A common issue in legal practice is the question: what am I entitled to after a divorce? Especially for the economically weaker spouse (usually the wife), the lack of a clear framework for the distribution of marital property after the breakdown of the marital cohabitation constitutes a key reason for avoiding the “conflict” required when exiting a marriage. This becomes even more problematic in cases of domestic violence, which may take the form of economic control and coercion, even in couples of significant financial means.

This article aims to serve as a basic “guide” to the question: what am I entitled to when I separate? Is there a joint marital property and what share belongs to me? In particular, it is analyzed the claim for participation in acquisitions under Article 1400 of the Greek Civil Code, while special reference is taking place to cases where the owner of the property created during the marriage is not, in legal terms, the spouse but a “company” in which the spouse participates.

1. The principle of separation of assets under Greek law – The claim for participation in acquisitions as a “counterbalance”

Although exposure to predominantly Anglo-Saxon cinematic productions has created the common belief that after divorce one is entitled to “50%” of everything acquired during the marriage, this perception is far removed from Greek legal reality.

The article 1397 of the Greek Civil Code provides that, in principle, marriage does not alter the separate property status of the spouses. This means that whatever is acquired by one spouse during the marriage remains in that spouse’s name and, after the dissolution of the marriage, remains their property. The only exception provided by law is the existence of a community-of-property agreement, a legal institution rarely used in practice (a different situation applies in international couples who have chosen a foreign law governing their property relations, which may even provide for prenuptial agreements; see in detail: https://eliasyiannatsis.gr/en/pre-nuptial-agreements-in-greece-and-yet-it-happens/).

Even the fact that, after separation, the family home may be granted for use to the non-owner spouse (although it belongs to the other spouse) does not alter the fact that ownership remains with the original owner after the dissolution of the marriage, without the other party being able to claim transfer of ownership. The economically weaker party therefore appears, in principle, left unprotected.

This inequality is counterbalanced by the claim for participation in acquisitions under Article 1400 of the Civil Code. According to the exact wording of the provision:

“If the marriage is dissolved or annulled and the property of one spouse has increased after the marriage was concluded, the other spouse, provided that they contributed in any way to this increase, is entitled to demand a portion of the increase corresponding to their contribution. It is presumed that this contribution amounts to one-third of the increase, unless it is proven to be greater, smaller, or non-existent. The above paragraph also applies analogously in the case of separation of spouses lasting more than three years. In the increase of the spouses’ property, anything acquired through donation, inheritance, legacy, or disposition of such assets is not taken into account.”

In simple terms, after the dissolution of the marriage or after three years of separation, a spouse may claim a portion of the increase in the other spouse’s property that is attributable to their contribution, which is presumed to be one-third.

2. What constitutes an increase in assets and how is it calculated?

An increase in property is not considered a specific acquisition, but rather the difference between the financial situation of the liable spouse at the time of marriage (initial assets) and at the time the claim arises (final assets).

It is important to note that, in practice, an increase also includes an increase in value, not only in assets, since the assets may remain the same but their value may change (for example, renovation of a house owned by one spouse funded by the other spouse, which increases its value).

The time of determining the final assets is either the time of dissolution of the marriage or, in the case of a claim based on three years of separation, the time when this period expires.

Assets included in the claim may include:

• Rights in rem over movable and immovable property
• cash or bank deposits (including joint accounts with third parties)
• Intellectual Property Rights
• shares in companies (SA), company shares in LLCs or partnerships, bonds (but not the company’s own assets as a legal entity, see below)

Not included are claims that were already established and due before the marriage but were paid during it. Conversely, claims that were established and due before the final dissolution of the marriage but were paid after it are included.

As expressly provided by the wording of the law, the increase in the liable spouse’s property does not include assets acquired by way of donation, inheritance, or legacy, nor assets acquired through the disposal of property obtained from such causes. Likewise, assets acquired by the liable spouse through any gratuitous transfer (causa donandi), such as parental donations, are likewise excluded from the calculation of the increase in property.

3. How can one claim more than 1/3 of the increase, or prove a lower or zero contribution? – Especially the concept of “contribution”

Since the law provides that for the claim, the contribution may take “any form,” it covers a broad range of assistance between spouses, such as capital contributions, provision of services valued in money, social or professional networking, etc.

Unless proven otherwise, the contribution is presumed to be one-third of the increase.

However, the claimant may seek a higher percentage (e.g. one-half) if they prove that their contribution exceeded ordinary family support obligations and directly or indirectly increased the other spouse’s assets. A common case is the unpaid personal work in the spouse’s business. Similarly, household work may be financially assessed based on hypothetical income the spouse could have earned if they had engaged in a paid employment instead.

On the other hand, the defendant spouse may prove that the claimant’s contribution was less than one-third or even negligible.

Likewise, the existence of liabilities in the estate constitutes an objection which must be pleaded and proved by the defendant. Correspondingly, the defendant may, by way of defence, argue, inter alia, that an asset acquired during the marriage was disposed of and that the consideration received therefrom was used to meet the needs of the family; raise the objection that the claimant has waived his or her claim; the objection of advance payment (namely, that a sum of money has already been advanced to the claimant on account of his or her claim for participation in the matrimonial acquisitions); the defence of set-off against the defendant’s corresponding claim for participation in the claimant’s matrimonial acquisitions; and the defence of abusive exercise of the right.

4. What happens when the property belongs not to the spouse but to a company in which they participate?

As consistently held in case law (see indicatively Supreme Court decision 312/2023), the claim for participation in acquisitions concerns only the personal property of the spouse and not the individual assets of a legal entity (company) in which the spouse participates. This position often gives rise, at first sight, to an apparent “imbalance” in cases where the property acquired by the liable spouse through the contribution of the entitled spouse legally constitutes property of the company, or even of the companies concerned. An even more problematic situation may arise in practice where the assets are owned by a single-member capital company (that is, a company in which only the spouse participates).

Although no obstacle may be placed in the way of the freedom of enterprise safeguarded by the separate legal personality of the legal entity, it is accepted that, where the liable spouse establishes a sham company to which the property acquired by him or her is transferred, such assets should not be taken into account as forming part of the company’s assets, but rather as forming part of his or her own estate. This means that the liable spouse shall remain liable to account for the contribution of the entitled spouse to that increase in assets, even where, formally, it appears to concern the legal entity.

Conclusion

The regulation of spouses’ property relations constitutes a thorny field arising following the separation of a couple and requires appropriate legal guidance (it should be noted that the above also apply to couples who have entered into a civil partnership, but not to couples in free union, who must seek any contributions to the increase in their partner’s assets on the basis of the provisions on unjust enrichment). Whether it concerns the entitled spouse, who is in the process of seeking appropriate advice to secure his or her claim, or the liable spouse, who is interested in protection against abusive, wealth-redistributive claims, it is necessary to consult a specialised lawyer in good time, especially where precautionary measures are to be taken for the securing of the claim