What is the action for participation in marital acquisitions?
Within the framework of a marriage, it often happens that the accumulation of property by one spouse comes at the expense of the other spouse, and for this reason the State has chosen to protect the economically weaker and disadvantaged spouse. For example, a mother who raised her children for twenty years as a homemaker in the family residence, while her husband was free to work and build up his estate, is unquestionably entitled to claim from her husband a share in the property he acquired during the marriage.
What are the conditions for an action for participation in marital acquisitions?
For this particular lawsuit, the following conditions must be met:
- Dissolution (divorce) of the marriage or the completion of three years of separation between the spouses.
- An increase in the property of the liable spouse during the period between the celebration of the marriage and its dissolution by divorce.
- The existence of a contribution, in any manner, by one spouse to the increase in the property of the other.
- The existence of a causal link between the contribution of the entitled spouse and the increase in the property of the liable spouse.
- The law has introduced a rebuttable presumption regarding the extent of the entitled spouse’s contribution to the property of the liable spouse, set at 1/3 of the increase. The contribution of one spouse is therefore presumed to be 1/3, unless a greater, lesser, or no contribution is proven.
- The competent court for hearing the claim for participation in marital acquisitions is the Single-Member Court of First Instance.
- The claim for participation in marital acquisitions is subject to a two-year statute of limitations running from the dissolution of the marriage.
- Any prior agreement between the spouses to waive the right to participation in marital acquisitions is prohibited, unless it was concluded in the context of a consensual divorce before a notary public and forms part of the mutual agreement of the parties.
- It is permitted by law to join in a single (1) pleading the claim for participation in marital acquisitions with the claim for spousal maintenance due to the breakdown of cohabitation, in order to save time and money.
- The claim is, in principle, monetary, but the law also allows for the claimant to demand the delivery of specific assets in kind, where these form part of the increase in property.
- See also the article on Revocation of an Interim Measures Decision
- See also the article on Divorce
- See also the article on Relocation from the Family Home
- See also the article on Joint Custody of a Child
- See also the article on Child Maintenance – Methods of Enforcement
- See also the article on Custody and Child Abduction
- See also the article on Change of City of Residence for Minor Children
- See also the article on Surrogate Mother – Court Authorisation
FREQUENTLY ASKED QUESTIONS ON PARTICIPATION IN MARITAL ACQUISITIONS
1. What am I entitled to if my spouse acquired property during the marriage?
If, during the marriage, one spouse increased their property and the other contributed in any way to that increase, the entitled spouse has a claim for pecuniary compensation equal to the percentage of their contribution. The law establishes a rebuttable presumption that the contribution amounts to 1/3 of the increase, which may be rebutted upwards or downwards through evidence. The contribution need not be purely financial — domestic work, raising the children and supporting the spouse’s professional activity are also recognised. The amount of the claim depends on the extent of the increase in property and on the evidence substantiating the contribution.
2. When can I file an action for participation in marital acquisitions?
The action may be brought either after the marriage has been dissolved by a final and irrevocable divorce, or after three continuous years of separation between the spouses, without any need for a divorce decree to be issued. The three-year period is calculated from the moment cohabitation was interrupted with the intention of permanent breakdown. Importantly, the claim is subject to a two-year statute of limitations starting from the dissolution of the marriage, so the entitled spouse must act in good time. In the case of a consensual divorce, it is advisable not to waive the claim without prior legal advice, as the actual value of the increase in property is often underestimated.
3. How do I prove my contribution as a homemaker or mother?
The contribution of a spouse who devoted themselves to the household and the upbringing of the children is fully recognised by case law. It can be proven through witness testimony from relatives, friends and neighbours, photographs, evidence of the children’s educational activities, certificates from schools or doctors, as well as evidence showing that the other spouse was able to dedicate themselves uninterruptedly to their professional activity thanks to that support. In many cases, the court recognises a contribution even greater than 1/3, where it is shown that the entitled spouse forwent their own financial benefits for the sake of the family.
4. Which court hears the case and how long does it take?
The competent court is the Single-Member Court of First Instance of the place of residence of the respondent spouse, under the procedure for family disputes. The time required for a first-instance judgment generally ranges from 12 to 24 months, depending on the court’s caseload and the complexity of the property situation. In the event of an appeal, the final ruling may be delayed by a further 1 to 2 years. The action for participation in marital acquisitions may be joined in the same pleading with a claim for spousal maintenance due to the breakdown of cohabitation, saving time and court costs.
5. What documents do I need to substantiate my claim?
Documents are required that show the spouse’s property situation both at the celebration of the marriage and at its dissolution or upon completion of three years of separation. In particular, useful documents include the E1 and E9 tax forms for all years of the marriage, real estate title deeds, bank account statements, share portfolios, corporate shareholdings, vehicles, loan agreements, and any other element that demonstrates the increase. Evidence of the entitled spouse’s contribution is also required, such as deposits into joint accounts, remittances, joint purchase contracts, receipts for family expenses, and witnesses. The collection of such evidence may also be carried out by way of a prosecutor’s order or a request for the production of documents.
6. What is the role of the lawyer in such cases?
The lawyer first undertakes to map out the actual property situation of both spouses, identifies the acquired assets, calculates the increase and provides a realistic estimate of the value of the claim. The lawyer then drafts the lawsuit, organises the evidence of the contribution, and represents the client in court. In cases where the liable spouse attempts to conceal assets or transfer them to third parties, the lawyer files for interim measures of conservatory attachment or an action to set aside fraudulent dispositions. Our firm has long-standing experience in family law cases and handles spousal property disputes with discretion and effectiveness.