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Gemini said
In the question of the admissibility of concluding an agreement on the settlement of the community property of spouses (BSM) by spouses even before the extinction of the BSM – but with deferred effect until the date of extinction of the BSM, or an agreement on a future agreement on the settlement of the BSM, the principle of autonomy (contractual freedom) of the participants has recently been receding in favor of a formalistic interpretation of the relevant provisions of the law.
According to the provision of Section 149(1) of the Civil Code: “If the community property is extinguished, the settlement shall be carried out according to the principles set out in Section 150.” Due to the wording of the provision in question, a part of the professional public has long leaned towards the opinion that before the extinction of the BSM, it is not possible to validly conclude either an agreement on the settlement of the BSM with a suspensive condition of its effectiveness only after the extinction of the BSM, or an agreement on a future agreement on the settlement of the BSM, which would be concluded during the marriage.
These opinions are also approved by the existing decision-making practice of some courts, which, however, frankly does not meet with much understanding in practice and is perceived as an excessive interference with the contractual freedom of the participants. This is evidenced by the recent Resolution of the Constitutional Court of the Slovak Republic dated September 16, 2025, file ref. IV. ÚS 461/2025-21, which decided on a constitutional complaint filed in connection with the conclusions of the Supreme Court of the Slovak Republic adopted in the Judgment dated April 30, 2025, file ref. 7Cdo/60/2023.
The complainant challenged the correctness of the conclusions of the Supreme Court of the Slovak Republic regarding the possibility of concluding an agreement on a future agreement during the existence of the BSM, for the purpose of its settlement or modification. According to the complainant, the agreement on a future agreement on the settlement of the BSM was valid, as it was only a preliminary contract that did not settle the property in the BSM before its extinction. According to him, the contract only addressed the obligation to conclude a future agreement on the settlement of the BSM after its extinction, i.e., a contractual obligation aimed at the settlement of the BSM.
According to the Constitutional Court of the Slovak Republic, one can agree with the Supreme Court of the Slovak Republic that the execution of a contractual settlement of the BSM before its extinction contradicts the mandatory provision of Section 149 of the Civil Code (only the subject disposition ex post is permitted) and therefore the legal fixation of such a substantively premature and prohibited solution by means of an agreement on a future agreement, i.e., on the basis of the formal elimination of the material purpose of the legal institute in question, also contradicts this provision.
The Constitutional Court of the Slovak Republic further states that although one can agree with the complainant that the conclusion of an agreement on a future agreement on the settlement of the BSM during its existence does not yet result in its settlement, however, the essence and purpose of an agreement on a future agreement (including the one through which the settlement of the BSM is to take place) is the completion of the entire contractual process in the form of the conclusion of the implementation contract, from which it follows that the legal relationship constructed by the agreement on a future agreement must be understood in its organic unity (despite the fact that the creation of rights and obligations arising from it is conditionally multi-stage), and thus also in the context of obligations in the future arising from the implementation contract. According to the Constitutional Court of the Slovak Republic, the connection of the agreement on a future agreement with the implementation contract lies in the fact that the agreement on a future agreement creates a strong substantive legal position for the entitled party (enforceable also through public authorities) to complete the creation of the legal relationship from the implementation contract, as well as the subsequent enforceability of rights arising from the future contract. In other words, the implementation contract is merely the completion of the process anticipated and prescribed with legal bindingness (in the event of the fulfillment of the condition of the extinction of the BSM) by the agreement on a future agreement.
But if you belong to that part of the professional public that prefers rather the principle of autonomy of the will of the participants (spouses), you might be pleased that the proposed wording of the new Civil Code already counts, among other things, with the possibility for spouses to conclude an agreement on the settlement of the BSM (or, under the new term, “joint property of spouses”) during the marriage (e.g., during divorce proceedings) with the fact that it will become effective on the day of the dissolution of the marriage or on the day of the legal force of the court decision on the cancellation of the joint property of spouses.
