Claim for partition and its expiring in divorce
This article is published in Mosaic-magazine in South Karelia.
According to the Finnish legal system at the end of the marriage can be made partition of property, or if the spouses do not have marital right to each other’s assets, separation of the property.
According to the law, marriage ends in Finland either to divorce or to the death of another spouse. In both cases, each party has an independent right to claim partition of property. In divorce this means spouses and in the case of death the parties are the widow and the heirs of the deceased.
There is no deadline for the partition and the claim will not expire within the framework of normal expiring provisions. The partition must be executed at the latest, however, after the parties have died before the inheritance distribution is possible. This article focuses on the claim for partition and its expiring when the grounds for it is divorce.
In case of divorce, spouses often find it difficult to think about the partition of property or their own statutory rights, not to mention the kind of legal effects that partition may have according to Finnish law. The extent of the property to be divided depends on the beginning of lis pendens of divorce and the property is generally distributed equally after the debts of the spouses have been deducted. The more owning spouse’s duty is to give adjustment to the spouse with less property. When property will be divided, the ownership relations may change and a legitimate partition agreement is required to prove one’s ownership after the partition.
The right to claim for partition itself does not expire, so dividing can be claimed even after a long time. The other thing is that because of the passivity of a spouse or spouses, it may in some cases be considered that the right to claim for division may not necessarily exist after years. Such a situation may be at hand when the spouses have been aware of their right to demand partition, but have deliberately left this opportunity unused and contented with the situation as such. This in practice implies that both spouses at the end of the marriage kept their own possessions and the together owned movables have been amicably divided between the spouses, and no more requirements have been made to each other.
The partition can be made with mutual understanding of the spouses or by an executor appointed by the court. If no agreement has been reached or the completion of the division cannot be proved, either of the spouses is entitled to seek an executor for the partition even after years of divorce. As a rule, financial matters between spouses are not resolved in court. If the spouses are not able to settle in an amicable manner, the executor appointed by the court has the power to decide, in addition to other disputed questions, whether the division can be considered concluded or whether the right of partition claim may have been forfeited due to passivity.
However, partition immediately after the end of the marriage can be recommended in all situations, including those where the marriage lasted for a short time. This helps to avoid many problematic situations, such as changes in property ownership after divorce, valuation issues, and problems related to depletion of property and the ability to pay possible adjustments. New marriages or deaths of former spouses might also cause difficulties, if the division has not been made after the divorce. It is therefore advisable not to postpone the partition, even though the partitioning claim does not actually expire.