How to divide matrimonial assets in a divorce ?

According to a survey carried out in 2017, more and more people are affected by this topic, given that one in five marriages ends in divorce in Romania. How can be common property divided in a smart, money and energy saving manner?

If the parties have not otherwise agreed upon within the framework of a marriage contract, the material relationships between the spouses are governed by the rules of the legal community of property. Accordingly, all goods acquired by the spouses – either together or separately – during their marriage are in their undivided common property.

In lack of evidence to the contrary, the presumption is that the spouses contributed equally to the acquisition of their common property, therefore the assets acquired during their marriage are divided equally between them and the obligations and debts undertaken during their marriage shall also be equally incumbent on them.

Common property is the main rule, but there are also some exceptions as they are in the spouses’ separate/own property: assets inherited or donated to the spouses during their marriage, assets for one’s own use or assets serving the exercise of a profession, property rights to which spouses are entitled to as creators of intellectual property, prizes, acknowledgments, scientific manuscripts, benefits for material or moral losses, insurance premiums, assets acquired upon the value of their own property and values replacing their own property, and the benefits resulting from their own property, respectively.

Terminating the community of property begins with determining the assets that are the object of division, which is followed by their evaluation and actual division. When evaluating property assets, their value at the time of the hearing shall be taken into consideration, not their acquisition price.

The matrimonial community of property may be terminated by agreement between the parties or by court decision.

Agreements concluded between the parties are the fastest, cheapest and most elegant form of property division. Agreements acknowledged by a notarial act may be concluded during the marriage or any time after the dissolution of marriage.

If there is no agreement, the division of common property is decided by a court of law. Property division applications may be submitted together with the application for divorce or subsequently, upon the dissolution of marriage. The division of common property by a court of law, however, is a very demanding and time consuming task. Pending on the evidence ruled (deeds, witnesses, expert opinions etc.), a court action may last for years. The parties have the possibility to conclude an agreement even after the initiation of a court action. In such cases, judges rule on the division of common property according to the parties’ will. When filing an application, claimants have to pay a stamp duty representing 3% of the value of assets that form the object of property division.

Division by way of agreement concluded through mediation is advantageous as in such cases only 50% of the legal stamp duty shall be paid!