Division of joint property of spouses and division of inheritance

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VI 2024

Divorce with division of property


Pursuant to the decision of the Supreme Court of June 16, 2016 (V CZ 25/16), the division of the parties' joint property in a divorce judgment does not result in excessive delay of the proceedings, not only when there is no dispute between the parties as to the composition and method of division of this property. , but also when the clarification of the circumstances disputed between the parties, or circumstances that the court is obliged to determine ex officio, requires conducting evidentiary proceedings within a limited scope in terms of subject matter and time. The decision whether or not to consider a party's request for the division of joint property in the event that such a division would cause excessive delay in the proceedings is included by the court - depending on the circumstances - either in a separate decision issued in the course of divorce proceedings or in the operative part of the divorce judgment. . It is not subject to a separate appeal.

2. The division of joint property is subject to the optional jurisdiction of the divorce court and former spouses may divide it after the termination of joint property in non-litigious proceedings (Articles 566-567 of the Code of Civil Procedure).


V 2024

Retroactive effect of the decision establishing separation of property


Pursuant to the decision of the Supreme Court of August 29, 2023 (I CSK 4573/22), the decision establishing separation of property should be given retroactive effect in rare and exceptional situations. Community of property is a constitutional feature of marriage. Therefore, the decision to abolish it may only be made in exceptional circumstances, and in no case earlier than on the date on which the existence of important reasons within the meaning of Art. 52 § 1 of the Family and Guardianship Code The Court's assessment of these circumstances each time depends on specific factual circumstances, as it must be individualized.


IV 2024

Division of property and division of inheritance and tax on civil law transactions (PCC)


Pursuant to the Act of September 9, 2000 on tax on civil law transactions, only the division of the inheritance is subject to taxation, therefore PCC is not payable on the division of joint property (Article 1).

Moreover, PCC must be paid on the division of the estate only in the part relating to repayments and subsidies (Article 1(1)(f). The tax obligation applies to the entity purchasing things or property rights in excess of the share in the inheritance or joint ownership (Article 4(5)). The tax base is the market value of the thing or property right acquired above the value of the share in the inheritance (Article 6(1)(5)). The standard tax rate is 1%. However, in the case of transfer of ownership of real estate, movable property, perpetual usufruct right, cooperative ownership right to a residential premises, cooperative right to a commercial premises and resulting from the provisions of cooperative law: the right to a single-family house and the right to premises in a small residential house - 2% (Art. 7 section 1 point 2)


III 2024

Division of things


In accordance with the decision of the Supreme Court of May 6, 2021 (V CSKP 29/21), providing for the "division of things", - the provision of Art. 211 CC it involves division in the physical sense, i.e. by creating two or more new things from one that already exists. Thus, the division each time leads to the creation of a new legal good, which - as a rule - after the abolition of co-ownership is the subject of the exclusive right of one of the existing co-owners. Such a division should be made when it does not conflict with the provisions of the Act or with the socio-economic purpose of the item and does not result in a significant change of the item or a significant reduction in its value. In such cases, the item may be awarded, depending on the circumstances, to one of the co-owners with the obligation to repay the others, or sold in accordance with the provisions of the Code of Civil Procedure. (Article 212 § 2 of the Civil Code).


II 2024

Construction of a building on my wife's plot


Pursuant to the decision of the Supreme Court of February 15, 2023 (I CSK 6372/22), in a situation where, during the marriage, a building was erected on real estate constituting the personal property of one of the spouses using the funds of the joint property, the other spouse may demand transfer to himself the ownership of this property in the part corresponding to his share in the joint property.

The claim for redemption may also be made in proceedings for the division of joint property as a method of settling expenses. It is also assumed that the court may decide on a claim for redemption in proceedings for the division of joint property not only in a final decision, but also in a preliminary decision (case no. 318 in connection with case 13 § 2 of the Code of Civil Procedure), or in a partial decision (case no. 317 in connection with matters 13 § 2 of the Code of Civil Procedure).

However, the court may settle the outlay from the joint property on the personal property of one of the spouses by pursuing a redemption claim only at the request of one of the spouses. However, he is not bound by such a request and may settle the expenditure in a different way, i.e. by awarding an appropriate amount.


I 2024

Differentiation of requirements regarding the description of a claim for reimbursement of expenses when dividing the spouses' joint property


In the justification for the decision of December 21, 2022 (reference number I CSK 3142/22), the Supreme Court drew attention to the differences in requirements in Polish law regarding the description of claims for reimbursement of expenses when dividing marital property - different requirements apply to claims for reimbursement of expenditures from joint property on personal property, and others - much more stringent - for claims for reimbursement of expenditures from personal property on joint property.

By the said decision, the Supreme Court refused to accept for consideration a cassation appeal filed by a participant in the proceedings regarding the division of joint property. The participant argued that the complaint should be accepted for examination due to its obvious justification. He argued that the court examining the subject matter of the case erroneously ruled on the settlement of expenditure from the spouses' joint property for the participant's contribution to the civil partnership (later transformed into a general partnership). In the application, the applicant included a demand for ¼ of the income from the sale of the company's enterprise and maintained this demand during the proceedings. According to the participant, however, the request in question should not be accepted because it did not satisfy the requirement arising from Art. 187 § 1 point 1 and 2 in connection with joke. 13 § 2 of the Code of Civil Procedure (hereinafter referred to as the Code of Civil Procedure) the requirement to precisely specify the request.

The Supreme Court found the participant's claim mentioned above to be groundless. He emphasized that in accordance with Art. 45 § 1 sentence 1 of the Family and Guardianship Code (hereinafter: Family and Guardianship Code), each spouse should reimburse the expenses and outlays made from the joint property for his or her personal property. Taking into account that the composition and value of joint property subject to division are determined by the court ex officio (pursuant to Article 46 of the Code of Civil Procedure in connection with Article 567 § 3 in connection with Article 684 of the Code of Civil Procedure) and that the claim for reimbursement of expenses from joint property to personal property is part of joint property, it should be stated that the claim for reimbursement of expenses is subject to the above-mentioned principle regarding the determination by the court of the composition and value of joint property ex officio. It follows that the participants in the proceedings are not obliged to formulate a request for settlement of expenses and outlays made from joint property to personal property in the strict manner provided for in Art. 187 § 1 point 1 and 2 in connection with joke. 13 § 2 of the Code of Civil Procedure In established judicial practice, it is considered sufficient to support such a request if a participant in the proceedings indicates that a specific outlay (in cash or in kind) and demonstrates that it has been made. Due to the above, the description of a claim for the refund of the said expenditure is subject to much less stringent requirements than the description of a claim for the refund of expenditure made from personal property to joint property, to which the regulation under Art. 187 § 1 point 1 and 2 in connection with joke. 13 § 2 of the Code of Civil Procedure and which claim is not included in the joint property of the spouses.

The Supreme Court emphasized that such a distinction in the requirements applicable to the settlement of expenditures when dividing joint property expresses the idea of protecting joint property that has been reduced by expenditure on the spouse's personal property.


XII 2023

Expenditures on the spouse's personal property in the perspective of division of joint property.


The issue of expenditure on the spouse's personal property was dealt with by the Supreme Court (Decision of the Supreme Court I CSK 3142/22 of December 21, 2022).

Community property is still the most frequently chosen solution when it comes to the form of marital property regime. In a sense, this is the solution preferred by the legislator, regulated as basic and, in a sense, preferred by him.

However, community of property, once established, does not have to last forever. In accordance with the provisions of the Family and Guardianship Code, it may be abolished in various ways, e.g. by the spouses introducing a contractual property regime already during the marriage, by introducing compulsory separation of property or by the court at the request of either spouse for important reasons. The termination of community of property also results in a judgment of separation or divorce.

