Division of common property of former spouses – between possibility left at the discretion of the co-spouses and obligation

Abstract

The division of joint property is an aspect of divorce in terms of property which, in the event of the omission of the limitation period established by the legislator, risks imposing on the former spouses the management of the joint property for the entire duration of their existence. In these circumstances, it is important that the interested parties are aware of this term and seek appropriate legal advice, in order not to lose the opportunity to claim their right to division. However, practice shows that often the parties, after the dissolution of the marriage, avoid resorting to division of property for various personal and financial reasons, while the legislator, by establishing a limitation period, forces the interested parties to an active approach in managing the division, without waiting for the expiration of the term and subsequent complications during the division. Thus, the purpose of this paper focuses on identifying alternative solutions to cases of omission of the prescription period required for the division of joint property after divorce, in order to avoid impunity for jointly using assets that have not been divided within the 3-year period from the divorce. On the other hand, it would be unfair to oblige the parties by law to resort to division within a certain period, but also to impose former spouses to use the jointly undivided assets after divorce, which is still not the most inspired decision. Under such conditions, we see ourselves obliged to intervene through research in order to identify optimal solutions that would favor both subjects who, in fact, had to act within a reasonable period to decide the fate of the assets after divorce.