THE ASSETS CONSTITUTING THE COMMUNITY PROPERTY OF SPOUSES UNDER ALBANIAN LEGISLATION AND PROBLEMS OF JUDICIAL PRACTICE

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THE ASSETS CONSTITUTING THE COMMUNITY PROPERTY OF SPOUSES UNDER ALBANIAN LEGISLATION AND PROBLEMS OF JUDICIAL PRACTICE

Journal Title: Knowledge International Journal - Year 2018, Vol 26, Issue 1

Abstract

For the first time since the Civil Code of 1929, the Family Code of 2003 recognized the spouses the right to enter into a marriage contract. Thereupon, only in the absence of a contract between spouses for the implementation of another property regime, the legal community regime provided by the provisions of the Family Code will apply. The regime of the legal community implies common property assets, where spouses are inseparable owners, a fact that dictates their inability to freely and independently dispose of the parts belonging to this community. In the absence of a marriage contract, the community property is established automatically with the celebration of marriage. The legal community regime, through equal participation of spouses at 50% on the assets acquired during the marriage, aims at implementing a complete community of life in the property plan as well. The spouse's legal union represents a sui generis form of co-ownership, which is subject to a special legal regime and has a special status because it results from the marriage bond. If they are under the community property regime, the spouses, when married, become co-owners of items acquired by one or the other, through different ways of acquiring ownership, provided by the Civil Code. On items earned by each spouse or both together during marriage, they have a right of indivisible property, which gives them the common opportunity to exercise the right of possession, use and disposition of these items. The community property regime establishes the equality of property between the spouses through the realization of the equal sharing of the common objects. Thereby, the lawmaker appreciates and recognizes the contribution made by the spouse who deals with raising and educating the children or maintaining and carrying out the household activity, thus not directly contributing to monetary assets in the common property. The law equates the financial contribution of a spouse to the non-financial contribution of the other spouse, usually the wife, who takes cares of the children and is unemployed. Unlike previous legislation, the current Family Code does not recognize spouses the opportunity to prove they have made a greater contribution and consequently the opportunity to benefit most from the division of common property. The legal community regime has no universal character and it is not mandatory, as spouses can choose another regime, such as the contractor regime. Also in the community property are not included items acquired by spouses before the marriage bond, as well as a category of items obtained during marriage, which preserve their personal character. The composition of the legal community is largely determined by Articles 74 and 77, but also by some other intermediate Articles of the Family Code. From the analysis of these provisions, it is clear that there are: assets immediately entering the community, or the so-called current community (Article 74 / a, 74 / ç); assets that enter into the community only if they remain unconsumed until its end, or the future or eventual community (article 74 / b, 74 / c, 75); wealth that is not part of the community, or community of spouses' personal belongings (Article 77).

Authors and Affiliations

Albana Metaj-Stojanova

Keywords

EP ID EP50080
DOI -
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