Upon termination of the community of property, in accordance with Art. 45 §1 and 2 of the Family Code i. o., when dividing joint property, settlements should be made between spouses to take into account the spouses' contributions to the joint property. It certainly doesn't raise any doubts. However, it should be emphasized that this type of settlement should be made the other way around. The increase in the spouse's personal property should be taken into account at the expense of the joint property.

To illustrate the Court's statement with a simple example:

If the wife has an apartment before the wedding (i.e. it is part of her personal property), but after the wedding she renovates it with the money earned by her and her husband, in the event of division of joint property, the husband will be entitled to demand not only a refund of the nominal outlay, but also an increase in the amount of his share in the property by the appropriate part of the value by which the value of his wife's apartment increased as a result of the renovation

In the discussed case, the District Court ruled on the settlement of expenditure from the spouses' joint property for the participant's contribution to a civil partnership, which was then transformed into a general partnership, without the applicant submitting an appropriate request; in the application and in the further course of the proceedings, the applicant demanded 1/4 of the income from the sale of the company's enterprise. Moreover, the Court - according to the participant: erroneously - assessed that the amount to be settled is the amount equivalent to the participant's share in the general partnership on the date of termination of the community of property, which is far different from the amount actually paid by the participant as a contribution to the civil partnership, which was then transformed into a general partnership. .

According to the Supreme Court, it is sufficient to indicate that a specific expenditure has been made (in cash or in kind) and to demonstrate its implementation. The amount that should be included in the settlements made as part of the division of joint property often does not necessarily have to correspond to the nominal value of the outlay, often made many years before the termination of the statutory partnership; this amount must be determined taking into account the rules developed in this respect specific to division proceedings.

This position, supported by the wording of the above-mentioned provisions, expresses the idea of protection - by restoring the full value - of joint property diminished as a result of expenditure on the spouse's personal property.


XI 2023

The section of the estate in which the enterprise is owned


Pursuant to Art. 1037 § 3 of the Civil Code, if the estate includes an enterprise, the agreement on the division of the estate should be concluded in writing with notarially certified signatures. However, if the enterprise includes real estate or the enterprise is subject to succession management, the agreement on the division of the estate should be concluded in the form of a notarial deed.

Partial division of the estate in court is permissible because the estate includes an enterprise (1038 § 3 of the Civil Code). Normally, the court can limit the division of the estate only for important reasons. At the same time, in accordance with Art. 10381 of the Civil Code, if the estate includes an enterprise, the division of the estate covers this enterprise, taking into account the need to ensure the continuation of the business activities conducted using it, unless the heirs and the testator's spouse who is entitled to a share in the enterprise have not reached an agreement regarding the continuation of this activity. Therefore, it is an analogous rule as in the case of a farm (Article 213 of the Civil Code)


X 2023

There is no catalog of important reasons for determining unequal shares in the marital property of spouses


In the decision of November 22, 2022 (reference number I CSK 4075/22), the Supreme Court stated that it is not possible to catalog important reasons which, in accordance with Art. 43 § 2 of the Family and Guardianship Code must occur so that unequal shares in the marital property of the spouses can be determined. Reconstructing important reasons within the meaning of the above-mentioned provision largely involves assessing the circumstances of a specific case.

By the said decision, the Supreme Court refused to accept for consideration the cassation appeal filed by the applicant, who demanded the repeal of the contested decision of the court of second instance dismissing the appeal in the case of division of joint property and demanded a change of this decision by establishing that her share in the joint property was 90%, and spouse: 10%. The applicant argued that the case involved important legal issues and the cassation appeal was obviously justified.

The Supreme Court found that the cassation appeal did not meet the requirements specified in Art. 3989 § 1 of the Code of Civil Procedure requirements for accepting it for diagnosis. The court emphasized that there was no significant legal issue in the case that would be covered by cassation grounds, would be considered important from the point of view of resolving the case and had not yet been resolved in case law.

The most important issue in the case at hand was to determine whether there were important reasons justifying the determination of unequal shares in the marital property. However, in accordance with the position of the Supreme Court established in the case law, it is not possible to abstractly define the catalog of these important reasons. Reconstructing valid reasons must be done on a case-by-case basis. Therefore, it is the responsibility of the court hearing the substantive case of a given case, not the court of cassation. Therefore, in the case in question, the Supreme Court found that the applicant's argument did not constitute a justification for the cassation appeal, but was only a polemic with the position of the second-instance court, and therefore the cassation appeal could not be recognized.


IX 2023

Good Reasons Clause in Recent Supreme Court Decisions


The Supreme Court, in its decision of October 24, 2022 in case I CSK 3074/22, refused to accept the cassation appeal for consideration as clearly unfounded.

In a cassation appeal, which, as the Supreme Court emphasizes, is not a third instance, but an extraordinary means of appeal, the complainant should demonstrate one of the precisely defined conditions. One of them is the obvious validity of the complaint demonstrated by the complainant.

The applicant sought to establish a separation of property with retroactive effect due to the fact that he had been effectively separated from his wife for a long time. However, the court of second instance did not agree

The complainant pointed out that the cassation appeal was clearly justified because the Court of second instance (...) incorrectly assumed that the actual separation between the parties did not lead to a significant change in the parties' relations and that the date of occurrence of the grounds for establishing separation is only the date of closing of the hearing before the Court of First Instance. instance (i.e. declaring formal separation).

The Supreme Court did not find the complaint obviously justified.

The court pointed out that Art. 52 pairs 1 KRO states that each spouse may request that the court establish separation of property for important reasons.

The "important reasons" clause is flexible and leaves the court a wide margin of discretion, requiring a subjective and individualized assessment in each case.

Inevitably, it does not require the fulfillment of any specific premises and refers to the morality and life experience of the judgment.

In its decision, the court also referred to decision III CSK 64/20, previously described on our website, in which it found that not every form of actual separation may constitute a valid reason for establishing separation of property.

According to the court, the mere fact that there is a de facto separation between the spouses does not determine the date of separation of property.


VIII 2023

Important reasons


Article 43 § 2 of the Family and Guardianship Code, reading as follows: “However, for important reasons, each of the spouses may demand that the determination of shares in joint property take place taking into account the degree to which each of them contributed to the creation of this property. The heirs of the spouse may make such a request only if the testator has brought an action for annulment of marriage or divorce or has applied for a separation order. As a result, there is a wealth of case law on this article and the "good reasons" condition used in the provision. Practically every year, the Supreme Court makes a statement on the interpretation of this premise. The applicants repeatedly sought to have the Supreme Court express its opinion on the possibility of cataloging the premises arising from Art. 43 § 2, while the Court consistently refuses to take such a position.

The doctrine indicates that the premise of important reasons under Art. 43 § 2 is not the same as the premise of Art. 52 § 1 of the Family and Guardianship Code (cf. Partyk Aleksandra, "Unequal shares in joint property are established only for important reasons", LEX/el. 2019), because it is more restrictive (cf. Fras Mariusz (ed.), Habdas Magdalena (ed. .), Family and Guardianship Code. Comment., WKP, 2021).

On the other hand, the jurisprudence is based on the view that the formulation of important reasons refers to the whole family life, the degree of fulfillment of family obligations, in particular failure to fulfill them and possible gross negligence towards the family (cf. decision of the Supreme Court of V CSK 436 / 18, LEX No. 2642780). "Important reasons" therefore refer to ethical aspects, not economic ones, and should be assessed in the light of the principles of social coexistence. In the discussed decision, the Supreme Court decided that the above wording should always be assessed in the light of a specific case and its circumstances, which makes it impossible to catalog the premises. In turn, in the decision of February 27, 2023, ref. no. no.: I CSK 3595/22, the Supreme Court confirmed the previous line of jurisprudence, at the same time pointing out that the use of the general clause by the legislator in this provision undoubtedly proves the intention to leave a decision-making slack, allowing for the assessment of the whole of a given case each time.


