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Division of Property Between Spouses in Lithuania: From Substantive to Private International Law

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Balkan Yearbook of European and International Law 2022

Part of the book series: Balkan Yearbook of European and International Law ((BYEIL,volume 2022))

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Abstract

This paper focuses on the division of matrimonial property between spouses in national and private international law of Lithuania. It firstly presents the rules on default and contractual matrimonial property regime, offering insights into the national framework and concepts. Then, the paper moves to discuss national private international law rules applicable in cross-border cases. Analysing the case law, the authors discuss the peculiarities of property division between spouses in Lithuania and disclose the challenging application of national private international law in more complicated cross-border situations. The authors showcase the complexity of proceedings when spouses have to divide their marital property which is situated in different countries and propose to simplify at least the solution of EU cross-border cases by joining the Twin Regulations.

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Notes

  1. 1.

    Mikelėnas et al. (2009), p. 151.

  2. 2.

    Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, OJ L 183, 8.7.2016, pp. 1–29.

  3. 3.

    Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships, OJ L 183, 8.7.2016, pp. 30–56.

  4. 4.

    See Article 1 (2) of the Lugano Convention which establishes that the Convention does not apply, inter alia, to property rights in matrimonial matters. Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (Lugano Convention) of 16 September 1988.

  5. 5.

    In April 2022 (the date of finalising this paper), Lithuania has bilateral agreements in the field of international legal cooperation in civil and family matters with the following countries which are not the members of the EU: Azerbaijan, Belarus, Moldova, Kazakhstan, Russia, Ukraine and Uzbekistan.

  6. 6.

    Belgium, Bulgaria, Cyprus, Czech Republic, Germany, Greece, Spain, France, Croatia, Italy, Luxembourg, Malta, Netherlands, Austria, Portugal, Slovenia, Spain, Finland and Sweden.

  7. 7.

    Constitutional Court Ruling of 28 September 2011, Nr. 21/2008.

  8. 8.

    On the concept of “family” in Lithuania, see further Sagatys (2010); Ambrazevičiūtė et al. (2012); Mizaras (2012).

  9. 9.

    For its commentary (in Lithuanian) see Mikelėnas et al. (2002).

  10. 10.

    See Article 38 of the Constitution of the Republic of Lithuania, stating that “Marriage shall be concluded upon the free mutual consent of man and woman.” In addition, under Article 3.7 of the Civil Code of the Republic of Lithuania, marriage is a voluntary agreement between a man and a woman to create legal family. Article 3.12 prohibits marriage of persons of the same sex.

  11. 11.

    Under Article 3.229 CC (in Chapter “Living together without marriage”), “the norms of this chapter establish the property relations between a man and a woman who, having registered their partnership in accordance with the procedure established by law, have been living together for at least one year without registering a marriage (cohabitants) for the purpose of establishing a family relationship”.

  12. 12.

    As noted above, special law regarding registered partnerships was not adopted so far, thus special rules on governing the property relationship between partners (Articles 3.230 – 3.235 CC) have not entered into force. Political debates on the adoption of the Partnership Law are ongoing in Lithuania.

  13. 13.

    See also Kudinavičiūtė-Michailovienė (2009).

  14. 14.

    See further Vitkevičius (2006).

  15. 15.

    Supreme Court, Ruling of 8 May 2015, No. 3K-3-259-378/2015.

  16. 16.

    Supreme Court, Ruling of October 27, 2021, No. e3K-3-266-403/2021.

  17. 17.

    Supreme Court, Ruling of 16 November, 2005 No. 3K-3-529/2005; Supreme Court, Ruling of 11 April, 2012, No. 3K-3-52/2012; Supreme Court, Ruling of 21 February, 2019, No. 3K-3-55-916/2019.

  18. 18.

    See further Keserauskas et al. (2002), pp. 244–245.

  19. 19.

    Supreme Court, Ruling of 27 October, 2021, No. e3K-3-266-403/2021.

  20. 20.

