Article 1400 CC, as replaced by article 15 of law 1329/ 1983, provides that : “If marriage is cancelled or declared void and the other spouse’s property has, after the marriage had taken place, been increased, the other spouse, given that he/ she in any way has contributed to that certain increase, he/ she has the right to claim and receive part of that increase which has been the outcome of his/ her contribution. It is deducted that such contribution rises up to one third of that increase, unless a larger or a lesser or no contribution is properly proven. In this certain increase of the spouses’ property there shall not be any estimation of what they have gained due to a donation, inheritance or succession or will regarding the gains from such causes”. The claim to participate in the gains shall also be recognized in case of the spouses’ separation which had been together for more than three years. The aforementioned arrangement mostly serves the idea of justice (see Stathopoulos, in CC Georgiades-Stathopoulos, articles 1400-1402, nr. 1), in light of the fact that, during the time of marital co-existence there is a de facto commonality between spouses, therefore it is irrelevant whether the estimation of the acquired property valuable within the personal property of one or the other spouse truly depicts the effort a spouse has made in order to get it.
However after the termination or the declaration of marriage as void, or after the separation lasted more than three years has taken place, the breakdown of the spousal financial community and the distribution of the properties should be proportional to any spouse’s contribution as such (see Civil Law by Georgiades, The claim to participate in the gains while a separation of spouses is in process, Armenopoulos mag. 1995.573). The claim to participate in the gains is both tortuous and self-centered, it hence emerges from the moment the marriage is terminated or cancelled irrevocably (see Supreme Court 1030/ 93 Hel. Just. Mag 1994.1571), or the three-year separation between the spouses is concluded. Before such time limitations have been reached accordingly, the spouse only bears an expectation right, which is by no means equal to the right in question, thus the future proprietor is not able to proceed in the future with a relevant law suit in order to get that claim fulfilled or get it recognized according to article 70 CPC (see Supreme Court 87/ 1998 Hel. Just. Mag. 1998.1281, Ath. Appel. 9274/ 96 Hel. Just. Mag. 1998.865 and 1997.653).
In this stage of expectation and as soon as the relationship between the spouses are disturbed to such point that the option of having the marriage terminated is possible, exactly because it is much too expected the bearing the responsibility spouse to proceed to fraudulent cash outs or even in true or fraudulent payments towards third parties of properties of his/ hers, in a way that in the end the remaining property to be merely miniscule or in any case not substantially increased in relation to the initial property of his/ hers, something which would ultimately lead to a potential danger regarding the satisfaction born by his until now counter-spouse, the legislator has provided to the claimant spouse to his protection:
a. Separate tortuous claim regarding the provision of safety, according to article 1402 CC, which provides: “By reserving the provisions of article 1262 nr. 4, any of the two spouses has the right, in case a divorce action has been followed or of that of the proclamation of marriage as void, or in case he/ she has filed a lawsuit claiming what is provided by article 1400, to ask from the counter-spouse or his/ her heirs the provision of safety, if it is presumed because of this behavior that this claim of his/ hers has been endangered”. What can be asked for as a collateral security according to this latter article could be: a) mortgage, b) pledge, c) guarantee set by a guarantor or payment guarantee via cheque of a reliable bank or and d) to have a restricted confiscation in place of a sort regarding the indebted spouse (see First Ins. C. Katerini 6/ 2003, Armenop. Mag. 2003. 507, 508). According to provision of article 582 par. 1 CPC, according to the special procedure of articles 683 to 703 Court houses, in case of emergencies or in order to avoid an upcoming danger, could order interim measures in order to get or safeguard a right, or the arrangement of a situation and have them reformed or revoked. The right could be dependent on a condition or a deadline.
It is according to this provision deducted that the right whose temporary protection needs to be safeguarded, should have been already born and probably under (contingent or precedent) condition, needless to say though not under any legal condition (condition juris). If it is under any legal condition, which essentially means that it is not still ripe as a right (non-existent right), it cannot yet be even temporarily protected according to article 69 CPC, exactly because the provision of paragraph 1 line e’ of the said article refers to the case of tortuous suspensionary conditions and not of judicial conditions.
b. Collateral ensuring by means of property, according to article 1262 nr. 4, by reserving the option to have a mortgage notice in place on the indebted spouse’ s properties, based on a deed issued by law. This deed provides the beneficiary spouse a right to have a mortgage notice on the indebted spouse’ s properties, or, possibly, on his/ hers heirs’, in order to safeguard his/ her claim as derived from article 1400 CC, regardless of whether that claim shall be ripe or not (see Supreme Court 87/ 1998, Ath. Appel. 9274/ 1996 , Stathopoulos, nr. 42, page 308)