VII 2023

Important reasons for unequal shares in joint property


In the judgment of February 27, 2023, reference number I CSK 3595/22, the Supreme Court referred to the issue of the concept of "important reasons" in the context of Art. 43 § 2 of the Family and Guardianship Code. This provision provides that for important reasons, each of the spouses may demand that the determination of the shares in the joint property take place taking into account the degree to which each of the spouses contributed to the creation of the property, which is an exception to the principle of equal shares of the spouses in the joint property.

The judgment was issued on the basis of the participant's cassation appeal against the decision of the District Court, which did not accede to the participant's appeal demanding that his share in the joint property be set at 70% and his wife's share at 30%. As an important legal issue that needs to be resolved, he indicated the need to define the premise of "important reasons" by indicating whether they are exclusively of a non-financial nature, or whether they may be related to the difference in education and professional activity, and the creation of personal property thanks to the personal brand of one of the spouses.

The Supreme Court found the questions formulated in this way to be too detailed to be of value for the development of the law. The court noted that Art. 43 § 2 of the Family and Guardianship Code uses general clauses and unspecified phrases for a specific purpose - these techniques used in legislation allow the courts to assess each case more flexibly, resulting from the overall case, which, however, cannot be arbitrary. For this reason, it is not possible to define this general clause. However, there may be indications of important reasons. For example, it is a statement of violation of the principles of social coexistence, which resulted from the spouse benefiting from a part of the joint property to which he did not contribute. It is also reprehensible conduct of the spouse against whom the demand is directed, which manifests itself in flagrant or persistent failure to contribute to the creation of joint property according to strength and earning potential.

Thus, in addition to important reasons, the premise for making a request specified in Art. 43 § 2 of the Family and Guardianship Code is the real contribution of spouses to personal property to varying degrees. The very concept of contributing is not purely financial in nature - also contributing to the upbringing of children and work devoted to the household should be taken into account when assessing this matter. An important issue is also the way of spending joint property, e.g. wasting joint property. Different degrees of contribution to the creation of this asset are relevant if the difference is significant and clear.

Finally, the Supreme Court emphasized that the complainant did not meet the requirements of the cassation appeal, because he failed to prove that the Regional Court's decision was made in gross violation of the law, and therefore the complaint did not deserve to be examined. Moreover, it recalled that it was not a court of third instance.


VI 2023

Dividend on shares sold after termination of statutory joint ownership


Pursuant to the decision of the Supreme Court of January 12, 2018 (II CSK 220/17), as regards the dividend payable on shares subject to statutory joint ownership, and after its termination, which are jointly owned by spouses in equal parts, there are no grounds for accepting the fiction that for the purpose of distributing this dividend, these shares should be treated as if they had not been sold. This is important so that when dividing these shares, they can also be assigned to the spouse who was not a partner, and to take into account the value of these shares from the date of division of the joint property when dividing them.

This means that the right to dividend is not due after the date of effective disposal of the company's shares in relation to the spouse who sold the shares against the will of the other spouse, also in relation to the new buyer, as well as the limited liability company.

On the other hand, the effective disposal of shares in a limited liability company by the spouse gives the possibility to seek recognition as a co-authorized shareholder to the shares sold by the spouse from the new buyer and from the limited liability company.


V 2023

Outlays from personal property to the spouse's personal property


The Supreme Court, by its decision of April 3, 1970, ref. no. III CRN 90/70 settled on how to settle expenses made from the personal property of one of the spouses to the personal property of the other spouse.

The decision was issued in connection with the former spouse's application for the division of joint property acquired during the marriage. According to the applicant, the joint property included her cash contribution in the amount of PLN 20,000, which she had transferred to her ex-husband before getting married. This contribution was to be used for the purchase of real estate. The first-instance court agreed with the applicant's arguments and awarded PLN 20,000 from the former husband in favor of her in the judgment on the division of joint property.

The second-instance court dismissed the review, an appeal then available to the participants, brought by the applicant and her ex-husband against the decision of the first-instance court. Subsequently, the Prosecutor General filed an extraordinary review, demanding that the decision of the court of second instance be set aside to the extent that it dismissed the review of the participant - the applicant's ex-husband, and that the decision of the court of first instance be set aside in the part in which it determined that the applicant contributed PLN 20,000 to the common property and awarded from the participant to the applicant the amount for the reimbursement of outlays from the applicant's separate property to the participant's separate property.

The Supreme Court noted that Art. 45 § 1 of the Family and Guardianship Code regulates only the obligation of expenses and outlays made from joint property to the spouse's personal property and the right to demand reimbursement of outlays made from personal property to joint property. However, this provision does not regulate the equalization of outlays made from the personal property of one spouse to the personal property of the other. It is possible to demand reimbursement of these expenses, however, this issue is not regulated by the Family and Guardianship Code. Reimbursement of outlays made from one's own personal property to the spouse's personal property is therefore subject to the norms of civil law in the substantive part, and in the procedural part - civil proceedings. As a consequence, in the cases in question, an action should be brought for adjudication of the indicated amount as reimbursement of outlays made on the defendant's personal property from his own personal property. In addition, this circumstance must be duly proven, because the burden of proof rests with the claimant.


IV 2023

Division of joint property of spouses on the basis of the jurisprudence of the Supreme Court


In the judgments issued by the Supreme Court, i.e. in the resolution of May 19, 1989, reference number III CZP 52/89 and the decision of January 31, 2013, reference number II CSK 349/12, the adjudicating panel deals with the principles of division joint property of the spouses in the event of termination of the community of property. The most common reason for this is the dissolution of a marriage by divorce. However, the method of dividing is often a problematic issue, which is why the case law often specifies the rules outlined by the legislator.

In the second of these The majority of Supreme Court rulings refer to the very concept of common property components covered by the obligation to divide between former spouses. The Polish legal system assumes that in matters not regulated in the Family and Guardianship Code, from the moment of termination of the statutory community of property, the provisions on the community of inheritance property and on the division of inheritance (Article 46 of the Family and Guardianship Code) apply accordingly to the property that was covered by it, as well as to the division of this property. Therefore, the Supreme Court, on the basis of the said provision, made an interpretation in the light of which the principle is the obligation to divide the joint property that belonged to this property at the time of termination of the community property and still exist at the time of the division.

In the above-mentioned resolution, the adjudicating panel focuses its considerations on the issue of the impact of damage caused unintentionally during the duration of statutory joint ownership by the spouse in joint property. The Supreme Court admits that it does not affect settlements in proceedings for the division of joint property, but it may affect the manner of its division. The position of the Supreme Court was the result of a rather interesting factual situation in which the spouse unintentionally caused a fire, as a result of which some items of the household appliance were burnt. The insurer then paid the claim. In the case of division of the property, the court assumed that the amount of the property should include the sum of compensation paid by the insurer, and not the value of individual items that were destroyed by the fire. However, this position was challenged by the ex-wife. The complainant demanded that the value of the items that had been burnt be included in the distribution mass instead of the compensation paid by the insurer. The outlined facts implied the need for the court to determine the mass of joint property subject to division. As a rule, it has been assumed that the entire property relationship as at the date of termination of the statutory community is subject to settlement, while the active status of the property mass at the time of division is subject to division. Therefore, the court considered that the items that had been burned could not be divided for obvious reasons, and therefore the division had to be related to the amount of insurance paid out.

The judgments cited above undoubtedly indicate a clear scope for possible abuses in the context of the procedure for the division of joint property. The provisions constructed by the legislator contain many references, which makes it difficult to interpret them. In view of the above, an extensive interpretation of common courts, carrying a clarifying value, should be considered justified.


