The provisions of the Family Code require that, upon disposal of a family home that is the personal property of one of the spouses, the consent of the other spouse be obtained. This requirement protects the interests of the minor children and of the whole family. Among the transactions covered by the disposal of property are the sale, exchange and gift, as well as the creation of a mortgage over that same property.
Definition of the family home
A „family home“ is the property in which the spouses and their minor children live. It comprises the living and service premises intended to meet the household needs of the family. The family home need not necessarily be a flat. It may also be a villa, provided that it is fit for habitation throughout the year.
The need for the consent of the non-owner spouse
The consent of the non-owner spouse is required only if the spouses do not own another dwelling that is either common property or the personal property of each of them. Even where the spouses are separated and do not cohabit, the law again requires the consent of the non-owner spouse.
Upon disposal of a family home that is the personal property of one spouse, the consent of the non-owner spouse is also required where the property relations between the spouses are governed by a regime of separation of property. If a marriage contract has been concluded and the spouses have not expressly excluded the application of Article 26 of the Family Code, the consent of the non-owner spouse will again be necessary.
Form of the consent
The Family Code does not lay down any requirements as to the form in which this consent is to be given. It may be given orally or in writing by the non-owner spouse. In order to avoid disputes, it is common practice for the non-owner spouse to sign a declaration under Article 26 of the Family Code. In the declaration, the non-owner spouse confirms his or her consent to the disposal of the family home or, as the case may be, declares that the property does not constitute a family home. It is recommended that this declaration be notarised on the day of concluding the disposal transaction. The certification may also be made earlier, but in that case the non-owner spouse has the right to withdraw his or her consent, which creates a risk for the person acquiring the property.
Absence of consent and authorisation by the court
Where the non-owner spouse refuses to give consent, the other spouse has the right to seek authorisation from the district court. The court may grant authorisation if it finds that the transaction will not harm the interests of the minor children and the family.
Invalidity of the transaction in the absence of consent
A transaction for the disposal of a family home that is the personal property of one spouse, concluded without the consent of the other spouse and without authorisation by the district court, is relatively invalid as against the non-owner spouse. It remains valid between the persons who concluded it, but produces no legal effect in respect of the non-owner spouse. He or she may challenge the transaction before the courts by means of a claim for a declaration of its invalidity.
Time limit for bringing a claim for invalidity
The bringing of a claim for invalidity by the non-owner spouse is not subject to any time limit. Before the adoption of Interpretative Decision No. 5 of 29 December 2014 of the Supreme Court of Cassation, legal theory and case law set a period for challenge – six months from becoming aware and no later than three years from the conclusion of the transaction.
A claim for a declaration of invalidity under Article 26 of the Family Code may be brought up until the moment of dissolution of the marriage – whether by divorce or by the death of the spouse who owns the dwelling.
Possibility of validating the transaction
A transaction for the disposal of a family home may be validated by subsequent consent of the non-owner spouse. This consent must be given in writing and with notarial certification of both the signature and the content, made simultaneously.
In the event that you need legal advice or assistance in connection with the purchase and sale of real estate, contact us on tel.: 0887550706 or by e-mail: [email protected]
