REGARDING Declaration under Art. 26 of the Family Code QUESTION: When one of the heirs of an inherited apartment has an address registration of the inherited apartment, but has been living abroad for many years, his wife – a Filipina also has an address registration at this address together with their minor children and has also been living abroad for many years (the whole family lives abroad), that is, the spouses do not have a registered separation regime, does the wife have to sign a Declaration under Art. 26 of the Family Code They come to Bulgaria for 1-2 weeks once every 1-2 years. P.S. The heirs of the property are three adults.
ANSWER: This question is extremely important in real estate transactions, since Art. 26 of the Family Code (FC) aims to protect the family from being left without shelter.
In short: In the described situation, the wife most likely DOES NOT have to sign a declaration under Art. 26 of the Civil Code, but there are some subtleties that the notary will take into account.
Here's how things stand according to the law and practice:
What does Art. 26 of the Civil Code say?
This text requires the consent of the spouse (by declaration or signature of the contract) when selling a property that is a "family home", even if it is the individual property of only one spouse (for example, acquired by inheritance).
Why is a declaration probably not needed in your case?
- Lack of "family home" status: For a property to be a "family home", the family must actually live in it and it must satisfy their household needs. Since the family has been living abroad permanently for many years, this apartment is not their family home within the meaning of the law.
- Address registration is not decisive: Address registration in itself is an administrative fact. What is important is actual use. If they only come for vacations (1-2 weeks), the property is not the center of their life together.
- Ownership of another home: If the spouses have another home (in this case abroad) where they live permanently, the protection of Art. 26 of the Civil Code is no longer available.
How will the Notary react?
Although a declaration is not required by law, notaries often play it safe. Here is what can happen:
The most common scenario: The Notary will require the heir spouse to declare in the notarial deed itself or in a separate declaration that the property is not a family home within the meaning of Art. 26 of the Civil Code.
Proof of abroad: It may be necessary to prove that the family lives outside the country (e.g. with rental contracts, employment contracts or simply through a certificate of entry/exit from the country, although the latter is rare).
Important clarification: Since the wife is Filipino, if it is decided to sign a declaration, it must be translated by a sworn translator, and if it is signed abroad – it must undergo the appropriate certification (apostille or consular certification), unless it is signed in person before a Bulgarian notary.
Summary of the situation
Since there are three heirs and the property is jointly owned, the heir-husband sells his ideal share. Since the family does not reside there, the property does not have the character of a family home and the wife's consent is not a legal requirement for the validity of the transaction.
