1. Can ANAF ask for the partition?
Yes, but only under certain conditions. As a rule, joint property cannot be seized by the personal creditors of one spouse (Article 353(1) of the Romanian Civil Code). However, after enforcing against the debtor spouse's own property, that spouse's personal creditor may ask for the partition of joint property, "but only to the extent necessary to cover its claim" (Article 353(2) of the Civil Code).
The property divided in this way becomes separate property (Article 353(3) of the Civil Code). Tax enforcement may then target only the property allocated to the debtor spouse in the partition, or the equalisation payment due to them (Article 242(1) of the Romanian Fiscal Procedure Code).
2. What to check from the outset
The rules below concern the joint property of spouses married under the legal community property regime.
- The nature of the debt. Check whether the debt is a personal debt of one spouse or an obligation for which the spouses are liable with their joint property (Article 351 of the Civil Code: for example, obligations contracted together or those for the ordinary expenses of the marriage). Partition at the creditor's request under Article 353 concerns the personal debts of one spouse.
- Prior enforcement against separate property. The creditor must first have enforced against the debtor spouse's own property. The mere existence of the debt does not prove this condition.
- The scope of the partition. The creditor may ask for the partition only of the joint property needed to cover the claim. If the spouses own several joint assets, dividing all of them is generally not justified. Where there is a single apartment, the fact that the debt is smaller than the debtor spouse's share does not, in itself, prevent the partition of the whole apartment.
- Each spouse's share. The share is determined by each spouse's contribution both to acquiring the joint property and to meeting the joint obligations. Until proven otherwise, the spouses are presumed to have contributed equally (Article 357(2) of the Civil Code). A spouse claiming a larger contribution must prove it.
- The status of the property. Check the land register extract, mortgages and other encumbrances. In tax enforcement, the minimum living space occupied by the debtor and their family cannot be seized (Article 242(3) of the Fiscal Procedure Code), except for tax claims resulting from criminal offences (paragraph 4). This protection does not, however, make the entire apartment exempt from enforcement.
3. How the apartment is divided, and why it matters
The rule is partition in kind. An apartment usually cannot conveniently be divided in kind, so the court either allocates it to one spouse, with an obligation to pay the other an equalisation payment, or orders its sale and the division of the price (Article 676 of the Civil Code). When allocating the property, the court takes into account, as appropriate, the parties' agreement, the size of their shares, the nature of the property, the parties' residence and occupation and other similar circumstances (Article 988 of the Romanian Code of Civil Procedure).
If the apartment is allocated to the debtor spouse, the other spouse becomes entitled to an equalisation payment. To secure it, the law grants them a statutory mortgage over the apartment (Article 2386 point 5 of the Civil Code). If the apartment is later sold in enforcement proceedings, recovering the equalisation payment depends on the registration of the mortgage in the land register, the ranking of the security interests and the price obtained. The mortgage should therefore be registered as quickly as possible.
One solution may be allocating the apartment to the debt-free spouse (Article 990 of the Code of Civil Procedure). That spouse pays the equalisation payment, which ANAF may garnish to settle the debtor spouse's debt (Article 236 of the Fiscal Procedure Code). Whether the request is granted depends on the circumstances of the case, including the ability to pay the equalisation payment. If it is granted, the family may keep its home and the creditor may recover its claim in full or in part.
4. Deadlines and litigation strategy
- Defences, evidence and the request for allocation should be prepared from the first-instance court. New claims cannot be made on appeal (Article 478(3) of the Code of Civil Procedure), and a request made only at that stage risks being challenged.
- The partition judgment can only be challenged by appeal, within 30 days of being served (Articles 995(3) and 468(1) of the Code of Civil Procedure). The interlocutory ruling admitting the partition in principle can only be challenged together with the judgment on the merits (Article 987).
- Missing the deadline generally results in the loss of the right. Reinstatement of the time limit is possible only under strict conditions, for duly justified reasons (Article 186 of the Code of Civil Procedure).
5. Documents to prepare
- the deed of acquisition of the apartment and the land register extract;
- any marriage contract;
- evidence of each spouse's contribution to acquiring the property and to the joint obligations;
- the enforcement documents received from ANAF: the enforceable title, payment notices and garnishments;
- the statement of claim and the documents from the partition case file.
Conclusion
A partition requested by ANAF does not automatically mean losing your home. The legal conditions must be checked carefully, and the debt-free spouse has their own arguments and tools, from the request for allocation to the mortgage securing the equalisation payment, which must be used in time.