In connection with the legal regulation of matrimonial property (hereinafter “MP”), two types of contracts come into consideration. These may be either contracts concerning the scope of MP or contracts regulating the management of assets and liabilities that form part of MP.
Contracts Modifying the Statutory Scope of MP
Unless a contract defining the scope of MP differently from the law is concluded, it applies, with certain exceptions, that matrimonial property comprises assets acquired by one of the spouses or by both jointly during the marriage and liabilities that arose to one of the spouses or to both spouses jointly during the marriage. Statutory exceptions to this rule are set out in Section 143(1) of the Civil Code (hereinafter “CC”). According to the provision of Section 143(1)(a) CC, matrimonial property does not include assets acquired during the marriage by inheritance or gift, assets acquired by one of the spouses in exchange for assets belonging to the exclusive ownership of that spouse, things serving by their nature the personal needs of only one of the spouses, and things issued under restitution regulations to one of the spouses in the case that this spouse owned the issued thing before entering into marriage or to whom the thing was issued as the legal successor of the original owner. Regarding liabilities, the law then provides that liabilities arising during the marriage do not form part of MP if they relate exclusively to assets belonging exclusively to one of the spouses, and liabilities the extent of which exceeds the measure appropriate to the spouses’ property circumstances, which one of them assumed without the consent of the other (Section 143(1)(b) CC).
Spouses may contractually extend or reduce the statutory scope of MP or reserve its creation for the day of termination of the marriage (at the same moment their MP will also cease). The contract must be concluded in the form of a notarial deed. In the contract, spouses may regulate not only the scope of assets and liabilities that will become part of MP only in the future, but, as the law expressly provides, also the scope of assets and liabilities that already form MP. The contract need not concern all of MP but may regulate the legal regime of only individual property values or liabilities.
MP may be extended practically without limitation. In a contract on the extension of MP, it is therefore possible to stipulate that all assets of the spouses will form part of MP and that neither of the spouses will have their exclusive property. Another possible example of extending MP may be, for instance, a formulation that MP will also include things acquired by inheritance or gift, etc.
Regarding the reduction of MP, it applies that spouses cannot abolish MP entirely. They are limited by the scope of assets that constitute the usual furnishings of their common household. The same applies if spouses reserve the creation of MP for the day of termination of the marriage. In no case is it possible to establish a generally applicable rule regarding what still constitutes the usual furnishings of a common household and what does not. The content of the concept of usual furnishings of a common household will differ depending on the standard of living and property circumstances of the spouses.
If any of the aforementioned agreements concerns immovable property registered in the Land Registry, such an agreement shall take effect upon entry in the Land Registry.
With effect from 1 August 1998, the Civil Code expressly permits the conclusion of a so-called “pre-marital contract”, in which future spouses would, even before entering into marriage, regulate their property relations for the duration of their marriage differently from the legal regulation contained in the Civil Code. Such an agreement between a man and a woman who intend to enter into marriage shall, of course, take effect only on the day of entering into marriage.
I further draw attention to the fact that spouses may invoke the existence of a contract on the reduction or extension of MP or on its creation only as of the day of termination of the marriage against third persons only if they prove that the content of the contract is known to the third person. If the third person has not been informed of the existence and content of the contract, the relationship with that person shall proceed as if no contract on regulating the scope of MP had been concluded. The same applies to a pre-marital contract.
Contracts Modifying Statutory Rules on the Management of MP
As a basic rule, it applies that assets forming MP are used and maintained by both spouses jointly. In relation to third persons, it is necessary to distinguish two methods of decision-making concerning the disposal of common property falling within MP, namely ordinary management of assets falling within MP and other matters outside this ordinary management. Legal acts concerning the ordinary management of assets falling within MP may be performed by each of the spouses. Ordinary management means handling regularly recurring matters that can be considered ordinary management of common property. This may include, for example, regular purchases, ordering routine repairs in a flat, paying regular payments, etc. In other matters – outside ordinary management – the consent of both spouses is required; otherwise, the legal act is invalid. This is relative invalidity, which means that such a legal act is considered valid unless the person affected by such an act invokes the invalidity of the legal act. The right to invoke the relative invalidity of a legal act is subject to limitation – it may be invoked only within a three-year limitation period, which runs from the day when this right could be exercised for the first time. Other matters outside the ordinary management of MP can in any case be considered to include the purchase of immovable property. Furthermore, depending on the property circumstances in the family, this could involve, for example, the purchase of a motor vehicle or another more costly investment. It can be generalised that legal acts of spouses that establish longer-term rights and obligations are not considered ordinary management of assets. Where a valid legal act concerning MP is involved, both spouses are jointly and severally entitled and obliged. The management of MP is also addressed by the provision of Section 146 CC, which regulates the obligation of an entrepreneurial spouse to obtain the consent of the other spouse for the first use of assets from MP for business purposes. For further legal acts related to business activities, the consent of the other spouse is no longer required.
According to the provision of Section 147 CC, spouses may regulate the management of matrimonial property differently. Just as contracts regulating the scope of assets falling within MP, this contract must also be concluded in the form of a notarial deed, under sanction of absolute invalidity.
In this agreement, spouses may determine, for example:
A contract on different regulation of the management of assets falling within MP may also be concluded as a so-called “pre-marital contract”. It may therefore be concluded by a man and a woman who intend to enter into marriage, with effect from the entering into marriage.
Spouses may also invoke the existence of a contract pursuant to Section 147 CC against third persons only if they prove that the content of the contract is known to the third person.
Reduction of the Scope of MP by Court Decision
If one of the spouses wishes to reduce the scope of MP and the other spouse is not willing to conclude an agreement, the former may seek the reduction of MP by court decision. If there are serious grounds therefor, the court may, on the application of one of the spouses, reduce MP to things constituting the usual furnishings of the common household. A serious ground may be considered, for example, such conduct of one of the spouses by which the economic situation in the family is endangered, their alcoholism, drug use, playing gambling games, etc. A serious ground for a court decision may also be the fact that the spouses do not live together and have in fact been managing separately for a long time.
Protection of the common property of spouses is more pronounced when one of the spouses obtains authorisation for business activity or becomes an unlimitedly liable partner in a trading company. If, in this case, either of the spouses so proposes, the court must reduce the MP to things constituting the usual furnishings of the common household.
This text was translated from Czech to English using an AI translator.