saqarTvelos generaluri prokuratura

doqtoranta forumiIn practice, there arises the question: when a spouse demands to invalidate the real property purchaseagreement made by the other spouse, when such property was acquired during the period of marriage andconsequently is regarded as their joint property and in the public registry only one of the spouses isrecorded as an owner, which disposes of it, without consent of the other spouse, which regulations shouldprevail – of the material law, which state that the disposer is regarded as the owner, if he/she is recorded inthe public registry as such, with the exception of the case, when the purchaser was aware that the disposerwas not the owner and hence, the spouse, specified in the registry shall be regarded as sole owner of theproperty and his/her deal on disposal of the property does not depend from the will of his/her spouse.According to the regulations of the family law, on the property acquired jointly in the period of marriage andregistered in the name of one of the spouses, the ownership rights shall emerge for the other spouse as welland the deal made by the spouse registered as the sole owner of this property with the public registry shallbe invalidated, if there is established that the other spouse has not given his/her consent to such deal andthe person who has made such deal was aware of such absence of consent.In the law literature, there is no uniform approach to this issue. Some of the scientists regard that “thecourt gives preference to the general regulations of civil code, stipulating the fact of revealing of the realproperty owner through the public registry, thus reasonably protecting the interests of the third parties,though leaving the spouse without any protection, who, in accordance with the family law, has the samerights on the property as his/her registered spouse.” 16Eka Zarnadze does not agree with the above and she regards that it is unacceptable to make suchdecision on the case, with the prejudice to the interests of the spouse. “The fact of acquisition of realproperty during the period of marriage, when no marriage agreement is made, awards to each spouse theright to claim for the joint property and they may execute this right as at a time of acquisition, throughregistration as a co-owner, also afterwards, through amendment of the registration record. It would bereasonable that in the regulations of the family law of Georgian Civil Code there was clearly reflected thementioned contents, in particular, that the legal regime provides to each of the spouses, on the propertyacquired during the marriage period, on which the ownership relations are revealed from the public registry,the right of claiming for the joint property, which may be executed through registration with the publicregistry and joint ownership of the spouses shall be created on the given type of property only from themoment of registration with the public registry.” 17In the practice of Supreme Court, the priority is given to presumption that the data of public registry aretrue and full, thus recognizing the principle established by the legislation of various foreign countriesstating the following: Any person making the deal on such property acquired by the spouses, the nature ofownership relations is revealed from the public registry, may rely only on the information provided in thepublic registry, or, as Mr. Beso Zoidze explains: “it is unacceptable that the legal outcomes emerge for thethird persons, if the information conditioning such outcomes is not made public, in the established form,available for the counteragents”. 18Thus, for better protection of the interests of spouses and “correspondingly, the step intended for theirbetter regulation, is establishment of the rule of obligatory registration of the property rights provided forby the marriage agreement, dealing with the real property.” 19It would be desirable that in the provisions of Georgian Civil Code, regulating the marriage agreementsthere were reflected the requirements of obligatory registration.16Chikvashvili Shalva, Legal Problems of Disposal of the Property in Joint Ownership of the Spouses. Magazine“The Law” 2002, p. 44. I refer to: Eka Zarnadze “Some Peculiarities of Resolution of the Disputes on Managementand Disposal of the Real Property Acquired jointly, in the period of marriage”. Magazine “Overview of GeorgianLaw”, #10, 2007, p. 134.17See mentioned article by Eka Zarnadze, pp. 134-136.18See: Zoidze Besarion, Regime of Property relations of the Spouses, Magazine “Georgian Notariate:, 2002, p. 27.19See mentioned article by Eka ZArnadze, p 136.88