Tasinkoprivilegin suojavaikutus ja osituksen moite
Avainsanat:
avioliitto, ositus, osituksen moite, tasinko, tasinkoprivilegi, eloonjäänyt puolisoAbstrakti
Lakimies-aikakauskirjan nuorten kirjoittajien palkinto 2022
Surviving spouse’s retention privilege in the distribution of matrimonial assets and its effectiveness during court proceedings
The article re-examines a classic question of matrimonial property law, that is, under which conditions does the surviving spouse’s privilege to retain assets in the distribution of matrimonial assets (and not hand them over to the heirs of the first-deceased spouse) stay in effect if the surviving spouse also dies before the distribution has become res judicata. In the light of two preliminary rulings by the Supreme Court (KKO 2001:12 and KKO 2017:87), the author limits her examination to situations where the primary distribution of matrimonial assets has been completed but it has then been contested in court proceedings and the surviving spouse dies while these proceedings are still pending.
Drawing from an interpretation of section 103(2) of the Finnish Marriage Act, the author proposes that the privilege provision, whose main effect is to protect the financial security of the surviving spouse, also has another effect: She designates this its process-streamlining effect. The author concludes that it is justified that the process-streamlining effect applies both during the lifetime of the surviving spouse and after his or her death. Accordingly, the author argues that the surviving spouse’s retention privilege does not lapse merely because he or she dies and the outcome of the distribution of assets changes as a result of the court proceedings.
The author’s argument can be distinguished from the precedent ruling KKO 2001:12 in that she makes a distinction between situations where the surviving spouse dies before the primary distribution has been completed and where he or she dies after completion, but while court proceedings on that distribution are still pending. The author suggests that there may be a need for legislative work so that the issue of effectiveness of the retention privilege can be addressed in the light of new research data.
