Understanding concepts such as marital property, separate property, spousal consent, and the role of a marital agreement is crucial for avoiding lengthy court disputes and unexpected financial obstacles.
Below, we provide a detailed guide covering the legal framework, practical examples, and advice on how to protect your property rights.
1. What constitutes marital property versus separate property?
According to the Family Act (Official Gazette Nos. 103/15, 98/19, 47/20, 49/23, 156/23), the property of spouses is divided into two basic categories: marital property and separate property.
Marital Property
Marital property is property acquired by spouses through their work during the marriage or property derived from such assets.
Key characteristics of marital property:
• Presumption of equal shares: The law stipulates that spouses are co-owners in equal shares (50:50), unless otherwise agreed upon in a marital agreement.
• Rights regardless of land registry entry: Even if only one spouse is listed in the land registry (title deed), real estate purchased through work during the marriage legally belongs to both spouses in equal shares. • Income and savings: Marital property includes salaries, savings generated through work, income from renting out real estate, investment returns, and even winnings from games of chance obtained during the marriage.
Separate property
Separate property comprises assets that do not fall under the regime of joint acquisition:
• Property acquired before marriage: All real estate and financial assets owned by an individual prior to entering into marriage.
• Inheritance and gifts: Real estate or money received through inheritance or as a gift during the marriage (unless the donor explicitly gifted the assets to both spouses).
• Copyrights and personal rights: Copyrighted works and assets acquired on legal grounds independent of work performed within the marital union.
2. When is real estate NOT marital property?
Distinguishing between separate property and marital property often creates uncertainty in practice. Real estate is not considered marital property in the following cases:
1. Purchase using separate funds (*surrogatum*): If real estate is purchased during the marriage but exclusively with funds obtained from the sale of property a spouse owned prior to the marriage or acquired through inheritance or gift, such real estate remains separate property.
2. Inherited or gifted real estate: Regardless of the fact that it was acquired during the marriage, a house or apartment that is inherited or received as a gift is the direct separate property of the recipient. 3. Increasing the value of separate property through investment: If one spouse owns a house from before the marriage, and joint funds are invested in it during the marriage (e.g., for renovation or an extension), the property itself does not automatically become marital property. However, the other spouse has the right to a claim under the law of obligations (reimbursement of half the invested funds) or, in cases of major construction work that alters the property's identity, the right to establish a co-ownership share.
3. When is the spouse's signature (consent) required?
For any disposition of real estate subject to the marital property regime—whether involving sale, gifting, exchange, or mortgaging—the validity of the legal transaction is a crucial issue.
Extraordinary transactions and written consent
Under the Family Act, transactions exceeding the scope of ordinary management (so-called extraordinary transactions) require either joint action or the written consent of the other spouse, with the signature notarized by a public notary.
These transactions include:
• Sale or any other alienation of real estate.
• Establishing a mortgage or lien to secure a loan.
• Leasing or renting out the property for a period exceeding one year.
• Major construction work, extensions, and renovations.
Why is consent necessary even if the other spouse is not listed in the Land Registry? If only one spouse is listed in the land registry, a buyer or bank can secure their contractual position only by obtaining the notarized consent of the other spouse. Otherwise, the spouse who did not provide consent has the right to challenge the sales contract or the lien in court, thereby putting both the buyer and the bank at risk.
For this reason, reputable real estate agencies, banks, and notaries regularly require a written statement or consent from the spouse before finalizing any sale.
If you are selling a property, feel free to contact us for a free consultation at 091 790 0020. The RESIDENT Real Estate agency is at your disposal to assist with all legal and practical steps of the sales process.
4. Loans and debts: How is a housing loan treated?
Purchasing real estate via a loan is one of the most common housing-related issues for married couples.
• Obligation of both spouses: A loan taken out to address the family's housing needs is considered a joint and several obligation of both spouses. Even if only one spouse is the formal borrower on record with the bank, it remains an obligation for which both are liable.
• Divorce and the loan: Loan repayment does not automatically cease upon divorce. If one spouse continues to pay the remaining installments for a property that constitutes marital property, they have the right to claim reimbursement from the other spouse for half of the amounts paid.
5. Non-marital unions and real estate
In the Croatian legal system, a non-marital union is treated exactly the same as a marriage regarding property rights, provided it meets the statutory requirements:
• A duration of at least three years, or
• A shorter duration if a child was born to the couple during the union.
Real estate acquired through work during the non-marital union constitutes property acquired during the union and is divided according to the same rules as marital property (in equal 50:50 shares). The main difference is evidentiary in nature—in the event of a dispute, the existence and duration of the non-marital union must be proven in court. 6. The Marital Agreement (Prenuptial Agreement) as the Best Preventive Solution
Although marital agreements are sometimes viewed with a degree of reservation by the public, they represent the most effective instrument for ensuring legal certainty for both partners.
Through a marital agreement, spouses can regulate in detail the property-related aspects of their existing or future assets:
• They can agree on different ownership ratios for real estate (e.g., 70:30 in favor of the partner investing more of their own funds).
• They can explicitly define which assets remain separate property and which become marital property.
• The marital agreement must be concluded in writing and certified by a notary public or formally attested (solemnized).
Frequently Asked Questions (FAQ)
1. What is the difference between marital property and separate property?
Marital property consists of assets acquired through work during the marriage (shared in equal 50:50 shares). Separate property consists of assets brought into the marriage or acquired gratuitously (via gift or inheritance).
2. Is a house received as a gift or inheritance during the marriage considered marital property?
No. Inherited or gifted property always constitutes the recipient's separate property, unless the donor explicitly gifted it to both spouses.
3. What if only one spouse is registered in the land registry?
Registration in the land registry does not alter the legal status of the marital property. If a property was purchased using income earned during the marriage, the other spouse is a co-owner (even if not listed in the land registry) with a one-half share; consequently, their signature or consent is required for any sale or encumbrance of the property.
4. Is an apartment purchased on credit during the marriage considered marital property?
Yes. An apartment purchased on credit during the marriage constitutes marital property, while the obligation to repay the loan represents a joint (and several) liability of both spouses.
Conclusion
Matters concerning marital property and real estate require a timely, informed approach, transparent communication, and proper documentation. Whether you are buying an apartment, planning to sell a family home, or wish to clearly define your property arrangements through a marital agreement, consulting with real estate experts and legal advisors is the best step toward a secure and worry-free future.
*Disclaimer: The information in this article is for informational purposes only. Always consult a professional before making decisions. If you find any errors in the article, please contact us at info@resident.hr.*