Property division in divorce: what the law excludes

Property division is one of the issues that most often causes disputes and dissatisfaction during divorce proceedings. Under Azerbaijani law, property acquired during marriage is generally considered the spouses’ joint property. However, the Family Code and a ruling adopted by the Supreme Court Plenum on March 12, 2024, define which assets are excluded from division and remain the separate property of one spouse.

Which possessions and assets are not divided in a divorce, and how are dowries, gold given at weddings, savings held in children’s names and privatized apartments treated under the law?

Lawyer Etibar Garayev told Operative Information Center-OMM that determining whether property is jointly owned depends on when and how it was acquired, its purpose and the terms of any agreement between the spouses. The expert outlined the assets excluded from division and their legal basis:

1. Property owned before marriage and assets received as gifts or inheritance: “An apartment, land, car or money that belonged to one spouse before the marriage is that person’s separate property. Assets received during marriage as gifts, inheritance or through other gratuitous transactions are also excluded from division. For example, an apartment inherited by a wife or land gifted to a husband remains that person’s property, even if it was received during the marriage.”

2. Dowries, wedding gold and personal belongings: “Dowry items given to the wife, as well as jewelry gifted specifically to one spouse during the marriage proposal, engagement or wedding, are considered separate property and are not divided. However, gold and jewelry bought with joint funds during the marriage must be divided as joint property, even if only one spouse uses them. Clothing and other personal belongings are not divided. Whether phones, tablets and laptops are personal items or used by the family jointly is also taken into account.”

3. New property purchased with funds from separate assets: “If the full cost of property purchased during the marriage was paid with money one spouse had before the marriage or inherited, the newly acquired property is also considered separate property. Buying a new apartment with proceeds from the sale of an apartment owned before marriage is one example. If joint funds were also used for the purchase, that contribution must be taken into account in the division.”

4. Children’s belongings and savings, and privatized apartments: “Clothing, school supplies and musical instruments belonging to minor children, as well as savings accounts opened in their names, belong to the children and are not divided; they are given to the parent with whom the children live. Likewise, if an apartment is transferred to only the husband or wife through the gratuitous privatization of housing, it does not automatically become joint property.”

5. Periods of separation and prenuptial agreements: “A court may consider property acquired during a period when the spouses had effectively ended their relationship and were living separately to be separate property. Assets designated as separate property in a notarized prenuptial agreement are also not divided, in accordance with the agreement’s terms.”

Etibar Garayev concluded by highlighting the burden of proof on the party making a claim and the exceptions:

“If the value of separate property increased substantially during the marriage through the spouses’ joint work or funds — for example, through major renovations — that property may be considered jointly owned. Saying ‘I bought it with my own money’ is not enough, because wages earned during marriage are joint income. In court, the party claiming that an asset is separate property must establish this conclusively with bank transfers, correspondence or written documents.”