Core:

The sales agreement (formally written as a preliminary contract) in the case at hand was not the basis for the transfer of property ownership rights to the property, but it was the legal basis for the seller's claim for payment of the remaining purchase price and for the buyer's claim to conclude a disposal transaction (issuance of land registry approval) as a property obligation right, which was part of the joint property of the spouses. In other words, the realization of property rights was important only in terms of (property rights) form of this property. However, in an economic (property) sense, the apartment has already passed into the legal sphere of the spouses during the marriage.

The described property right, after the breakdown of the life community, was included in the property right in accordance with the principle of real subrogation. According to the second paragraph of Article 51 of the ZZZDR, with the divorce (and according to established judicial practice even before, with the termination of the life and economic community), the joint property of the spouses ceased to be created, but it continued to exist until the division and could be transformed. In judicial practice, the most frequently discussed cases of transformation were those where one of the spouses sold an item or a right from the joint property after the divorce (or termination of the property community) and used the purchase price to buy other property, denying its legal nature of joint property. In the literature and in judicial practice, the position has been formed that also the property, which is acquired after the divorce (termination of the property community) from joint funds, belongs to the joint property. The distinguishing circumstance, that in the case at hand the defendant did not alienate the common property obligation right, but rather "used" it to acquire ownership rights, is not an obstacle for the use of the stated position. It is justified by the direct connection and continuity between the properties before and after the transformation as a crucial precondition of subrogation.

VSRS Judgement II Ips 58/2022, from 07. 12. 2022, published on the website of the Supreme Court of the RS (link).