By Evangelia Petsa,
The claim to participate in the properties is registered in Article 1400 of the Civil Code. According to this:
“If the Marriage is dissolved or annulled and the property of one spouse has, after the Marriage has taken place, increased, the other spouse, since contributed in any way to this increase, is entitled to demand the return of the part of the increase which comes from his own contribution. It is assumed that this contribution amounts to one-third of the increase unless it proves greater or less or neither contribution.
The previous paragraph applies proportionally in the case of the separation of spouses that lasted more than three years.
In the increase of the property of the spouses, everything is not counted they acquired by donation, inheritance or bequest or by disposal of their acquisitions from these causes”.
The claim to participate in the acquisitions is culpable and personal. The beneficiary spouse alone, not his heirs or any successors, is protected, having the right to request the counterpart of his own personal contribution. So if the marriage is dissolved by death, the surviving spouse will continue to be protected for his personal contribution to the increase of the deceased spouse’s estate. That is he will have the right to participate in it and will be able to exercise it against his husband’s heirs. At the same time, as emphasized in the Advisory report of the Legislative Commission, the protective purpose of provision 1400 of the Civil Code requires us to accept that the provision contains a rule of compulsory law. Otherwise, the protection of the beneficiary spouse, that the distribution of the assets during the marriage, usually with his tolerance, was unfair to him, that is, as a rule, the economically weaker spouse, would be nullified.
Regarding the conditions, for the creation of the claim we mention that the first condition is that the property of one spouse has increased after the marriage took place. The increase should be taken in the broadest sense possible. It includes any financial benefit whether positive or negative. The whole of the property situation will be taken into account and not just a specific possession. The property benefit, after the marriage has taken place, will be concluded by comparing the property situation at two points in time, at the time of the marriage on the one hand and at the time when the claim is made on the other hand. Of course, in the property increase does not count what the spouse acquires from a donation, inheritance, or bequest.
The explanation is obvious since in these cases there is no contribution from the other spouse. Doubts have arisen about donations between spouses. According to the letter of 1400 paragraph 3 of the Civil Code, these are also not counted on the property increase. However, the opinion is also supported that the donation from the husband should be calculated, since there is, of course, a contribution from the donor husband and it would be unfair for him not to have a share in an acquisition that comes from him.
The second condition is that one spouse contributed in any way to the increase of the other spouse’s property. It will therefore be decided based on the specific circumstances, if the increase in the property is due to the work or property or any other means or capabilities of the beneficiary. Of course, only the contribution that is offered during the marriage matters, not the one that may have been offered before its performance or the one that is offered after its annulment. If one spouse has contributed to the increase of the other’s property but has also caused damage to the other spouse through his actions or omissions, the increase, and decrease will be taken into account to find the amount of the first condition of the claim, i.e. the final increase in the debtor’s property. However, it will not be taken into account, if the injured spouse covers his loss, e.g. with a claim for damages against the other.
A third condition is the causal link between contribution and increase. Furthermore, the claim arises if the marriage is dissolved, if the marriage is annulled, and if there is a separation of the spouses that lasted more than three years. Finally, a negative condition for the birth of the claim to participate in the acquisitions is that the spouses have not chosen the joint ownership system.
From a practical point of view, there is a need for the beneficiary of the claim to protect himself from the risk of insolvency of the debtor spouse, which can mainly appear in the form of hiding assets, liquidating them, and trying to frustrate the satisfaction of the claim. The Civil Code, therefore, provides, in order to deal with such and any other risks for the lender, two ways of protecting him: the possibility of obtaining a mortgage even before the birth of the claim and the right to provide security from the moment there is a dispute between the spouses. Conditions for the second case are that an action for divorce or annulment of the marriage has been brought, or that the action under article 1400 of the Civil Code has been brought by either of the spouses and that there is a well-founded fear that the claim under article 1400 of the Civil Code is at risk because of the behavior of the obligees.
However, while the legislator allows certain measures to be taken prior to the dissolution or annulment of the marriage, it does not provide anything for the time period from the start of the break-up of the cohabitation until the completion of the three-year period, when it is possible to bring an action for participation in the assets.
Finally, we point out that if the obligated spouse dies, his obligation from provision 1400 of the Civil Code passes to his heirs. Since the heirs include the husband, who has the claim, he also inherits part of the obligation from provision 1400 of the Civil Code, i.e. the obligation to himself. So in this part, the receivable is amortized due to confusion.
References
- Αστικός Κώδικας. ministryofjustice.gr. Available here
