Asset Inventory and Preservation of Records
Each spouse may at any time demand that the other spouse have an inventory of his or her assets prepared by an official instrument. An inventory prepared within the one-year period provided by law, starting from the time the assets were brought in, is deemed accurate unless the contrary is proven. The inventory may help reduce evidentiary disputes that may arise later regarding the existence of an asset, to whom it belongs, its date of acquisition and its initial condition.
An inventory alone does not conclusively determine whether an asset is acquired or separate property. Land registry, bank, vehicle, company and investment records, as well as debt, loan and payment documents, must be reviewed separately. In particular for company shares, digital assets, valuables or assets located in different countries, it is important that the existing records be preserved lawfully and that historical movements be identified.
Allegations of Diverting Assets and Protection of Assets
The transfer, before the divorce or during the divorce action, of immovable property, a vehicle, a company share, money in a bank account or some other asset value is not in every case legally regarded as “diverting assets.” The time of the transfer, its price, its parties, its real economic purpose and the intent to reduce the participation claim are assessed on concrete evidence.
Where the conditions are met, the following may come into question;
- Adding to the liquidation calculation transfers made with the aim of reducing the participation claim,
- Taking into account, to the extent provided by law, gratuitous transfers,
- Resorting to the liability of a third party,
- Requesting an interim injunction over particular asset values,
- Limiting the spouse’s power of disposal by court decision,
- Having land registry, bank, trade registry and other official records produced
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If the debtor spouse’s assets or the estate are not sufficient to collect the participation claim, recourse may be had, under the statutory conditions and limited to the shortfall, to a third party who has benefited from a gratuitous transfer that should have been included in the calculation of the acquired property. This action does not rest merely on an asset having been transferred to a third party; the gratuitous transfer, the value to be added, the insufficiency of the debtor spouse’s assets and the amount claimed are each examined separately.
Special time limits apply to this claim against a third party. The right of action lapses one year after the creditor spouse or his or her heirs learn that their rights have been impaired and, in any event, five years after the matrimonial property regime ended. These periods must not be confused with the assessment of the general statute of limitations applied to the claim under the matrimonial property regime.
An interim injunction is not applied automatically. The subject of the requested measure, its necessity for protecting the existing right, prima facie proof and proportionality must be made concrete. Instead of requests that restrict all of the assets without justification, a protection plan that is linked to the risk and can be verified should be built.
Valuation of Assets and Evidence
Whether an asset enters the liquidation and the value at which it will be taken into account are not the same question. As to whether the asset is acquired or separate property, the source of acquisition and the date on which the matrimonial property regime ended are taken into account; as to the calculation of value, the date and the market-value principles provided by law for the relevant type of claim are taken into account. Debts, transfers and any increase or decrease in the value of the asset may also affect the calculation.
Depending on the nature of the dispute, the following evidence may be important:
- Land registry, cadastral, municipal and building records,
- Vehicle registration and insurance records,
- Bank accounts, loan agreements, payment schedules and payment receipts,
- Tax, social security and employment records,
- Trade registry, articles of association, share ledger, financial statements and company books,
- Certificate of inheritance, probate and transfer records, and gift documents,
- Sales agreements, invoices, receipts and money transfers,
- Records of digital asset platforms and lawfully obtained electronic data,
- Witness statements and reports of specialists and court-appointed experts.
The court may be asked to have institutional records produced; however, it must be explained which record will prove which fact. Records obtained through unlawful access to private life or personal data may, besides their evidentiary value, create a risk of legal and criminal liability. A lawful method of preservation and presentation must be determined before the evidence is altered, deleted or taken out of context.
Our Approach to Protecting Assets
Assessment of the risk and the evidence
The date of the transfer, the price, the relationship between the parties and the existing records are reviewed. The allegation is separated from the concrete fact; the lawful obtaining and preservation of the evidence is observed.
An appropriate protective request
The need for an injunction, prima facie proof and proportionality are assessed on the specific file. A claim against a third party and the special time limits are handled separately; the same route is not recommended for every transfer.
The scope of the engagement, fees and expenses, and the method of document sharing and reporting are determined at the consultation. Representation depends on acceptance of the engagement and the necessary authorization.
This is general information. The nature of the claim, the documents, current legislation and the specific facts must be assessed together. Submitting an inquiry does not stop statutory time limits.
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