Specific Community Property

According to the specific community property practice, the bulk of community property may include an “external” asset purchased by one of the partners prior to the marriage and/or an asset bestowed as a gift before and/or after the marriage, which is usually excluded from the distributable property.

Thus, for example, court rulings have found that, over the years, a spouse obtains rights to a residential apartment purchased and registered by the other spouse before the marriage and in which the couple resided throughout their marriage.

According to court rulings, recognition of specific community property for a residential apartment brought into the marriage by one of the spouses requires – beyond the cohabitation in marriage – “one more element” to prove the intention of community property for the said asset.  Specific community property of such an “external” asset may be manifested in promises and objective pretenses that generate reliance on the part of the unregistered spouse and rendering the registered spouse an estoppel.  Court rulings found that the weighting of such “one more element” required for proving the intention of specific community property should be reduced when related to a residential apartment compared to other assets.

Therefore, in order to protect an external asset, a property agreement should be prepared, in order to ensure maximum protection of any right to which the spouse is not entitled.