О ЗАЈЕДНИЧКОЈ СВОЈИНИ У БРАКУ
COMMUNITY OF PROPERTY IN MARRIAGE

Summary/Abstract: The reasons for community of property of a husband and wife in Yugoslav law are the same as in other legal systems (the fulfillment of everyday needs in a marriage, the community of rights and obligations of the spouses, the effective protection of conjugal and family harmony, and last but not least, legal and cultural values). To this one may add the examples of alliteration in Family Law (special legal features of the forms of the matrimonial property and the institution of the matrimonial home in comparative law. When referring to the alienation (e.g. sale) of community property in a marriage, the author contests the well-established opinion that it is impossible for one party in a marriage to sell the property that is owned by both parties. First of all, he stresses that there are provisions of Family Law, permitting the division, hence the constitution of quotas (co-owner shares) belonging to each marital party. Sometimes, it may even emerge that some item is jointly owned only in formal terms but in actual fact it belongs to only one party. Moreover, if one party sells an item of property and thereby does not encroach upon the rights of the other party, the sale has full legal effect. Whereas, if that party goes beyond his quota and does encroach upon the rights of the other party, where movables are involved, the buyer may nevertheless acquire the right of ownership a non domino. There are also provisions of the Law of Contracts permitting the sale of an item that is the subject of litigation and the sale of an item belonging to a third party (in this case to the other spouse) which the buyer, also, may acquire, the seller only being liable to his spouse. The author points out that according to the general principles of Private Law, one party may sell his/her part of community property (even before division) or alienate it under the provisions of a contract to supply board and lodging for life (contract to sustenance). Finally, after an analysis of comparative law, he proposes the criteria to solve the problem, of items received by husband and wife de lege ferenda. In this frame it is interesting to note that according to him the donation may enter the community of property of the spouses.

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