    Supreme Court, Ruling of 15 February, 2006, No. 3K-3-126/2006; Ruling of 20, June, 2007, No. 3K-3-220/2007; Ruling of 16 December, 2011, No. 3K-3-517/2011; Ruling of 21 February 2021, No. 3K-3-55-916/2019.

  21. 21.

    Supreme Court, Ruling of 10 April, No. 3K-3-251/2006; Ruling of 3 November, 2009, No. 3K-3-479/2009, Ruling of 18 May, 2017, No. 3K-3-243-969/2017.

  22. 22.

    See e.g. Supreme Court, Ruling of 13 June 2018, No. 3K-3-229-378/2018.

  23. 23.

    Supreme Court, Ruling of 9 June 2022, No. e3K-3-159-916/2022.

  24. 24.

    This can be proved by all possible evidence, for example, by referring to witnesses (neighbours, relatives, friends, etc.), written evidence (e.g. letters, delivery of receipts, invoices for goods or services addressed to cohabitants’ common place of residence, photographs), etc.

  25. 25.

    Supreme Court, ruling of 28 March 2011, No. 3K-3-134; Supreme Court, ruling of 3 October 2005, No. 3K-3-410, and later cases, e.g. Supreme Court, Ruling of 9 June 2022, No. e3K-3-159-916/2022.

  26. 26.

    The Supreme Court has pointed out that the requirement that unmarried cohabitants (cohabitants), when acquiring property jointly, should only agree with each other in writing is not in accordance with the principles of fairness and reasonableness (Art. 1.5 CC). Thus, notwithstanding the imperative nature of Article 6.969(4) CC, which provides for the mandatory written form of a joint venture agreement, the case-law treats the relationship between unmarried persons as a contractual relationship of a joint venture/partnership, irrespective of whether the unmarried persons have entered into such a written agreement. An unwritten agreement on a contractual relationship of joint activity (partnership) with a view to the creation of a community of property may be proved by circumstances such as the cohabitation of the parties (in particular, if it is not episodic, but lasts for a long time and is permanent and stable), the management of the household together, the creation of common property by means of personal funds and/or by own work, etc. Cohabitation, joint management of the household, the creation of joint property by unmarried persons (cohabitants) with their own means and by their own joint labour may be proved by all available evidence (Supreme Court, Ruling of 11 April 2019, No. e3K-3-133-421/2019). See also Kudinavičiūtė-Michailovienė (2008).

  27. 27.

    See further: Limantė and Chochrin (2019), pp. 407–426; Petrylaitė (2014); Ravluševičius (2017), p. 2293; Tamošiūnienė and Kudinavičiūtė-Michailovienė (2013).

  28. 28.

    Vilnius Regional Court, Ruling of 17 January 2017, No. 2A-535-580/2017.

  29. 29.

    Order of the Supreme Court of Lithuania of 8 November 2010 in civil case No. 3K-3-432/2010.

  30. 30.

    Article 26 of the Agreement between the Republic of Lithuania and the Republic of Poland on Legal Assistance and Legal Relations in Civil, Family, Labour and Criminal Matters of 26 January 1993.

  31. 31.

    Choice of law agreement might be concluded as a separate instrument or be included as a provision in the marriage (prenuptial or postnuptial) contract.

  32. 32.

    Notary approval is required for the marriage agreement and it should be registered in the special State register—“Register of Marriage Agreements”. Marriage agreements concluded in a foreign country may also be registered in the Register of Marriage Agreements. This possibility is available to persons whose marriage agreement contains a Lithuanian personal identification code of at least one of the parties to this agreement.

  33. 33.

    Supreme Court, Ruling of 8 November 2010, No. 3K-3-432/2010.

  34. 34.

    Supreme Court, Ruling of 30 May 2013, No. 3K-7-159/2013.

  35. 35.

    Article 3.83 (2) CC regulates that terms of a marriage contract that are contrary to imperative legal norms, good moral or public order are null and void.

  36. 36.