III 2023

Stwierdzenie nabycia spadku, dział spadku i zniesienie współwłasności w jednym postępowaniu


Zgodnie z art. 681kpcJeżeli stwierdzenie nabycia spadku jeszcze nie nastąpiło i nie został sporządzony zarejestrowany akt poświadczenia dziedziczenia, postanowienie o stwierdzeniu nabycia spadku wydaje sąd w toku postępowania działowego. Warto też przypomnieć postanowienieSądu Najwyższegoz dnia 24 października 1995 r. (II CRN 133/95), w którym stwierdzono, że zgłoszenie w jednym wniosku żądań stwierdzenia nabycia spadku i jego działu, a także zniesienia współwłasności, stanowi kumulację roszczeń dopuszczalną na gruncie postępowania nieprocesowego na podstawie art. 191 w związku z art. 13 § 2 k.p.c.

Oznacza to że nie trzeba zakładać 3 spraw o stwierdzenie nabycia spadku, dział spadku i zniesienie współwłasności w jednym postępowaniu, ale wszystkie żądania można zawrzeć w jednym wniosku

II 2023

Disposal of an item constituting the joint property of the spouses made after the divorce and before the division of property


The Polish family law system provides for three basic types of property regimes that may arise between spouses. The first is the so-called statutory community regulated in the provisions of art. 31-46 of the Family and Guardianship Code (Act of February 25, 1964. Family and Guardianship Code (i.e. Journal of Laws of 2020, item 1359), in which the assets owned by the spouses are subject to the appropriate classification for one of three categories, such as: joint property, husband's personal property and wife's personal property.The second solution provided by the legislator is the so-called contractual property regime (Art. 47-50(1) of the Family and Guardianship Code). In this case, the spouses pursuant to the concluded agreement, they extend or limit the rules of statutory joint ownership (within the limits allowed by the law) or decide to carry out property separation (including in the variant of property separation with the equalization of the acquis). property separation itself under the so-called compulsory property regime (Articles 52-54 of the Family and Guardianship Code). Such a situation occurs only as a consequence of the issuance of by a court decision as a result of a request made by one of the spouses, alternatively also as a result of one of the spouses being declared bankrupt or incapacitated, and additionally also at the time of separation or separation.

After the separation of property, there may be a need to divide the previously created joint property of the spouses. In accordance with the regulation of civil law, the provisions on the division of inheritance apply accordingly to such proceedings (Article 567 § 3 i and Article 688 of the Act of November 17, 1964. Code of Civil Procedure (i.e. Journal of Laws of 2021, item 1805 as amended)), which, in turn, direct the authority applying the law to the appropriate application of the provisions on the procedure carried out as part of the abolition of co-ownership in matters not regulated by it. As a result, the court dividing the joint property decides on the mutual claims of the spouses for the possession and use of the joint property, benefits and revenues received, expenditures made and debts repaid.

An interesting issue related to the situation outlined above is undoubtedly the case in which one of the spouses, after a divorce has been issued by the competent district court, and before the division of the joint property by the competent district court, sells the property from the joint property. The jurisprudence that has developed in the context of this problem provides for the principle that after the termination of the statutory community, the regulation by one of the spouses (former spouses) of a share in an item belonging to the joint property requires the consent of the former spouse. At the same time, it is assumed that in its absence, the regulation is ineffective against the spouse who did not consent. In fact, such a situation raises a problem of such a nature that the court, recognizing the ordinance as ineffective in relation to the other former spouse, should divide the joint property as if the ordinance did not exist. The authority is obliged to take into account the condition of this item at the time of termination of the statutory community, determine its value according to its market value at the time of adjudication and make appropriate settlements between the spouses. The conclusions drawn above are mainly the subject of jurisprudence considerations, and one of the relatively newer judgments related to the subject matter is the decision of the Supreme Court of April 16, 2014, V CSK 315/13. Undeniably, it is noteworthy that an unlawful disposal of a component of the joint property of a divorced spouse made before the division of joint property results not so much in the invalidity of the legal act as another sanction in the form of ineffectiveness towards the other divorced spouse. This is to protect the property interest of such a spouse waiting for a fair division of the existing joint property. This undoubtedly implements the directive of observing the principles of social coexistence known to civil law. One may wonder, however, whether the introduction of the sanction of invalidity of the legal transaction performed would not be more transparent for the addressees of the law and would not facilitate the very procedure of property division.


I 2023

Judgment of the Supreme Court of January 21, 2009 (ref. no. II CSK 446/08) - registered shares acquired with funds included in joint property


The Family and Guardianship Code indicates which property items during the marital community of property are included in the respective property: joint property or one of the spouses' personal property. Article 32 of the Family and Guardianship Code The property of the spouses (i.e. their joint property) is the property acquired during the statutory community by both spouses or by one of them. In particular, the spouses' assets include: remuneration for work and other services provided personally by either spouse, income from joint property, as well as from separate property of each spouse (Article 32 § 2 of the Family and Guardianship Code). It should be borne in mind that the indicated catalog of assets belonging to the spouses' output is only exemplary - this is indicated by the use of the word "in particular". Thus, the joint property of the spouses may include such property items that were not listed in paragraph 2 of this article, and were acquired during the statutory community. Contrary to the catalog contained in art. 32 k.r.o., art. 33 k.r.o. exhaustively regulates the catalog of property items included in the personal property of each of the spouses.

A contentious issue in the doctrine and jurisprudence was the qualification of which of the assets includes registered shares acquired by one of the spouses from the funds from the joint property - to the joint property or to the spouse's separate property. There were several concepts presented in the doctrine and jurisprudence. The first of them said that shares acquired from the joint property are included in the separate property of the spouse, and was based on the assumption that corporate rights are inalienable. The second of them provided that such shares would belong to a separate property mass, which was not explicitly provided for in the Family and Guardianship Code. The third of them indicates that if shares were purchased from the joint property of the spouses, both spouses are the shareholders.

In the judgment of the Supreme Court of January 21, 2009 (case no. II CSK 446/08), the Supreme Court rejected the above-mentioned concepts, arguing that: the first of them would lead to a reduction in the joint property of the spouses; the second of them provided for a separate estate not provided for in the Family and Guardianship Code; the third of them contradicts the provisions of commercial law, because only a spouse participating in a legal transaction and purchasing a share may be a shareholder. The Supreme Court indicated that "the subject of joint property may, in the opinion of the Supreme Court, only be rights (obligations) of a property nature, while corporate rights are exercised only by the spouse purchasing the share".

The Supreme Court indicated that the provisions of the Family and Guardianship Code as well as the Code of Commercial Companies do not directly regulate this issue. Considering this issue further, the Court emphasized that "pursuant to Art. 32 § 1 k.r. and op. (in the wording in force until 19 January 2005) joint property includes property items acquired during the duration of the statutory community by both spouses or by one of them. For entry into joint property, only the time of acquisition of property rights is relevant. If the funds for the acquisition come from joint property, it does not matter whether both spouses or only one of the spouses are parties to the legal transaction resulting in the acquisition of the joint property. In addition, each of the spouses may independently manage the joint property, and only for activities exceeding ordinary management, the consent of the other spouse is required in the form required for a given activity (Article 36 of the Family and Guardianship Code). In this case, the purchase of shares is not an activity exceeding ordinary management.

Considering the above, the Supreme Court allowed for the possibility of separating the external sphere (i.e. relations between shareholders and the company) from internal relations (between spouses). As a result, the Court unequivocally decided that the shares acquired by the spouse from the funds from the joint property are part of this property, and only the spouse participating in this action becomes a shareholder.


XII 2022

Resolution of the Supreme Court of February 23, 2018; III CZP 103/17 - what does "state" mean in the sense of the state of the property at the time of termination of the community


In the regulations of both the Family and Guardianship Code and the Code of Civil Procedure, there is no clear regulation specifying what state of joint property should be taken into account by the Court when dividing it. Due to the emerging doubts, the District Court presented the following legal issue to the Supreme Court:

"In the case of the division of joint property, is the determination of the value of individual property items included in the joint property according to the state of these items as at the date of termination of the marital property or according to the state at the date of adjudication?"

