One of the most frequently asked questions by our clients during divorce proceedings concerns what exactly belongs to a spouse in relation to a company that was undoubtedly founded using the joint property of the spouses during the marriage, despite the fact that the spouse in question formally and legally does not hold the status of a founder or is not registered as the owner of a share in that company. In other words, the founding contribution amounted to 1 euro, and the company is now worth millions—what rights does each spouse have?
Below, we refer to the relevant legal provisions, followed by examples from court practice to clarify this dilemma, including whether a spouse can be recognized as a co-founder based on a contribution made to the company from joint marital property.
Namely, according to the Family Law of Montenegro, spouses may have separate and joint property. Separate property is the property acquired by a spouse before marriage, as well as property acquired during the marriage through inheritance, gift, or other forms of non-onerous acquisition. On the other hand, joint marital property refers to property acquired through work and based on work during the course of the marriage, including income derived from such property. The Family Law further provides that income from separate property obtained through the spouses’ labor, property acquired through the use of intellectual property rights, insurance benefits, and even lottery winnings acquired during the marriage are considered part of the joint marital property.
Furthermore, spouses may divide their joint property by mutual agreement, determining shares in the entirety of the property, in a specific part, or in individual items. They may also agree that each spouse receives specific items or rights from the joint property, or that one spouse pays the other the monetary value of their share. In the absence of an agreement, joint property is divided equally. In case of a judicial division, the court will divide the joint property based on the contribution of each spouse, provided that one spouse proves their contribution was clearly and significantly greater than the other’s.
Thus, the Family Law does not explicitly regulate shares in a company as joint marital property, nor the method of dividing such shares in the event of divorce.
According to Company Law, Article 52 stipulates that the assets of a company consist of ownership rights and other property rights representing the contributions of its members, and assets acquired through business operations.
Article 279 of the Company Law provides that a share in a company is acquired by paying a contribution, and the size of the share corresponds to the value of the contribution, unless otherwise stipulated by the founding act or a unanimous decision of the assembly in the case of subsequent contributions. Additionally, a company member may only hold one share, representing their percentage of the company’s capital.
In the judgment of the Basic Court in Podgorica P. no. 162/11 dated 27th February 2012 (confirmed by the Supreme Court of Montenegro judgment Rev. no. 914/12 dated 01st December 2012), the court considered the plaintiff’s claim for co-ownership of ½ of a share in a single-member limited liability company, on the grounds that it was acquired during the marriage. The court concluded that the claim was unfounded, stating that a spouse may only assert a contractual (obligatory) claim proportionate to their contribution toward acquiring joint property that was used as the founding capital of the new company. The court emphasized that there was no agreement between the spouses at the time of the company’s formation, nor was the plaintiff involved or a signatory in the founding decision, and she did not contribute the legally required capital to the company. Based on these facts, the court concluded that the plaintiff could not acquire ownership or management rights in the company, as these belong solely to the registered founder. Therefore, a spouse cannot acquire founder status through capital invested in the company from joint marital property.
By registering the company in the Central Register of Business Entities, all legal effects of the founding act are fully realized, primarily in the sense that the newly formed company acquires legal personality and subsequently gains ownership rights over the contributed capital. Thus, by operation of law, the contribution from joint marital property becomes the property of the company, excluding ownership rights of both the contributing spouse and their marital partner.
Although the court did not explicitly cite legal provisions, this interpretation aligns with Article 52, paragraph 1 of the Company Law, which provides that the assets of a company include ownership and other property rights representing the members’ contributions and assets acquired through business operations.
Following the established court practice, it is concluded that a legal claim should be formulated as a contractual (obligatory) rather than a proprietary (real) claim. This means that a spouse who is not a founder or registered owner of a company share has only the right to claim the monetary equivalent of their contribution to the capital invested in the company, provided they prove their contribution to the joint property.
This legal position was reaffirmed by the Supreme Court of Montenegro in judgment Rev. no. 392/16 dated 28th April 2016, where the court also stated that a spouse’s consulting role in acquiring company shares does not provide grounds for acquiring ownership or management rights in the company.
The reason we emphasize the court’s views in the judgments of the Basic Court in Podgorica P. no. 162/11 dated 27th February 2012 and the Supreme Court of Montenegro Rev. no. 392/16 28th April 2016 is that the courts have consistently maintained that the spouse of the company founder may assert only a contractual claim. This view has been confirmed in more recent decisions as well—Judgment of the High Court in Podgorica Gž. no. 2893/22 dated 17th December 2024 and Judgment Gž. no. 4773/22 dated 22nd September 2023.
This judicial approach—whereby a spouse who is not the founder or shareholder is denied a proprietary claim and granted only a contractual claim—also results in the dismissal of motions for interim measures, even when such motions seek to prohibit the disposal of ½ of the company share. This inevitably causes potential harm to the claiming spouse.
From the above, it follows that, based on current laws and judicial practice in Montenegro, a spouse who is not formally registered as a founder or shareholder in a company cannot assert a proprietary claim to that share, even if the capital invested was from joint marital property. That spouse may only seek the monetary equivalent of their contribution through a contractual claim against the other spouse, provided they can prove their contribution to the acquisition of joint property.
However, the essence remains that even when dealing with joint marital property, once such property is contributed to a company, it becomes company property. The shareholder gains ownership and management rights proportionate to the share size. Considering this, we conclude that, when dividing joint marital property, the value of the share at the time of division should be assessed, not just the original founding contribution.
Ultimately, we make sure to advise our clients in a timely manner about the current judicial practice, even if we do not fully agree with it. We dare to conclude that a shared founding contribution should result in a joint share in the company, and that the division of joint marital property in this context should not be limited solely to the division of funds contributed as founding capital.
By Amra Ademovic, Partner, and Mina Coguric, Associate, JPM Partners Montenegro