Matrimonial Law
The attorneys of our office work as experts in issues relating to Matrimonial Law. We act as executors in the distribution of matrimonial assets or assist one of the spouses. We also assist in disputes relating to family provision, care of a child and/or visiting rights. We also draft prenuptial agreements by the wishes of the customer and give legal advice in all problems arising from the marriage under the law of property.
About the ownership in marriage
When a person enters into matrimony it has no straight influence on the ownership relations of the spouses. Both of the spouses still own their property alone. Also the liability for debts stays to that spouse who is the debtor.
After the marriage is contracted the marital right to property comes to force unless otherwise is agreed.
About the marital right to property
When the marriage ends to a divorce or to the death of the other spouse the community of matrimonial property has to be dissolved by the distribution of matrimonial assets and this is when the marital right to property also comes relevant.
The marital right to property is an expectancy right and by the principal rule the spouse has the right to half of the matrimonial property in the distribution of the matrimonial assets in a divorce. In the distribution of the matrimonial assets the spouse who has more property has to pay adjusting payment to the other spouse.
If the marriage ends to the death of the other spouse the remaining spouse has the right to refuse from the adjusting payment to the heirs of the first deceased spouse.
About divorce
A petition for divorce is filed with an application in the local court of either spouse.
The application does not have to be justified and after a reconsideration period of six months the local court sentences the spouses into divorce. Questions about joint custody of children, visiting rights and family provisions can be handled with the divorce case or afterwards in a separate trial.
About the distribution if matrimonial assets
The community of matrimonial property has to be dissolved by the distribution of matrimonial assets. An agreement can be drafted and signed if the both of the spouses (in case of divorce), or the living spouse and the heirs of the estate (in case of death), can achieve an understanding about the contents of the distribution of the matrimonial assets. This agreement has to be drafted in a specified form and signed by every party and two witnesses.
If a mutual understanding cannot be achieved can either spouse seek for appointing of an executor from the local court in order to get the matrimonial assets distributed. If the marriage has ended because the other spouse has died can also the heirs seek for the appointing of an executor in order to get the estate distributed. The executor is bind by the same rules that apply to the distribution of an estate (death nest).
About prenuptial agreement
The marital right to the property between the spouses can be removed by concluding a prenuptial agreement. Prenuptial agreement is contracted in a specified form and if this form is not followed the agreement is invalid. With a prenuptial agreement the spouses can limit the marital right as follows:
- Total exclusion of the marital right. The marital right to property is totally removed which means that neither of the spouses have no right to any property belonging to the other spouse.
- Partial exclusion of the marital right. The marital right to property is removed partially which means that neither of the spouses have no right to certain property belonging to the other spouse.
- Unilateral prenuptial agreement which means that the other spouse has no marital right to any or certain property belonging to the other spouse.
By the preliminary ruling 2000:100 made by the Supreme Court a prenuptial agreement can also be concluded only in case of divorce. In other words the prenuptial agreement which limits the marital right to property is applied only in a case of divorce which means that the contract restricting the marital right is valid only in the case of divorce, not in the case of death.
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