SPOUSES · OWNERSHIP · PROCEEDS
One spouse’s bankruptcy does not automatically make the other spouse bankrupt. However, common property may be affected even where registered only in the non-debtor spouse’s name.
Legal provisions checked on 6 September 2026.
Separate and common property: evidence matters
| Property source | General regime | Evidence |
|---|---|---|
| Before marriage | Separate property | Date and payment |
| Gift to spouse | Separate property | Gift and transfer |
| Inheritance | Separate property | Inheritance certificate |
| Purchase in marriage | Usually common | Source of funds |
| Separate funds in shared purchase | Share dispute possible | Money trail |
Do not rely only on the property register
Title in one name does not override the statutory marital regime.
Evidence the separate source
Funds must be traceably connected to the acquisition.
Assert rights before realization
Restoring the property position is harder after sale.
Will half the asset or the entire asset be sold?
Article 213.26(7) addresses sale of property held with a spouse, including a former spouse, in the bankruptcy case. The general approach is sale of the asset followed by allocation of proceeds: the debtor’s corresponding share enters the estate and the remainder is intended for the spouse. Do not assume that only an abstract half of a car will be auctioned.
Where common obligations exist, the spouse’s proceeds are paid after the applicable common obligations are satisfied from that spouse’s funds. A promise that half the price will immediately be returned is therefore unreliable. Check shares, security interests, common debts and the allocation rules.
When can a debt be common?
Under Article 45 of the Family Code, marriage alone does not turn one spouse’s debt into a common obligation. Relevant circumstances include a court finding that everything received under one spouse’s obligation was used for family needs. Guarantees, joint and several liability and security interests require separate assessment. Labels such as “the husband’s loan” or “family loan” do not replace evidence of how funds were used.
Example: a car registered to the wife
A car was purchased during marriage with common funds and registered to the wife, while the husband enters bankruptcy. Registration alone does not establish exclusion. If the wife proves payment from her separate inherited funds, the assessment may differ: a traceable connection between inheritance and purchase is needed. These are different facts, not a guarantee that the car will be retained.
What should the spouse do before auction?
Ask the manager for information about the asset and proposed sale. Provide acquisition records, funding evidence, marriage and division documents, and security records. Raise objections in the appropriate dispute rather than waiting until auction proceeds are distributed. The law allows the spouse to participate in questions concerning sale of common property.
Separate-property evidence may include pre-marriage acquisition, inheritance or a gift specifically to that spouse. Mixed funding, substantial common investment or a disputed division requires individual assessment. Divorce and a marriage agreement do not themselves guarantee protection against creditors; do not fabricate documents or transfers.
Protecting Spouse Property
One spouse bankruptcy · Property after divorce
FAQ
Does the husband’s bankruptcy make the wife bankrupt?
No. Rights in common property and common obligations may nevertheless be considered in his case.
Can a spouse’s separate inheritance be taken?
Inheritance is separate property under Article 36 of the Family Code. Prove its origin and check for any separate dispute over its legal regime or the spouse’s own obligations.
Does divorce before bankruptcy prevent sale of common property?
Not automatically: Article 213.26(7) expressly covers former spouses. The ownership regime, any completed division and creditors’ rights matter.
Legal sources
Family Code Article 36 addresses separate property; Article 45 addresses enforcement and common obligations; Bankruptcy Law Article 213.26(7) addresses sale and proceeds allocation.
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