Afət Ziyadqızı
Property division is one of the issues that causes the most disputes and dissatisfaction during divorce proceedings. Under Azerbaijani law, property acquired during marriage is considered the spouses’ joint property, but the Family Code and a March 12, 2024, decision of the Supreme Court Plenum clearly define assets that cannot be divided and belong exclusively to one spouse.
Which items and assets are not divided in a divorce, and how are the legal status of dowry, gold given at weddings, savings held in children’s names and privatized apartments determined?
Labour rights expert Etibar Garayev told Operative Information Center-OMM that the time and source of acquisition, the purpose of the property and the terms of any agreement between the parties are taken into account when determining whether property is jointly owned. The expert outlined the assets that cannot be divided and their legal grounds:
1. Property owned before marriage and property received as a gift or inheritance: “An apartment, land, car or money belonging to one of the parties before the marriage is that person’s separate property. Property acquired during marriage as a gift, inheritance or through another gratuitous transaction is also not divided. For example, an apartment inherited by a wife or land given to a husband remains the sole property of that person, even if acquired during the marriage.”
2. Dowry, wedding gold and personal belongings: “Dowry items given to a wife and jewellery gifted specifically to one spouse at a matchmaking ceremony, engagement or wedding are considered separate property and are not divided. However, gold and jewellery purchased with joint funds during marriage must be divided as joint property, even if used by only one spouse. Clothing and other personal belongings are not divided. Whether phones, tablets and laptops are personal or for the family’s shared use is also taken into account.”
3. New property purchased with separate assets: “If the full cost of property purchased during marriage is paid from one spouse’s premarital or inherited funds, the new property is also considered separate property. One example is buying a new apartment with the proceeds from selling an apartment owned before marriage. However, if joint funds were also used for the purchase, that contribution must be taken into account during division.”
4. Children’s belongings and savings, and privatized apartments: “Clothing, school supplies and musical instruments belonging to minor children, as well as savings deposited in their names, belong to the children, are not divided and are given to the parent with whom the children remain. Likewise, if an apartment is transferred to only the husband or the wife during the gratuitous privatization of housing, it does not automatically become joint property.”
5. Period of actual separation and marriage contracts: “A court may consider property acquired during a period when the spouses had effectively ended their family relationship and were living separately to be separate property. Property designated as separate in a notarized marriage contract is also not divided, in accordance with the contract’s terms.”
Expert Etibar Garayev concluded by stressing the burden of proof on the party making a claim, as well as the exceptions:
“If the value of separate property increased significantly through the spouses’ joint work or funds during the marriage—for example, through major renovations—the property may be considered jointly owned. Simply saying ‘I bought it with my own money’ is not enough, because salaries earned during marriage constitute joint income. In court, the party claiming that property is separate must prove this conclusively with bank transfers, correspondence or written documents.”
