Legal consequences of marriage and property division in divorce

Under the legislation of Georgia, a conventional and traditional concept of marriage prevails. Marriage and family are regarded as socio-legal institutions that manifest in the union of two individuals of different sex, specifically, a woman and a man.

The Constitution of Georgia defines the right to marriage as a fundamental human right, encompassing both positive and negative aspects. In the interpretation of the Constitutional Court, the negative aspect pertains to the prohibition of coerced marriage and family formation, while the positive aspect involves the state's duty not to impose disproportionate and obstructive barriers on those seeking to marry.

Conversely, the Civil Code of Georgia aligns with the constitutional provision and defines marriage as a voluntary union between a man and a woman, primarily aimed at establishing a family. Legal protections are conferred only upon marriage registration with the Service Development Agency. Consequently, the Georgian legislation does not recognize marriages that are not registered, including the mere act of making the sign of the cross does not imply marriage registration.

The Civil Code provides explicit prerequisites for marriage. Among these conditions, the marriageable age is established at 18 years, and the marriage of an adult who is beneficiary of support is admissible only with the prior written consent of their legal custodian. Beyond the stipulated age requirements, the consent of the individuals intending to marry is mandatory for marriage registration, as any form of coercion to initiate a family is prohibited.

Furthermore, if one of the prospective spouses is a beneficiary of support, it is compulsory to execute a marriage contract that includes provisions related to the supporter. Failure to include the supporter in the marriage contract renders the marriage ineligible.

The civil Code provides for exceptional conditions, in which case marriage is not allowed.

Marriage shall not be allowed:

1. between the persons at least one of whom is married to a third person;
2. between lineal ascendants and descendants;
3. between biological and non-biological siblings;
4. between an adoptive parent and an adoptee;

What could become grounds for terminating a marriage?

Article 1220 of Civil Code stipulates that:

Marriage shall be terminated if:

1. a spouse dies;
2. a spouse is declared dead according to the procedure laid down by law; The responsibility for declaring an individual dead falls under the jurisdiction of the court. A person is declared dead if they have been missing for a duration exceeding 5 years. In this scenario, the marriage is deemed terminated starting from the moment the court's decision becomes legally effective. Additionally, a person whose death is presumed to have resulted from accidents can also be declared deceased through a court decision. In such cases, the person is declared as deceased from the point at which these circumstances are deemed to have occurred.
3. the spouses divorce; The divorce process in Georgia encompasses two distinct procedural aspects. If both spouses mutually consent to the divorce, it is executed through the Civil Deeds Registration Authority. However, if one of the spouses declines the divorce, then the divorce proceedings are conducted through the court. It's essential to note that the law imposes a prohibition on the husband from initiating divorce proceedings without the consent of the other spouse if the wife is pregnant or if the child is less than one year old.

Furthermore, it is noteworthy that, along with the divorce process, the court is tasked with addressing several other matters, including disputes related to the division of the spouses' joint property, the obligation of mutual financial support, matters pertaining to child custody arrangements, and the determination of alimony payments. Within the context of this article and from the list mentioned, we shall discuss the matter of property division in the event of a divorce.

Article 1158 of Civil Code stipulates that any property acquired by the spouses during their marriage shall be treated as their joint property (matrimonial property), unless otherwise determined by the marriage contract.

It is essential to underscore that, according to Georgian legislation, the regulation of property rights protection within the family context ranks among the most important issues. In contemporary society, it is common for mothers to forego employment in order to dedicate themselves to family care. In situations involving property division, the spouse who primarily contributed to the family's financial well-being often lays claim to certain assets on the premise that they were solely responsible for earning them. To preempt such occurrences, the legislation stipulates that the right to co-ownership of assets arises even if one spouse was engaged in household activities, childcare, or other honorable pursuits without independent income.

In any case, property acquired during the marriage and before divorce is considered joint property of the spouses. Nevertheless, the law specifies a list of properties that, despite being acquired during the marriage, are deemed individual property. These include:

The following shall be the separate property of each spouse:

1. property that each of them owned before the marriage;
2. property inherited or received as a gift during the marriage;

Along with that, articles of personal use could also be deemed as a separate property of the spouse, if aforementioned goods have low economical value and is of individual purpose, except jewelry.

Thus, with the exception of the above-mentioned exception, spouses have equal rights and duties on joint property - to own, dispose of and enjoy common property.

Division of joint (matrimonial) property during divorce

Under Georgian legislation, the termination of a marriage leads to the termination of co-ownership involving both property and non-property rights and responsibilities. The joint property of spouses can be partitioned even while the marriage is still in effect. Spouses may pursue this process when they are compelled to live apart, although property division can also be carried out when they reside together, depending on the terms established in their marriage contract.

The division of spousal co-ownership is typically accomplished through mutual agreement between the spouses. However, in cases where no such agreement is reached, the court intervenes to oversee the division of joint property.

Spouses have the option to formalize a mutual agreement through a marriage contract. In accordance with the previously mentioned legal framework, they can modify the default rule established by law regarding the joint property of spouses. This modification enables them to either consolidate all their assets, including those acquired during the marriage (joint property), or alternatively, they can wholly or partially renounce such consolidation and establish shared or separate ownership for each of them as per their mutual agreement. However, a marriage contract may not change the duty of reciprocal maintenance of the spouses, parental rights and duties towards children, child support obligations and the right to file an action in court in the event of a dispute.

Moreover, it's important to note that any conditions in the marriage contract that could place one of the spouses in a disadvantageous position are not permissible. To validate the contract, it must be executed in writing and notarized.

When it comes to dividing co-ownership, the court determines the allocation of property between the spouses. In instances where property is sold, there is a risk that one spouse may end up with assets of greater value than the other. In such cases, the latter is compensated for their share, either monetarily or through assets. Nevertheless, the court may deviate from this principle when considering the significant interests of minor children or one of the spouses. The rationale for deviation could include increasing one spouse's share, particularly if minor children reside with them, they are incapable of working, or if the other spouse depleted joint assets to the detriment of the family's interests. These deviations are made with a view to ensuring fairness and addressing the unique circumstances of each case.

Division of joint debts of spouses

Generally, joint debts of spouses shall be divided between them pro rata to the shares to which each of them is entitled. Thus, when both parties involved in the transaction are spouses, a joint debt of the spouses is established. This joint debt persists even when the borrowed amount is utilized for the shared interests of the entire family, such as the acquisition of real estate, apartment renovations, funding a spouse's education, and so forth. If the debt is attributed to one of the spouses, it can be settled from their individual property and/or from their portion in co-ownership, which they would be entitled to receive in the event of property division.