Sporazum o deobi zajedničke imovine i ugovor o podeli zajedničke imovine – zaštita poverilaca i(li) sloboda raspolaganja supružnika

Abstract

In the area of property law, divorce has consequences not only for the spouses, children and members of the extended family, but also for some third parties – the spouse’s creditors. For the creditor, it is not the same whether one spouse will receive all the marital property, and the other spouse, who is a debtor in some relationship with the creditor, will not receive anything, which will prevent the creditor from collecting of the debtor’s spouse propriety. Creditors could seek to invalidate the agreement on the division of joint property due to the intention of the spouses to cheat the creditors in this way. Thus, Family Law does not provide any special type of creditor protection, but creditors can request potential protection based on the provisions of the Law on Obligations, which regulate the refutation of the debtor’s legal actions. The application of the institution of refutation of the debtor’s legal actions in the agreement on the division of joint property would not be possible in practice, which is also confirmed by the fact that there is still no judgment in domestic judicial practice that would refer to this issue. Acknowledgment of active legitimation to creditors can be done in the form of Paulian lawsuit, where it is required that the creditor has only a due claim, and it is not necessary for that claim to be determined by a legally binding and enforceable judgment. Another way of refutation of harmful agreements of the spouses by the creditor is to establish their nullity. Creditors who request the refutation of an agreement on the division of joint property, or contract on division of joint propriety will have the burden of proof to prove that an impermissible motive signifcantly infuenced the decision of one spouse or extra marital partner to conclude such an agreement and, if it is the other contracting party (spouse or extra marital partner) knew or should have known, the agreement will be void.