In a divorce, the social parties of a limited liability company can raise two distinct questions: who belongs to the company from the perspective of the matrimonial regime and who will exercise the rights of a partner after the division? The fact that only one of the spouses appears in the constituent document does not solve the problem of the patrimonial value of the share.

When social parts can be jointly owned property

In the regime of the community of property, the assets acquired during the marriage by either spouse are, as a rule, common jointly owned property in common ownership. Article 349 of the Civil Code explicitly states that when common assets are used to acquire shareholdings, they may be common jointly owned property, although the status of partner is recognized to the spouse who contributed the most. To exercise the rights arising from common ownership, the spouses must appoint a common representative, in accordance with the law.

The analysis changes if the social assets were acquired before marriage, by inheritance or donation, or with values that replace a personal asset. These situations can fall into the categories of personal assets provided for in Article 340 of the Civil Code, but the origin and documentation must be verified. If the spouses chose separation of assets or a conventional regime, the matrimonial agreement also matters.

Asset value and the quality of being an associate

The common nature of the value of the social shares does not automatically transform the spouse not listed in the company into a voting partner, administrator or representative. The matrimonial division concerns the patrimonial relations between the spouses; the modification of the structure of the associates and the entry of the transfer are made in compliance with the Civil Code, Law no. 31/1990 and the articles of association. For an SRL, the transfer of the social shares to persons outside the company is subject to the rule in Article 202, paragraph (2) of the Companies Law, unless the articles of association provide otherwise. The concrete situation and the division solution must be analyzed together with the company documents.

Depending on the common assets, the established quotas and the legal possibility of assignment, the solution can be the assignment of one of the spouses’ share with payment of a share of the proceeds or the division in kind, if possible and in accordance with the company’s rules. There is no rule according to which the former spouse automatically receives half of the share capital or is forced to enter the company. The contribution quotas are established upon the dissolution of the community, in relation to the contribution of each spouse and, if applicable, with the common obligations.

How the participation is evaluated

The nominal value of the share capital or the share capital does not necessarily indicate the economic value of the company. Depending on the company, financial statements, assets and liabilities, cash flows, contracts, participations, commercial risks and any transactions close to the time of the valuation may be relevant. In a dispute, an accounting or valuation expertise may be requested with clear objectives and access to the necessary documents. The reference date and the valuation method are determined according to the legal framework and the circumstances of the case.

Unallocated profit belongs to the company, which has a separate patrimony from that of its shareholders. Dividends already distributed but not yet paid are a claim that must be examined separately; distributions and income received during the marriage are analyzed according to the matrimonial regime and the time at which they were born or became exigible.

Useful documents for division of property

  • the articles of association and the history of amendments, the register of shareholders and documents from the Commercial Register;
  • evidence regarding the date and source of the funds used to acquire or increase the shareholding;
  • financial statements, balance sheets, decisions regarding dividends, contracts and documents regarding assets or liabilities;
  • the matrimonial agreement, if any, and the documents showing the contribution of each spouse to the common assets.

A proper valuation separates the company’s assets from the spouses’ assets and distinguishes between the partners’ rights and the economic value subject to the community’s liquidation. The outcome depends on the matrimonial regime, the path of the funds, the constituent act, and the evidence administered in the division.

Official sources: Civil Code, especially Articles 339–349 and 355–357; Law no. 31/1990, articles 202–203.