    Article 3.108 (2) CC. Supreme Court, Ruling of 10 May 2013, No. 3K-3-191/2013.

  37. 37.

    Article 3.108 (1) CC.

  38. 38.

    Real Property Register of the Republic of Lithuania Act, Valstybės žinios, 1996-10-16, Nr. 100-2261.

  39. 39.

    Valstybės žinios, 2002-04-06, Nr. 36-1340.

  40. 40.

    See further about Lithuanian judicial system in the official Lithuanian judicial system website: https://www.teismai.lt/en/courts/judicial-system/.

  41. 41.

    See Articles 26, 27 and 28 CCP.

  42. 42.

    See Article 384 (3) CCP.

  43. 43.

    See Article 228 (1) CCP.

  44. 44.

    See Article 538 (2) CCP.

  45. 45.

    See Article 538 (3) CCP.

  46. 46.

    See Article 538 (4) CCP.

  47. 47.

    See Article 540 (1) CCP.

  48. 48.

    See Article 541 (1) CCP.

  49. 49.

    See Article 541 (2) CCP.

  50. 50.

    The judgements of the court of the first instance that have not been appealed against shall become effective after the time-limit for appeal has elapsed. The judgement which has been appealed shall become effective, unless it has been reversed, after the case has been heard on appeal, and the ruling or a new judgement of the court of the appeal instance shall come into effect as of the day of the adoption thereof. In case the judgement or ruling is not subject to appeal in the instances specified in the CCP, they shall come into effect on the day of the adoption thereof (see Article 279 (1) CCP).

  51. 51.

    TAR, 2015-12-14, Nr. 19697.

  52. 52.

    Only in cases and under the conditions that are listed in Articles 3.51 (1) and 3.55 CC.

    Article 3.51 (1) CC establishes that a marriage may be dissolved by mutual consent of the spouses if all the following conditions are met: (1) more than one year has elapsed since the marriage; (2) both spouses have entered into an agreement on the consequences of the divorce (division of property, maintenance of children, etc.); (3) both spouses are fully active in this area.

    Article 3.55 (1) CC establishes that a marriage may be dissolved at the request of one of the spouses before the district court of the applicant’s place of residence under at least one of the following conditions: (1) the spouses have been living apart for more than one year; (2) one of the spouses has been recognised as legally incapacitated in this field or limited in capacity by a court decision adopted after the marriage; (3) one of the spouses has been declared missing by the court; (4) one of the spouses has been serving a term of imprisonment for over a year for the commission of a non-premeditated crime.

  53. 53.

    See Article 540 (2) CCP.

  54. 54.

    See Article 83 (1)(12) CCP.

  55. 55.

    See Article 80 (1)(1) CCP.

  56. 56.

    See Articles 301 (1), 301 (3), 307 (1) CCP.

  57. 57.

    A separate complaint (atskirasis skundas) may be lodged against a court decision rejecting an application to renew a missed time limit for lodging an appeal. If the appellate court upholds such a separate complaint and renews the time-limit for lodging an appeal, the Chairman of the Civil Division of the appellate instance court shall remit the appeal to the panel of judges of that court or return it to the court of first instance. When the case is remitted to a panel of judges of the Court of Appeal, the court of appeal shall comply with the requirements laid down in Article 317 (1) CCP. Where, in accordance with Article 317 (2) CCP, the case is referred to a court of appeal and that court finds that the time-limit for lodging an appeal has expired, it may: (1) on its own initiative (ex officio) renew the time-limit for lodging an appeal if it is clear from the material available that the time-limit was missed for important reasons; (2) propose to the person participating in the case to submit an application for renewal of the term for filing an appeal. An application for renewal of the missed time limit for lodging an appeal may not be made more than three months after the date of the judgment (Article 307 CCP).

  58. 58.

    See Article 345 (1) CCP.

  59. 59.

    See Article 346 CCP.

  60. 60.

    See Article 342 CCP.

  61. 61.

    See Article 347 (3) CCP.

  62. 62.

    See Article 362 (1) CCP.

  63. 63.

