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The impact of marriage in the property rights of spouses has been recognized since Roman law and nowadays remains a principle well established under each European legal system. Under Kosovo law, marriage creates different legal consequences between spouses including for their property rights. The current property regime of spouses under the Law on Family establishes rules on individual ownership and joint ownership. However, it does not recognise the contract for the regulation of the property regime of spouses. This has created problems with regard to the separation of the property after the marriage ceases. Contrary to this, under Kosovo Draft Civil Code – Book 4 on Family, the property regime of the spouses has advanced including for the recognition of premarital and marital contracts. This paper discusses questions arising from the relationship between spouses that have an effect on property and are treated from a current law perspective and in line with the civil law codification that is occurring in Kosovo.

Kosovo is in the process of civil law codification. Civil law relationships are currently regulated by special laws. After the end of the war in 1999, Kosovo’s jurisdiction became complex due to the simultaneous application of different laws: the UNMIK regulations, previous laws, and the legislation adopted by the Assembly of Kosovo from 2001 onwards. Consequently, these circumstances have had an impact and caused different interpretations and inconsistent application of the laws in the same cases, which among other issues points to the need for codification. The lack of clear and uniform law implementation in court cases related to the civil law matters is also considered an issue that can be resolved by the harmonisation of civil law through a civil code. In other words, the drafting of a civil code will clean up the legal system from different laws in place. It will harmonize and bring Kosovo’s legislation closer to the international standards and best practices in this area of law, which will lead to better law implementation. In this paper, questions related to the approach and model of the civil code will be discussed. Further discussion will focus on the main general principles outlined in the General Part of the Civil Code approved by the Government on 29 December 2021, which is being regulated in Kosovo for the first time. The analyses in this paper are based on a review of literature, Kosovo legislation and references to the European countries’ legislation which are used as models for some parts of the Kosovo Draft Civil Code. Finally, some conclusions are drawn regarding the questions raised concerning the model of the civil code and the general principles included in the code.

No abstract

In most civil law jurisdictions, the contract is the most used derivative title for the transfer of ownership (movable and immovable property). Very often, the law of property and law of contract are seen as distinct and one can envisage their role from different legal perspectives. This is closely connected with the type of transfer system based on whether the (Austrian) causal system, (German) abstract system or (French) consensual system is applicable. Kosovo is in the process of civil law codification and the Kosovo Draft-Civil Code which has followed the application of the causal system of transfer of property and such an above mentioned interaction of these two branches of civil law is mandatory, and only with a common survey can the contractual transfer of property be illustrated. The aim of this paper is to focus solely on the influence of contract law rules in connection with the acquisition of ownership over movable and immovable property determined by Kosovo Draft-Civil Code.