Summary

The Family Law Act, which entered into force on 1 July 2010, has resulted in extensive changes in the property regime between spouses. Common property as a statutory type of matrimonial property regime under subsection 24 (2) of the Family Law Act differs from the joint property regime, which was in effect previously, in several respects despite the retention of the designation. The changes, however, have resulted in several issues for both those involved in legal relationships and those applying the law.
German legal literature has established that the close link between assets which occurs in the case of common property results in a situation where the termination of the property regime between spouses who have fallen out is only possible with great difficulty. Nor is the situation any more straightforward when a third party wishes to settle claims against joint property. It has been suggested that in the case of common property, where spouses have equal rights in managing their property, it is fundamentally impossible to identify a reasonable solution for the regulation of liability in the case of which balanced and sufficient protection is provided for the interests of both the spouse who is not the debtor and of the creditor.
In this article, the authors endeavour to work out whether this criticism of the common property regime is also justified in the case of Estonian family law. The discussion focuses on the protection of the interests of third-party −creditors of spouses−. Consideration is given to the issue of what options are provided for in the Family Law Act and other legislation for settling one’s claims against joint property and how this is secured in enforcement or bankruptcy proceedings.