Division of joint property of spouses and division of inheritance

Legal guide

automatic translation from Polish

Common property

Pursuant to the provisions of the Family and Guardianship Code, together with the moment of entering into marriage between spouses, a property community arises under the Act. This means that all items that were acquired during the marriage by both spouses or only one of them form joint property. The Code contains a list of examples of property that are included in the joint property. These are: remuneration for work and income from other gainful activities of each of the spouses, income from joint property as well as from the personal property of each of the spouses, funds accumulated on the open account or employee pension fund of each of the spouses, as well as the amounts of contributions recorded on pension sub-account. As can be seen, the most important element of joint property is the income of the spouses.

Spouses who do not want to create a statutory community may enter into a marriage contract, the so-called intercypt, which will allow to shape the matrimonial property regime in a different way than indicated in the provisions of the Family and Guardianship Code. Such a contract may be drawn up before or after the marriage in the form of a notarial deed.

Each of the spouses is entitled to joint ownership of items of joint property and to use them to the extent that is compatible with the joint ownership and use of things by the other spouse. During the statutory community, no spouse may request the division of joint property. He may not also dispose of or undertake to dispose of a share which, in the event of termination of joint ownership, falls to him in joint property or in individual items belonging to that property.

Both spouses are obliged to cooperate in the management of joint property, in particular to provide each other with information on the state of joint property, on the exercise of management of joint property and on obligations encumbering the joint property. Each of the spouses may independently manage joint property, unless the provisions below provide otherwise. Performance of management includes activities that relate to property belonging to joint property, including activities aimed at maintaining that property. Property items used by the spouse to practice a profession or to carry out a gainful activity are managed by the spouse. In the event of a passing obstacle, the other spouse may perform the necessary ongoing activities.

The spouse may object to the management of joint property intended by the other spouse, with the exception of activities in current matters of daily life or intended to meet the ordinary needs of the family or undertaken as part of a paid activity. An objection is effective against a third party if it was able to get acquainted with it before making a legal act.

The consent of the other spouse is needed to make:

  1. legal action leading to the sale, encumbrance, payable purchase of real estate or perpetual usufruct, as well as leading to the commissioning of real estate for use or taking benefits from it;
  2. legal action leading to the sale, encumbrance and payment of a right in rem relating to a building or premises;
  3. legal action leading to the sale, encumbrance, purchase and lease of an agricultural holding or enterprise;
  4. donations from joint property, except for small donations customarily accepted.

The validity of a contract that was concluded by one of the spouses without the consent of the other depends on the confirmation of the contract by the other spouse. The other party may set a spouse whose consent is required an appropriate date to confirm the contract; becomes free after the expiry of the time limit. A unilateral legal act carried out without the required consent of the other spouse is invalid.

If, on the basis of a legal act carried out by one spouse without the required consent of the other, a third party acquires the right or is released from the obligation, the provisions on the protection of persons who have entered into legal action in good faith with an unauthorized person shall apply accordingly. If one of the spouses refuses the consent required to perform the act, or if the agreement with him encounters obstacles difficult to overcome, the other spouse may apply to the court for permission to perform the act. The court grants permission, if the good of the family requires doing it. For important reasons, the court may, at the request of one of the spouses, deprive the other spouse of independent management of joint property; may also decide that to perform the actions specified in art. 37 § 1 cryo, permission of the court will be needed instead of the consent of the spouse. These provisions may be waived if circumstances change.

legal aid
The Law Office of Piotr Stączek Advocate

Wąwozowa 11, piętro 3, 02-796 Warszawa tel: 881 209 300 Fax: +48 22 448 09 97 www.staczek.com