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Separation of property after the dissolution of marriage

26.02.2019
From time to time people are interested in the possibility of separation property after the dissolution of the marriage.
Some are convinced that it is possible to separate the property of the spouses only until the marriage is dissolved or together with the dissolution of the marriage (“Otherwise they will not divorce us”!), others express the opinion that there is nothing terrible if you forgot to separate some property before the divorce, saying, the question could be solved later.
Let us try to figure out what is said about this in the law and judicial practice.
 
The main legal act regulating property relations between spouses in the Republic of Latvia is the Civil Law of the Republic of Latvia (Civillikums), and the procedural law governing the procedure for resolving civil law disputes in the courts of the Republic of Latvia, is the Civil Procedure Law of the Republic of Latvia (Civilprocessesa likums).
 
According to Article 77 of the Civil Law of the Republic of Latvia:
 
“A court shall not dissolve a marriage if spouses have not agreed on the custody, access rights of the minor child born in the marriage, maintenance for the child, the division of common property or the relevant claims have not been resolved prior to the divorce and are not raised together with the request for the divorce. A notary shall not dissolve a marriage if spouses have not certified that the marriage has broken down and have not agreed on the custody, access rights of the minor child born in the marriage, maintenance for the child and the division of common property”.
 
According to clause 6 of part one of Article 238 of the Civil Procedure Law of the Republic of Latvia:
 
“In a case regarding divorce or annulment of marriage claims arising from family legal relationships shall be tried concurrently. Such claims shall be disputes regarding division of the property of spouses (also if it affects third persons)”.
 
At first glance, from the above norms it could be concluded that separation of the joint property of the spouses is possible only at the same time as the divorce suit (in case of divorce through the notary, simultaneously with the application to the notary for the dissolution of the marriage). Indeed, before dissolving the marriage, the court and the notary must make sure that all the issues arising from family relations between the spouses are settled (resolved) and disputes, including the division of joint property, do not exist. This is one of the conditions for the dissolution of the marriage and without it a divorce is not possible.
 
However, back in 2007, the Supreme Court of the Republic of Latvia summarized the court practice that arises from the property relations of the spouses and whether it is possible to file a lawsuit on the division of the joint property of the spouses after the dissolution of the marriage, if there are no disputes on division of property, the Senate of the Supreme Court of the Republic of Latvia pointed out the following:
 
“As it can be seen from court practice, such claims are filed, and there is no reason to claim that this would be impossible, because one should take into account - if, by dissolving the marriage, there was no dispute over the division of property, then such a dispute may arise later. In addition, Article 238 of the Civil Procedure Law does not establish a ban on filing a lawsuit later. This article is rather regarded as an indication to the court that it is impossible to refuse to accept a divorce lawsuit if there is also a requirement to divide the joint property of the spouses. At the same time, it is possible that the parties entered into an agreement on the division of joint property, which is also indicated in the lawsuit, but during the consideration of the divorce case, despite the existence of a valid agreement, the second spouse requires the division of joint property”. (see Latvijas Republikas Augstākās tiesas Senāta Civillietu departamenta tiesu prakses apkopojums „Tiesību normu piemērošana laulāto mantiskajās attiecībās”, 2007.gads, page 6-7).
 
Based on the above, it can be concluded that the applicable laws and regulations in the Republic of Latvia and the existing court practice allow filing a lawsuit on the division of the joint property of the spouses after the dissolution of the marriage and there is no reason to assert that this would be impossible.
/ Dmitrijs Sustovs, Head of the Litigation department of the Law Firm INLAT PLUS /