is registered in the Chamber of Notaries. A notarial fee shall be charged for these acts of the notary, the amount of which shall be determined by the existence of a transfer of title or the establishment or transfer of another property right.
- Marriage contracts are registered in the Register of Property Relations of the Spouses at the Registry Agency. A prerequisite for this is the presentation before the civil registrar of the municipality where the marriage was concluded of a written declaration by both spouses of their choice of a contractual regime to regulate their property relations, the notary’s certificate and two certified copies of the marriage contract itself.
Marriage contracts which transfer or establish property rights over immovable property must be entered into the Property Register of the Registry Agency.
Before it is entered into the register, it is noted to the civil marriage certificate. In view of the subject matter, entry into other registers may also be required – in the case of transfer of rights over aircrafts, ships, commercial enterprises, industrial property rights, etc.
Effect of the marriage contract:
If the marriage agreement is concluded before the marriage, it will enter into force upon the conclusion of the civil marriage. If the marriage contract is concluded during the marriage, this must be noted in the civil marriage certificate and will take effect from the day of the conclusion of the contract or any other date specified therein (whether future or past).
The marriage contract may be amended subject to compliance with the form of validity – in writing with notarial certification of the content and signatures. The parties may give retroactive effect to the amendments, provided that the interests of third parties are not affected.
A marriage contract is a useful legal instrument through which spouses can settle their property relations, and most often in practice this agreement is used to save fees and taxes related to the ongoing or subsequent transfer of property.