According to the Supreme Court, the court determines the composition of joint property at the time of termination of the community of property, and its value according to the state and prices at the time of division (in this case, adjudication). The Supreme Court also pointed out that the "condition" of the joint property should be understood as the characteristics, quality or degree of wear of the joint property components. Returning, however, to the key issue - the Supreme Court emphasizes that the moment when the value of property items included in joint property should be determined should be the moment of adjudication, and more precisely the moment of closing the hearing. This is in accordance with the principle of timeliness established in the Code of Civil Procedure.

Justifying the choice of the moment of determining the state of joint property at the time of closing the hearing, the Supreme Court adds that the division of joint property is not obligatory. It is therefore justified to consider the moment of division of property (i.e. closing of the hearing) as the most appropriate moment for assessing the condition of this property. After all, the state at the time of termination of community of property may differ significantly from that at the time of adjudication.

Finally, it should be emphasized that while the condition of individual assets included in the joint property is assessed as at the date of adjudication, the composition of the property itself is determined at the moment of termination of the community of property.


XI 2022

Company shares as objects for conducting business - management of common property


Pursuant to Art. 36 § 3 of the Family and Guardianship Code, the spouse manages the objects used by the spouse to practice his profession or gainful employment.

The family and guardianship code does not contain a list of items used for the exercise of a profession or gainful employment. However, some guidelines for defining the above-mentioned the definitions are given to us by doctrine. It is pointed out that “It is of great practical importance to define the criterion according to which it is necessary to decide whether a given object is used for the exercise of a profession or business activity. It was rightly stated in the literature that the determination in question should be based on specific circumstances. The scope of the concept of an asset is therefore wide and may include, for example, a motor vehicle, but also an enterprise "(B. Kubica [in:] Family and Guardianship Code. Commentary, edited by M. Fras, M. Habdas, Warsaw 2021, Art. 36 ).

Moreover, "the use of the word" spouse "in the singular indicates that this particular regime will not apply when certain items are used by both spouses for their jointly gainful employment or profession, or if they are useful to both spouses for a profession performed separately by each of them, or a separate gainful activity ”(A. Sylwestrzak [in:] Commentary to some provisions of the Family and Guardianship Code [in:] Management of joint property. Commentary, Warsaw 2016, art. 36). The provision states that an item used to perform a gainful activity may only be used by one spouse.

However, can shares or stocks belonging to joint property be regarded as "items for the purpose of carrying out a profit-making activity"? There is a difference of opinion in the doctrine as to whether the disposal of shares constitutes a gainful activity. Rather, it is recognized that passive forms of participation in trading (eg buying and selling shares) do not fall within the scope of the concept of "gainful activity". The situation may be interpreted in various ways if the ownership of shares is associated with the obligation to provide services to the Company. In such a case, it can indeed be considered whether we are dealing only with passive participation in trade. The specific circumstances of the case would then be decisive.


X 2022

Partial runs of decline


Upon the opening of the inheritance, i.e. upon the death of the testator, the heirs jointly enter the entire legal situation of the deceased, thus becoming joint owners of the testator's entire property. In such a situation, they often decide to divide the estate. This action is aimed not only at breaking the existing bond between them, but at the same time causing a change in the scope of responsibility for inheritance debts. The division of the estate may be judicial or contractual, but they are not entirely equivalent. It is worth noting that the heirs who divide by agreement have a much wider scope of freedom, and this method is not restricted. It is the heirs themselves who decide whether the subject of the section will be the inheritance in whole or in part, and it is up to them to decide on the number of contracts concluded (P. Zdanikowski [in:] Civil Code. Comment. Volume VI. Inheritances (Articles 922-1087) , ed. M. Fras, M. Habdas, Warsaw 2019, art. 1038.)

As stated in the principle adopted in the Polish legal order, as clearly indicated by the content of Art. 1038 of the Civil Code, the judicial division of the estate should cover the estate in full. Both in the doctrine and jurisprudence, this rule refers to the section in terms of the subject and subject. Partial division of the estate is allowed only for important reasons. Moreover, it is widely accepted that the partial division of the estate in the subjective sense, i.e. only between individual heirs, is not possible at all. The only way to be excluded from the community is to relinquish the inheritance shares.

As indicated above - a partial division of the estate, and thus covering not all components of the estate, but only a part of them (G. Karaszewski [in:] Civil Code. Comment, ed. M. Balwicka-Szczyrba, A. Sylwestrzak, Warsaw 2022, Art. 1038), may take place only if important reasons are met, the aim of the action is, after all, "the definitive abolition of the commonality of the estate" (A. Kidyba, E. Niezbecka [in:] A. Kidyba, E. Niezbecka, Kodeks Civil. Volume IV. Inheritances, 4th edition, Warsaw 2015, art. 1038). At the same time, the legislator did not decide to introduce a full legal definition of the concept of important reasons, therefore it had to be developed by the jurisprudence. The assessment is made each time on the basis of a specific factual state. Pursuant to the Act of July 5, 2018 on the management of successive enterprises of a natural person to Art. 1038 of the Civil Code §3 has been added, which exceptionally expressis verbis indicates a circumstance that is considered a valid reason. If the inheritance includes an enterprise - then also usually - there is no doubt as to the legitimacy of the judicial division of the inheritance. What P. Zdanikowski emphasizes in the commentary to the act, however, does not mean full freedom. It is allowed to either divide the enterprise only or a partial division of the remaining components, as a result of which the enterprise will "remain in the joint estate of the estate" (Civil Code. Comment. Volume VI. Inheritances (art. 922-1087), ed. M. Fras, M Habdas, Warsaw 2019, art. 1038).

When assessing the importance of the reasons that may possibly allow the judicial division of the estate in part, one should take into account "both economic considerations and property interests of the heirs" (A. Kidyba, E. Niezbecka [in:] A. Kidyba, E. Niezbecka, The Civil Code. Commentary. Volume IV. Inheritances, 4th edition, Warsaw 2015, art. 1038.). Situations justifying limiting the distribution of inheritance to part of the estate may take place in cases where, inter alia:

  • making a division as to a specific subject of inheritance in a certain period would be contrary to its socio-economic purpose or the principles of social coexistence - as indicated by the Supreme Court in its decision of April 14, 2021, file ref. II CSKP 16/21, when making a division leading to the exit from co-ownership, the court should take into account the lawfulness of such action, the principles of social coexistence (Decision of the Supreme Court of April 14, 2021, II CSKP 16/21, LEX No. 3358853);
  • the division would be permissible due to the intended use of the item, if the division would not entail a significant change in the item or a significant reduction in value (Decision of the Supreme Court of February 17, 1999, II CKU 63/98, LEX No. 36553.);
  • the division of the real estate would result in the creation of two plots, one of which would cover the area necessary for the use of the building located on it, and the other would cover the part unsuitable for investment due to the purpose of high-rise construction of public buildings, as well as due to the hindered access from the street (Decision of the Supreme Court of December 17, 1999, III CKN 502/98, LEX No. 371783).

Among the important reasons, there is also an unanimous application of the heirs for a partial division. However, this thesis is not beyond dispute. Prevailing in this There are liberal postulates, according to which the heirs' unanimous request to limit the division of the estate to its part can be considered an important reason. The rightness of such a position is supported, among others, by: A. Kidyba (A. Kidyba, E. Niezbecka [in:] A. Kidyba, E. Niezbecka, Civil Code. Commentary. Volume IV. Inheritances, 4th edition, Warsaw 2015 , art. 1038.). On the other hand, P. Zdanikowski, somewhat rightly pointing out that "since heirs may conclude an agreement for a partial division of the inheritance and it depends only on their will, important reasons should be understood rather as objective circumstances" (P. Zdanikowski [in:] Civil Code Commentary, Volume VI. Inheritance (art. 922-1087), ed. M. Fras, M. Habdas, Warsaw 2019, art. 1038.). It seems that the ratio legis of the regulation is closer to such a statement.

