In practice, we frequently encounter client inquiries regarding the possibilities of terminating or modifying the scope of Community Property of Spouses (“CPS”), either prior to its commencement or during its duration.
The individual options for modifying CPS are limited primarily by the following statutory principles contained in the Civil Code:
- CPS is established upon the creation of the marriage;
- In principle, CPS includes everything acquired by either spouse during the marriage;
- Spouses may, by agreement, expand or restrict the legally defined scope of CPS;
- Spouses may agree to reserve the creation of CPS until the date of the dissolution of the marriage;
- CPS may be terminated only if its continuation would be contrary to good morals, or if one spouse acquires a business license;
- Upon its termination, CPS is settled by agreement or by a court;
The dissolution of the marriage results in the termination of CPS.
The aforementioned rules are contained in the mandatory provisions (jus cogens) of the Civil Code; therefore, they cannot be altered even by an agreement between the spouses.
For this reason, efforts are often made to regulate CPS in a manner that is not expressly prohibited, but which the Civil Code does not explicitly permit regarding its modification or settlement.
In its resolution Case No. IV. ÚS 461/2025-21, issued on September 16, 2025, the Constitutional Court of the Slovak Republic (“CC SR”) addressed the admissibility of a preliminary agreement (an agreement to conclude a future agreement) on the settlement of CPS.
One of the fundamental arguments of the petitioner—whose preliminary agreement on the future settlement of CPS was declared illegal by general courts for circumventing the aforementioned mandatory rules—was that there was no conflict with Section 149(1) of the Civil Code (which permits the settlement of CPS only after its termination). The petitioner argued that this was merely a preliminary contract that did not settle the community property assets prior to its termination.
The CC SR stated that, from a formal perspective, one could agree with the petitioner that the conclusion of a preliminary agreement on the settlement of CPS during the marriage does not yet constitute the actual settlement, as the rights and obligations of the future contract are not yet effective.
However, according to the CC SR, the petitioner overlooked the fact that the essence and purpose of a preliminary agreement, through which the CPS is to be settled, is the completion of the entire contractual process in the form of concluding the executory (final) contract. Consequently, the legal relationship established (or constructed) by a preliminary agreement must be understood in its full context, which includes the future obligations arising from the final settlement agreement.
The link between a preliminary agreement and the final contract lies in the fact that the preliminary agreement creates a strong position for the entitled party (enforceable even through public authorities) to complete the establishment of the legal relationship from the final contract. In other words, the final contract is merely the completion of the process envisaged by the preliminary agreement.
Section 149(1) of the Civil Code (permitting CPS settlement only after its termination) prevents any contractual arrangement that, during the existence of CPS, creates contractual rules by which it may be settled.
In accordance with the cited decision of the CC SR, it applies without exception that the rules for the settlement of CPS (in the broadest sense) can only be agreed upon after its termination.
In its decision, the CC SR thus confirmed the conclusions of the Supreme Court of the Slovak Republic, which preceded the proceedings before the CC SR, stating that a preliminary agreement on the settlement of CPS concluded during the marriage is absolutely null and void.
Interestingly, according to the draft of the new Civil Code, contractual regulation of CPS (to be renamed “Joint Property of Spouses”) will be permissible, allowing spouses to arrange their property relations differently from the statutory default. Such an agreement may also be concluded by engaged couples before the creation of the CPS, becoming effective upon marriage. Should the new Civil Code take effect, the method of regulating spouses’ property rights will change fundamentally.
The expected effective date of the new Civil Code is set for July 1, 2027.
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