Can a Property Share Be Reduced in Divorce for Adultery or Attempt on Life?

In a divorce for adultery or attempt on life, the judge may reduce or remove the at-fault spouse’s share in the surplus according to equity. This possibility under TMK art. 236/2 does not operate automatically and does not mean that the at-fault spouse loses all property. The legal ground of the divorce, the applicable matrimonial-property regime and the type of claim sought must be examined together.

Everyday language of the kind “the unfaithful spouse cannot take property” stretches this rule too far. The statute does not create a general sanction that extinguishes all ownership rights or all claims. The centre of the subject is the participation rate in the surplus under the regime of participation in acquired property.

Under the regime of participation in acquired property, each spouse’s personal property and acquired property are separated. Surplus is calculated taking into account debts relating to acquired property, equalisation and values to be added. In the statutory system the spouses’ reciprocal participation claims are assessed and set-off may arise.

This calculation is not a half-and-half division of every item acquired during the marriage, on the title register or in fact. In respect of immovable property registered in one spouse’s name the other spouse may have a money claim; its amount depends on the time of acquisition, the source of finance and the debts.

Reduction or removal under TMK art. 236/2 first requires this legal ground to be established. A result cannot be calculated from fault alone before it is known which regime applies or which values enter the account.

The statute specifically lists divorce for adultery and for attempt on life. Adultery is regulated in TMK art. 161; attempt on life in art. 162. Not every allegation of infidelity is a divorce judgment given for adultery, and not every incident of violence is accepted as an attempt on life.

Extremely degrading or dishonourable conduct is also in art. 162; the wording of art. 236/2, however, refers especially to attempt on life. Being regulated in the same article does not mean that these grounds are entirely identical as to the matrimonial-property outcome.

A finding that one spouse is heavily at fault in a divorce for general incompatibility is not, by itself, enough for the direct application of this special rule. The effect of heavy fault on maintenance or compensation may be assessed under other conditions. The limits of the special provision for the property-regime result should be preserved.

In the property-regime case the operative part of the divorce judgment and the ground on which it rests are examined. Using the word adultery in the petition and the court’s deciding divorce for adultery are not the same thing. Mention in the judgment only of conduct contrary to the duty of fidelity does not automatically produce the result of art. 161.

For that reason it should be assessed at the outset of the divorce case which specific or general grounds the events will be based on. A result later sought in the property division may not be constructed independently of the legal character of the final divorce judgment.

In a consensual divorce, merely writing “there was betrayal” in the protocol does not of itself have the same effect as a judgment of divorce for adultery. Property arrangements in the protocol are examined under their own scope and validity conditions. Broad waiver wording may also cause a loss of rights.

TMK art. 236/2 gives the judge power to make an equity assessment. The statutory possibility of “reduction or removal” does not mean that a zero share must be given in every suitable case. The court must reach a reasoned result by assessing the concrete circumstances.

There is no fixed percentage or single rate applied in every file. The parties’ situations, the nature of the events and the liquidation account may form part of the legal discussion. A rate given in another file does not produce a ready result for a new dispute.

When preparing a claim, instead of saying only “they are at fault so they should take no property”, it should be explained which legal provision is relied on for which claim. The factual and legal grounds of a request for reduction and of a request for complete removal should be visible.

Property owned before the marriage, or acquired by inheritance or gift, may as a rule be treated as personal property. A further distinction is drawn as to their income and the values that replace them. The at-fault spouse’s own personal property does not pass into the other spouse’s ownership merely because of fault.

A value-increase share, a contribution share, a jewellery claim and a claim of ownership are not the same institution. The provision of TMK art. 236/2 on the participation share in the surplus does not automatically erase all of these claims. The basis of each claim and the period to which it belongs must be examined separately.

For example, transferring a spouse’s own inherited money into immovable property acquired in the other spouse’s name, and claiming a participation share in value acquired with employment income during the marriage, may produce different calculations. Who is on the title and who was found at fault in the divorce do not answer every question.

The date of marriage, any matrimonial-property contract and the periods before and after 1 January 2002 should be assessed. A change in the statutory regime does not mean that a single account will be applied to the entire past of every marriage. Payments made at different times toward the same immovable property may have separate importance.

In a regime ending with divorce, TMK art. 225 takes the date of the action as the basis. The relationship of the liquidation account to the final divorce judgment and the valuation moment are, however, different matters. The market value seen on the day the action is filed should not be assumed in every case to be the final figure.

Liquidation of the matrimonial-property regime is not an automatic appendix to divorce. The claim must be properly put forward, and issues such as fees and the value of the action must be assessed. Even if it is conducted in connection with the divorce case, it usually requires a separate account and examination; finality of the divorce may be a preliminary question.

The file should include, besides the divorce judgment and finality information, documents of acquisition and financing of the property. It should be explained which part of the participation-claim account the request for reduction or removal is directed at. If a definite amount cannot be calculated, the available procedural routes are examined separately.

Statutory protection and accounting rules are assessed in respect of transfers that may endanger the liquidation claim. For a precautionary measure the property and the risk must be particularised; seeking an unlimited, unexplained barrier over the spouse’s entire assets is not an appropriate preparation.

Values to be added and certain claims against third persons are subject to special conditions linked to the date and purpose of the transfer. An adultery allegation does not stand in for those conditions. Transfer of the property to a third person, the third person’s liability and the participation rate between the spouses are separate headings.

The principal bases are TMK arts. 161–162, 202, 218–241 and especially art. 236/2. This guide does not replace a sharing calculation; it aims to distinguish the divorce ground from the type of claim sought.