Analyzing the provision of art. 1038 of the Civil Code it is impossible to ignore the issue of Art. 46 k.r.o. As they state in connection - for important reasons, it is permissible to limit the division of property after the termination of the joint property that was covered by it. Article 46 of the Family and Guardianship Code, in matters that are not regulated, refers to the provisions on joint inheritance and division of inheritance. As in the case of the Civil Code, the legislator does not directly indicate situations that should be considered a valid reason. However, it is usually assumed that they may be personal, economic, but above all they must be objective (B. Kubica [in:] Family and Guardianship Code. Commentary, ed. M. Fras, M. Habdas, Warsaw 2021, art. 46.). “If a division is limited to a part of the joint property, it is necessary to supplement it. Such a need occurs when the court, for important reasons, made a partial division (Art.1038 § 1 sentence 2 of the Civil Code in conjunction with Art.46 of the CC) or when for other reasons some property remained beyond the division (e.g. one of the spouses concealed the division, that a given item, considered lost, has been found) "(E. Skowrońska-Bocian [in:] Family and Guardianship Code. Commentary, ed. J. Wierciński, Warsaw 2014, art. 46.)


IX 2022

Upbringing and education costs incurred by the testator

Other benefits received by the heir from the testator are also included in the inheritance (apart from donations). The group of people entitled to credit the costs of upbringing and education in the inheritance is limited only to descendants who directly inherit from the testator, which means that neither the spouse nor other heirs are subject to the following regulation. Pursuant to Art. 1043 of the Civil Code, the provisions on crediting donations to the inheritance shall apply accordingly to the costs of upbringing, general and vocational education incurred by the testator for the descendant, provided that these costs exceed the average measure adopted in a given environment. The doctrine indicates that the measure of the costs of upbringing and education is determined individually, taking into account the entire property and personal situation of members of a given family. It is assumed that the costs "will exceed the average measure primarily when the high level of education and upbringing of one of the children is achieved at the expense of the others" (E. Skowrońska-Bocian, in: Commentary to the k.c., Ks. IV, 2007, p. 170 ). To confirm this position, the District Court in Białystok in its decision of November 7, 2014, ref. No. II Ca 871/14 refers to the example when people with an average income from among several children send one to study abroad, allocating significant resources for this purpose, which prevents the remaining children from continuing education after completing primary school, so it becomes obvious that only the surplus of costs exceeding the average measure is included in the inheritance, and not all the costs of education. Moreover, the said surplus must be effectively proved by a party in legal proceedings.

"The further descendant should also be counted towards the inheritance scheme of the excess costs of upbringing and education made by the testator in favor of his descendant who did not inherit (appropriate application of Art. 1041)."

In the case covered by the decision of the District Court for Warszawa-Mokotów in Warsaw of June 14, 2016, file ref. I Ns 211/13, the inheritance was based on a will, and not on the basis of an act, which precluded the application of Art. 1043 of the Civil Code in connection with with Article 1039 § 1 of the Civil Code

"Interpretation of Art. 1043 of the Civil Code in connection with joke. 1039 § 1 of the Civil Code, according to which the costs of upbringing and education incurred by the testator for the benefit of the descendant are included in the inheritance in the event of division of the inheritance between the descendants only in the case of statutory inheritance, was adopted by the District Court as the basis for the decision of 30 January 2008 on reference number act V Ca 2291/07 ”.

“The commented provision, which envisages counting in an inheritance on principles such as donations, also costs of education, general and vocational education, was criticized already at the time of the entry into force of the Civil Code. It was then pointed out that its application would give very little economic results, and would cause the parties and courts a lot of trouble and difficulties in calculating the sum of the testator's benefits and finding out what parts of these benefits were (excessive) costs of education and upbringing.

Nowadays, the importance of this institution, on the one hand, has significantly decreased (mainly due to the universality and availability of higher education). On the other hand, however, a larger number of people use other cost-effective forms of education, such as studies at foreign universities or specialized vocational training (post-graduate studies, training allowing them to perform specific professions). It also happens that parents bear high costs of their children's specialist sports training aimed at practicing a given discipline in the future. Such training begins in childhood and lasts until the age of several, and most often involves high expenses, including not only training costs, but also trips to competitions, tournaments, sparring etc. "


VIII 2022

Inheritance proceedings with a notary public as a stage preceding the inheritance division

In order to be able to effectively divide the inheritance with a notary, i.e. the dissolution of joint ownership between heirs, you must first obtain a formal right to acquire the inheritance, which is possible only by a court order or by a notarized inheritance certificate. The second method is certainly more convenient due to the much faster process of a notary office.

Inheritance proceedings are therefore always the first stage to be carried out if it is planned to split the estate so that, for example, one of the heirs becomes the sole owner of a specific component of the estate. The inheritance certificate (or a court decision equivalent to APD confirming the acquisition of an inheritance) is also the legal basis for activities related to, for example, the payment of money from the bank account of the deceased person. Therefore, the conduct of inheritance proceedings should not be underestimated, as it is not only a necessary stage preceding the division of the inheritance, but also a necessary process to enable many mundane activities to be performed after the testator's death.

The inheritance proceedings conducted by a notary public consist of several notarial deeds (of course, consecutive during a single visit). In a situation where a will was drawn up, it is necessary to present its extract in advance and the first act that will be read by a notary public will be the "Protocol on the opening and announcement of the will". Then, if 6 months have not elapsed from the moment of death, the "Declaration of acceptance of inheritance" will be read. The six-month period mentioned above is also a possible deadline for submitting a declaration of rejection of inheritance. Another notarial deed is the "Inheritance Protocol". It is necessary, among others upon its preparation, presentation of documents, i.e. birth certificates of the heirs, certificate of the deceased's PESEL number, marriage certificates. The most important act among the entire inheritance proceedings is the "Inheritance Certificate Act" (read after the protocol), the heirs of which are most often asked for when dealing with cases, eg in various institutions. A short file, usually containing less than two pages, is the most important, i.e. it confirms in what parts certain heirs acquired the inheritance. The aforementioned APD notary public is obliged to register in the Succession Register immediately after reading it, and then an appropriate annotation is made in the deed. As a rule, the last act is the "Statement", which concerns the real estate. If the deceased was the owner of any real estate that has a land and mortgage register number, the heirs in such a deed declare that they own or lack such real estate. The cost of the entire inheritance proceedings at the notary's office depends on the exact number of pages of a given act and the number of extracts downloaded. Nevertheless, it will amount to several hundred zlotys, and practice shows that it is usually over 400 zlotys. It should be borne in mind that the notary will only conduct inheritance proceedings if all the heirs are in agreement and appear at the notary's office at the same time.

As can be seen from the above, obtaining a notarized inheritance certificate or instead of it if the court route is chosen - a court order that states the acquisition of the inheritance in fact begins each inheritance case, and the division of the inheritance is carried out when the number of heirs is greater than one is only in the second the stage of resolution of the inheritance issues, because the necessary condition for the distribution of the inheritance at the notary public is to prove the basis for acquiring the inheritance achieved thanks to the inheritance proceedings.


VII 2022

The inheritance department covering the enterprise

In a situation where the inheritance includes an enterprise, Art. 10381 of the Civil Code. Before explaining the content of the cited provision, however, it is necessary to get acquainted with the code definition of the very concept of an enterprise. In the light of Art. 551 KC, an enterprise is an organized set of intangible and tangible assets intended for running a business. Therefore, if the said enterprise belongs to the estate, the division of the estate covers this enterprise with particular regard to the need, which is to ensure the continuation of the economic activity conducted with its use, unless the heirs and the spouse of the testator who is entitled to share in the enterprise have not reached an agreement as to the continuation of this activity. .