    Supreme Court, Ruling of 20 October 2016, No. e3K-3-426/2016, para 13.

  64. 64.

    Article 784 (2) CCP.

  65. 65.

    Article 784 (3) CCP.

  66. 66.

    If this is the case, the Regulation Brussels II bis or other EU instruments are applicable.

  67. 67.

    For instance, 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition and Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children.

  68. 68.

    Article 810 (1) of CCP declares that judgments of foreign courts shall be recognised on the basis of international agreements. In the absence of an international agreement, recognition of foreign judgments shall be refused if: (1) the judgment has not entered into force under the law of the state in which it was given; (2) in accordance with the law of the Republic of Lithuania or the provisions of an international agreement, the case falls within the exclusive competence of the courts of the Republic of Lithuania or a third country; (3) the party who did not take part in the proceedings was not duly notified of the initiation of civil proceedings and no procedural defines was available during the proceedings and, in cases where the party was incapacitated or restricted in a particular area, adequate representation; (4) the judgment of the foreign court the recognition of which is requested is not compatible with the judgment of the court of the Republic of Lithuania made in a case between the same parties; (5) the decision is in conflict with the public order established in the Constitution of the Republic of Lithuania; (6) in making a decision, the court of a foreign state has resolved issues regarding the legal capacity of a citizen of the Republic of Lithuania, legal representation, family property or inheritance legal relations and this is contrary to private international law of the Republic of Lithuania, unless Lithuanian courts have made the same decision.

  69. 69.

    Article 810 (1)(2) CCP.

  70. 70.

    Supreme Court, Ruling of 14 October 2021, No. e2T-105-798/2021.

  71. 71.

    See i.e. Lithuanian Court of Appeal, Ruling of 12 August 2021, No. e2T-74-407/2021; Lithuanian Court of Appeal, Ruling of 12 May 2020, No. e2T-38-370/2020; Lithuanian Court of Appeal, Ruling of 13 May 2014, No. 2T-46/2014; Lithuanian Court of Appeal, Ruling of 6 August 2012, No. 2T-66/2012.

  72. 72.

    Supreme Court, Ruling of 2 October 2015, No. 3K-3-515-687/2015.

  73. 73.

    Supreme Court, Ruling of 22 February 2018, No. e3K-3-73-378/2018.

  74. 74.

    Article 97 of the Swiss Federal Act on Private International Law.

  75. 75.

    Supreme Court, Ruling of 3 June 2020, No. e3K-3-309-916/2020.

  76. 76.

    According to Article 328(1) TFEU, the enhanced cooperation is to be open to all Member States, subject to compliance with conditions of participation laid down by the authorising decision and the acts already adopted within that framework. See further: Kavoliūnaitė-Ragauskienė (2022), pp. 25–37.

  77. 77.

    See Kunda and Limantė (2022), pp. 71–101; Frimston (2019); Franzina (2018), p. 159.

  78. 78.

    See, e.g., Pogorelčnik Vogrinc (2022), pp. 101–128; Lagarde (2019).

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Author information

Authors and Affiliations

  1. Vilnius University, Faculty of Law, Vilnius, Lithuania

    Kristina Pranevičienė

  2. Law Institute of the Lithuanian Centre for Social Sciences, Vilnius, Lithuania

    Agnė Limantė

Authors
  1. Kristina Pranevičienė
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  2. Agnė Limantė
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Editor information

Editors and Affiliations

  1. Rijeka, Croatia

    Ivana Kunda

  2. Riyadh, Saudi Arabia

    Zlatan Meškić

  3. Riyadh, Saudi Arabia

    Enis Omerović

  4. Belgrade, Serbia

    Dušan V. Popović

Legal Instruments and Case-Law

Legal Instruments and Case-Law

  • Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, OJ L 183, 8.7.2016, p. 1–29.

  • Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships, OJ L 183, 8.7.2016, p. 30–56

  • Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (Lugano Convention) of 16 September 1988

  • Agreement between the Republic of Lithuania and the Republic of Poland on Legal Assistance and Legal Relations in Civil, Family, Labour and Criminal Matters of 26 January 1993

  • Constitution of the Republic of Lithuania. Lietuvos aidas, 1992-11-10, Nr. 220-0

  • Civil Code of the Republic of Lithuania. Valstybės žinios, 2000-09-06, Nr. 74-2262

  • Code of Civil Procedure of the Republic of Lithuania. Valstybės žinios, 2002-04-06, Nr. 36-1340

  • Law on the Real Property Register of the Republic of Lithuania, Valstybės žinios, 1996-10-16, Nr. 100-2261

  • Law on the Registration of Civil Status Acts, TAR, 2015-12-14, Nr. 19697

  • Constitutional Court Ruling of 28 September 2011, Nr. 21/2008

  • Supreme Court, Ruling of 3 October 2005, No. 3K-3-410/2005

  • Supreme Court, Ruling of 10 April, No. 3K-3-251/2006

  • Supreme Court, Ruling of 16 November, 2005 No. 3K-3-529/2005

  • Supreme Court, Ruling of 15 February, 2006, No. 3K-3-126/2006

  • Supreme Court, Ruling of 20, June, 2007, No. 3K-3-220/2007

  • Supreme Court, Ruling of 3 November, 2009, No. 3K-3-479/2009

  • Supreme Court, Ruling of 18 May, 2017, No. 3K-3-243-969/2017Supreme Court, Ruling of 8 November 2010, No. 3K-3-432/2010Supreme Court, Ruling of 28 March 2011, No. 3K-3-134/2011

  • Supreme Court, Ruling of 16 December, 2011, No. 3K-3-517/2011

  • Supreme Court, Ruling of 11 April, 2012, No. 3K-3-52/2012

  • Supreme Court, Ruling of 10 May 2013, No. 3K-3-191/2013

  • Supreme Court, Ruling of 30 May 2013, No. 3K-7-159/2013

  • Supreme Court, Ruling of 8 May 2015, No. 3K-3-259-378/2015

  • Supreme Court, Ruling of 2 October 2015, No. 3K-3-515-687/2015

  • Supreme Court, Ruling of 20 October 2016, No. e3K-3-426/2016

  • Supreme Court, Ruling of 18 May, 2017, No. 3K-3-243-969/2017

  • Supreme Court, Ruling of 22 February 2018, No. e3K-3-73-378/2018

  • Supreme Court, Ruling of 13 June 2018, No. 3K-3-229-378/2018

  • Supreme Court, Ruling of 21 February, 2019, No. 3K-3-55-916/2019

  • Supreme Court, Ruling of 11 April 2019, No. e3K-3-133-421/2019

  • Supreme Court, Ruling of 3 June 2020, No. e3K-3-309-916/2020

  • Supreme Court, Ruling of 14 October 2021, No. e2T-105-798/2021

  • Supreme Court, Ruling of October 27, 2021, No. e3K-3-266-403/2021

  • Supreme Court, Ruling of 9 June 2022, No. e3K-3-159-916/2022

  • Lithuanian Court of Appeal, Ruling of 6 August 2012, No. 2T-66/2012

  • Lithuanian Court of Appeal, Ruling of 13 May 2014, No. 2T-46/2014

  • Lithuanian Court of Appeal, Ruling of 12 May 2020, No. e2T-38-370/2020

  • Lithuanian Court of Appeal, Ruling of 12 August 2021, No. e2T-74-407/2021

  • Vilnius Regional Court, Ruling of 17 January 2017, No. 2A-535-580/2017

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Pranevičienė, K., Limantė, A. (2023). Division of Property Between Spouses in Lithuania: From Substantive to Private International Law. In: Kunda, I., Meškić, Z., Omerović, E., Popović, D.V. (eds) Balkan Yearbook of European and International Law 2022. Balkan Yearbook of European and International Law, vol 2022. Springer, Cham. https://doi.org/10.1007/978-3-031-29432-7_3

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