The term “joint property of spouses” or “marital property” refers to all movable and immovable property that spouses or common-law partners have acquired through work during the duration of their marital or non-marital life together. Additionally, joint property includes property acquired through gambling during the period of marital or non-marital cohabitation. This is a rebuttable presumption, as such property will not be considered joint if the spouse who earned the winnings proves that they used their separate property to fund the gambling. Furthermore, property acquired by utilizing intellectual property rights during the marriage or non-marital cohabitation also constitutes marital property.
These legal provisions are not a closed list, as judicial practice has formed views according to which many other forms of income are considered joint property. For example: gifts intended for both spouses, contributions for the care of children, household management, and property maintenance, among others.
In contrast to joint property, there is separate property, which refers to all property that each spouse owned prior to marriage, as well as any property acquired during the marriage or non-marital partnership by inheritance or gift, income from separate property, and property that belongs to each spouse after the division of joint property.
Spouses or common-law partners manage and dispose of joint property jointly and by agreement. Each spouse has an undetermined share in the joint property, and it is presumed by law that their shares are equal. However, this is a rebuttable presumption because a spouse who believes their contribution to the increase of joint property is greater than that of the other spouse must prove this in a legal process. If they fail to do so, it will be assumed that the shares are equal. Once the shares in the joint property are determined, the marital property division has occurred.
The division of marital property is possible both during the marriage and after a divorce, although in practice, it is more commonly carried out after the marriage ends. Depending on the method of division, there are two types: amicable or out-of-court division and court-ordered division. Amicable division of joint property involves the conclusion of a Joint Property Division Agreement, which must be concluded and solemnized by a public notary, and it can be done during the marriage or after its dissolution.
If spouses cannot agree on what constitutes joint property or on the size of their shares, no agreement can be reached, and the division must proceed through a court process by filing a lawsuit for the division of joint property (court division). This can be initiated by the spouses, the heirs of a deceased spouse, or creditors of a spouse whose claims could not be satisfied from their separate property. As already mentioned, there is a rebuttable presumption that the shares in the joint property are equal. The spouse claiming a larger share must prove it. The size of the share depends not only on the amount of income earned but also on factors such as managing household affairs, caring for children and property, and other circumstances important for maintaining or increasing the value of the joint property.
Certain items from joint property are pre-designated by law to belong to specific individuals. For example, items intended for personal use by one spouse belong to that spouse without affecting their share, as long as their value is not disproportionately large compared to the total value of the joint property and the personal use items of the other spouse. Even if their value is disproportionately large, they still belong to the respective spouse, but in that case, their value will be considered when determining their share. If the spouses have children, and only one of them is granted sole parental rights, that parent is entitled to the items from joint property meant for the children, without affecting their share. In cases of joint parental rights, joint ownership of these items is established. Similarly, items intended for one spouse’s profession or craft belong to them exclusively, with their value being included in their share. The same applies to household items that one spouse has been in possession of for at least three years after the end of the cohabitation.
The Family Law of the Republic of Serbia allows for the conclusion of a Management and Disposal Agreement for joint property, giving spouses the opportunity to regulate matters of management and disposal of joint property without dividing it. This agreement must be concluded in the form of a public notary-certified (solemnized) document.
All of the above regarding the joint property of spouses represents the legal regime. This legal regime can be excluded by concluding a prenuptial agreement ( prenup ). Through this agreement , spouses can regulate their property relations regarding existing and future property in a manner different from what is prescribed by law, and it must be concluded in the form of a public notary-certified (solemnized) document.
The identification of joint property is also important in terms of the spouses’ liability for obligations to third parties. For obligations that, by law, bind both spouses, as well as for obligations assumed to meet the needs of their joint life, spouses are jointly and severally liable with both their joint and separate property. When it comes to the personal obligations of one spouse, they are liable with their separate property and their share of the joint property.