The basic goal that should be achieved when carrying out activities of the inheritance division with the enterprise is the guarantee that the business activity will continue. The enterprise may be subject to division also in a situation where, despite everything, the heirs and the authorized spouse of the testator are not able to reach an agreement as to the continuation of economic activity. Art. 10381 of the Civil Code concerns the judicial division, which implies that it is the court that bears the burden of trying to reconcile the participants in the proceedings in order to achieve the intended purpose of the provision. It is important that in the case of non-judicial but notional division of the inheritance, the discussed directive is not binding on the heirs, but may constitute a possible indication. In most cases, the individual components of the enterprise are not divided, and the organized set of intangible and tangible assets that constitute the enterprise is usually granted in full to one of the co-owners. Nevertheless, the assessment of each division is made by the court in a specific case with a view primarily to maintaining the highest possible productivity of the enterprise. Lack of interest in the takeover of the enterprise by the heirs or the authorized spouse of the testator does not constitute an obstacle to the division of the components of this enterprise.


VI 2022

The terms of the partial decision in the case concerning the division of the estate

In the case of the inheritance division, it is possible with the appropriate application of Art. 317 § 1 of the Code of Civil Procedure, issuing a partial decision if it grants a given object or right to one of the heirs (cf. also Art.1044 of the Civil Code) with the obligation to pay the others (Art.212 in conjunction with Art.1035 of the Civil Code), when it therefore decides as a whole what to the component covered by the division of the estate, settling it comprehensively between all heirs, as well as the division of joint property, in the scope covering some assets, provided that such a provision must include a complete decision on the allocation of this component to one of the participants and a final settlement on this account.

This means that it is not allowed to assign any component of the estate to one of the heirs, leaving the settlement for later.

On the other hand, in the case of acquisitive prescription of a mass component as a method of primary and not derivative acquisition of the ownership right, the possibility of covering it with the division is excluded and eliminates the obligation of settlements between the legal successors of persons who were previously entitled to it.

(decision of the Supreme Court of 6 May 2021 (V CSKP 29/21)


V 2022

Settlement of the repayment of the joint debt of the spouses after the termination of the joint property and before the division of the joint property

Pursuant to Art. 686 of the Code of Civil Procedure in connection with joke. 567 § 1 and 3, in proceedings for the division of joint property, the court also decides on mutual claims between spouses for possession of individual items of joint property, obtained benefits and other income, as well as expenditure on joint property and paid debts.

Pursuant to the decision of the Supreme Court of May 12, 2021 (case file number IV CSKP 60/21, LEX No. 3252369), "if the applicant, after the termination of the community property, and before the division of the joint property, repaid the debt, which arose during the statutory joint life and was a joint debt of the spouses, or the debt of one of them, but incurred in connection with the joint property, such debt should be settled as part of the division of joint property ". It means, therefore, that the joint debt of the spouses, which arose during the statutory joint venture, is to be divided when the joint property is divided.

Moreover, the Supreme Court also indicates that "if, during the period of joint property, the debt was incurred only by one of the spouses, who was a debtor towards the creditor, and the financial benefit obtained by him was allocated to the joint property, and in the period between the termination of the joint property and the division the joint property, the debt has been repaid by the debtor from his personal property, the other spouse is obliged to return half of the repaid amount. " Similarly, the Supreme Court indicates in its decision of October 29, 2021 (case No. II CSK 170/21, LEX No. 3284812).


IV 2022

Complementary inheritance department

If the inheritance is shared by several people, dividing the inheritance tends to distribute the elements of the inheritance among individuals.

The division of the inheritance may take place either by agreement between all heirs, or by a court order upon request any of the heirs. The inheritance department may therefore be contractual or judicial. The judicial division of the estate should cover the entire estate. However, for important reasons, it may be limited to a portion of the inheritance. The notional division of the estate may cover the entire estate or be limited to a part of the estate.


When can there be a judicial partial division of the estate?

A judicial partial division of the inheritance may occur, in particular, from this because an enterprise is part of the inheritance. Pursuant to the resolution of the Supreme Court of September 22, 1977 (file reference number III CZP 72/77), in the event of important reasons to limit the division of joint property to a part of this property, the court may only include a decision on this matter in a division judgment concluding the proceedings in case.


What is a Supplementary Inheritance Department and when can it be done?

The supplementary division of the estate is a section that is made after dividing the estate in part, if the estate department did not cover all its components. The omitted components do not cease to be joint property, so it is worth making a supplementary division of the inheritance. Pursuant to the resolution of the Supreme Court of August 28, 1986 (file reference number III CZP 47/86), if it turns out that, for any reason, a legally valid decision on the division of the joint property did not cover all essential components of the joint property, each of the ex-spouses may apply in separate proceedings for a supplementary division as to the components that have not been included in the division ruling. Moreover, the joint assets of the ex-spouses not submitted for division or omitted by the Court in a legally binding decision for division do not cease to be joint property; they may therefore be divided by agreement or by a court ruling (supplementary division) (decision of the Supreme Court of July 14, 1983, file reference number IV CR 282/83). The above was confirmed by the decision of the Supreme Court of June 30, 2021 (file reference number I CSKP 133/21), indicating that if a specific asset was part of the joint property and was not covered by the contractual division of this property combined with the division of the deceased's estate the spouse, each of the heirs may request a supplementary judicial division of the estate covering this component.

Each of the heirs may apply for a supplementary division of the estate.


III 2022

Reimbursement of expenses and expenditures before and after the division of the joint property

The rules of making settlements by spouses in respect of expenses and expenditure made from joint property to personal property of each of them and made from personal property to joint property are governed by Art. 45 k.r.o. As provided by the law, each spouse should reimburse the expenses and outlays made from the joint property on his personal property, with the exception of expenses and expenses necessary for income-generating property. The spouse may request reimbursement of expenses and expenses that he made from his personal property to the joint property. However, you can not claim the reimbursement of expenses and expenditures used to meet the needs of the family, unless they increased the value of the property at the time of cessation of commonality.

Pursuant to Art. 45 § 2 of the Family and Guardianship Code, the return is made when the joint property is divided. The court may, however, order an earlier return if it is in the welfare of the family. According to the ruling of the Court of Appeal in Szczecin of 5 December 2012 (file reference number I ACa 589/12), “The welfare of the family referred to in Art. 45 § 2 k.r.o. should be understood broadly and interpreted in accordance with the purpose of the provision. This aim is to lead to a comprehensive settlement of property issues between former spouses in one proceeding. ”. B. Kubica also points out that "The literature correctly emphasizes that when assessing the condition of the good of the family, the court should examine the situation of a specific family, and therefore it is not possible to define general criteria that allow for earlier settlements. In practice, an example of the possibility of applying Art. 45 § 2 k.r.o. there is a situation in which, after making the appropriate expenses or expenditures, the marital life has broken down "(B. Kubica [in:] Family and Guardianship Code. Commentary, ed. M. Fras, M. Habdas, Warsaw 2021, art. 45.). It is also worth emphasizing that it is not allowed to make earlier settlements by means of an appropriate agreement between the spouses, which results from the special nature of this provision and the exclusive right of the court to assess the condition of "good of the family".

As S. Madaj writes (Madaj, Proceedings nieprocesowe ..., p. 128), taking into account the above, we can conclude, a contrario, that there is no possibility of a later return, that is, one that would take place after the division of the joint property. This position is shared by the jurisprudence - in its decision of February 2, 2005, IV CK 454/04, the Supreme Court stated that "after a legally valid decision on the division of joint property has been passed, it is no longer possible to pursue claims for the return of expenditure from separate property to joint property and joint property into separate property ".

The issue of early return remains the subject of a dispute in the doctrine. According to the view of A. Szpunar, "this return is possible only during the time from the termination of the joint property until the joint property is divided" (A. Szpunar, On the damage caused by one of the spouses in the joint property, Law Asekuracyjne 1998, No. 2, pp. 17 ff.). The second position points out that "in Art. 45 § 2 k.r.o. a general clause for the good of the family was placed, and therefore the way to an even earlier return order should not be definitively closed, and in special cases, it is necessary to opt for the possibility of a court ordering the return also during the joint life "(see T. Sokołowski, Damage caused by the spouse in the joint property, The Asekuracyjne Law 1998, No. 3, pp. 45 et seq.). The correctness of this interpretation is indicated by the fact that the abolition of community may be contrary to the good of the family, if only one of the spouses works professionally and the other is involved in raising children and running the house. In such a case, the return to the joint property may have a positive impact on the situation of the family, at the same time it does not exclude the benefits of the community of property regime. It is important that the order for reimbursement of outlays or expenses from personal property takes place without undue delay, as it may happen that the property is subject to an unforeseeable reduction.

The demand for an earlier reimbursement of expenditure and expenses is recognized only in the procedural mode. This is due to the fact that there is no provision in the Code of Civil Procedure that would indicate the possibility of considering this type of cases in a non-litigious procedure. Pursuant to the decision of the Supreme Court of April 12, 2000 (IV CKN 27/2000), the procedural procedure also applies when, after the termination of joint ownership, there is no joint property as the object of division.


II 2022

Sharing the joint property during the joint property period

As a rule, during the period of joint property, it is prohibited to divide the joint property. First, property separation must be introduced. According to Art. 35 cryo, during the statutory joint life, neither spouse may claim the division of the joint property. He may also not dispose of or undertake to dispose of the share which, in the event of the termination of the community, will be attributed to him in the common property or in individual items belonging to that property.

Therefore, the view expressed in the judgment of the Court of Appeal in Gdańsk of October 7, 2020 (V ACa 380/20) is correct that "the view that allows the conclusion of contracts without restrictions to transfer certain assets between spouses' property is unjustified. Such agreements, as intended to circumvent the law, i.e. the provisions of the Family and Guardianship Code regulating contractual property regimes, should be considered invalid (Art. 58 § 1 of the Civil Code). "


I 2022

Remuneration for the use of joint property

There may be conflicts between former spouses over the use of specific items of the joint property. In a decision of March 5, 2021 (IV CSKP 30/21), the Supreme Court confirmed that "a spouse deprived by the other spouse of the possibility to use the assets of the joint property may, in a case for its division after the end of joint property, claim for remuneration for the use of these assets by the other spouse in addition to the share he was entitled to, if he showed the will to use them during the joint property period (Art. 46 of the Penal Code in connection with Art. 1035 and Art. 206, 224 § 1 and Art. 225 of the Civil Code). In special circumstances, this remuneration may be reduced pursuant to Art. 5 of the Civil Code ". What is important, according to the court, it is necessary to show the willingness to use the specific assets of the property. If this is not done, the remuneration cannot be claimed post factum.


XII 2021

Division of things on the inheritance department

The Supreme Court recalled in its decision of May 6, 2021 (V CSKP 29/21) that the dissolution of joint ownership may take place through the division of a joint thing. "Acting on the" division of things ", - the provision of Art. 211 of the Civil Code it involves division in a physical sense, ie by creating two or more new things out of one existing so far. Thus, the division each time leads to the creation of a new legal good, which - in principle - after the abolition of joint ownership, is the subject of the exclusive right of one of the existing co-owners. Such a division should be made when it is not inconsistent with the provisions of the Act or with the socio-economic purpose of the thing, and does not result in a significant change of the thing or a significant reduction in its value. In such cases, the item may be granted, depending on the circumstances, to one of the co-owners with the obligation to repay the remaining ones, or sold pursuant to the provisions of the Code of Civil Procedure. (Article 212 § 2 of the Civil Code). "

If there is a division of things in the course of the inheritance case, it is permissible to issue a partial decision (Art.317 § 1 of the Code of Civil Procedure) by "assigning a given object or right to one of the heirs (cf. also Art. 1044 of the Civil Code) with the obligation to repay the remaining ones (Art. 212 in conjunction with Article 1035 of the Civil Code), when it decides as a whole as to the component covered by the division of the estate, settling it comprehensively between all heirs, as well as the division of joint property, in the scope covering some assets, provided that such a provision must contain complete resolution of the issue of awarding this component to one of the participants and final settlement on this account. "


XI 2021

Claim for the transfer of ownership of a building in a case for the division of joint property

In a decision of 27 May 2021 (I CSKP 120/21), the Supreme Court stated that "in a case for the division of joint property, it is permissible to apply Art. 231 § 1 of the Civil Code " Article 231 § 1 of the Civil Code states that "an independent owner of land in good faith, who erected a building or other device on or below the ground with a value significantly transferring the value of the plot used for this purpose, may demand that the owner transfer to him the plots of land for adequate remuneration ".

Does this mean that, for example, when the spouses erected a building on a plot belonging to the personal property of one spouse, can the other spouse demand that he be granted ownership of the property belonging to the personal property of the first spouse? For now, we are waiting for the justification of the Supreme Court's decision. However, if this were the court's reasoning, it means that cases for the division of joint property could, in special cases, also apply to the spouses' personal property.


X 2021

Agreements between spouses

The Court of Appeal in Warsaw, in its judgment of 15 July 2021 (V ACa 651/19), tried to set limits on the admissibility of contracts between spouses in property matters. According to the court, "during the period of statutory matrimonial property law, it is permissible for the spouse to dispose of the subject belonging to the joint property on behalf of the other spouse's separate property. This is because the property community should serve, first of all, the spouses themselves, and disposing of the property components that belong to this community should constitute their exclusive right ”.

Nevertheless, the Court introduced certain limitations: "the freedom of the spouses in this respect is limited by the provision of Art. 35 k.r.o. Contradictory to this provision, and consequently invalid (Art. 58 § 1 of the Civil Code), will be such legal acts between spouses relating to joint assets, the content and purpose of which indicate that they are aimed at dividing the joint property during the statutory joint life. "

Of course, the court is right that the provisions prohibiting the division of joint property during the statutory joint life cannot be circumvented, e.g. through purchase and sale agreements or donation agreements covering the entire property. What, however, if the contract does not apply to the entire property, but only one component of the joint property. What if this asset has a significant value of the joint property. How is the admissibility of such an agreement to be determined by a notary (as such a question will most often refer to real estate)? These questions remain unanswered. In practice, therefore, it will be safer to introduce a state of property separation "for a while", sign an agreement with the spouse on the selected asset, and then re-introduce the state of joint property.


IX 2021

Items of property that bring income

In family law, we deal with the concept of "income-generating property". In the chapter of the family and guardianship code concerning the statutory property regime of spouses there is a provision stipulating that each spouse should reimburse expenses and expenditures made from joint property to his personal property, with the exception of expenses and expenditures necessary for income-generating property (Art. 45 § 1 KRO). Therefore, the question arises as to what can be regarded as an income-generating object and whether such an object can be a non-separated part of the property, e.g. a room.

According to the position of the Supreme Court contained in the decision of May 9, 2013, file ref. II CSK 593/12, the non-separated part of the property may be classified as an income-generating item, if the spouse used this part of the property to perform a freelance profession. Thus, if such a part of the property is, for example, renovated with money from the joint property of the spouses, then the spouse who, thanks to this part of the property, obtained income from performing a freelance profession in it, is not obliged to reimburse expenses and expenses incurred from the joint property. on this part of the property.


VIII 2021

Reimbursement of expenses and expenditures on separate assets before entering into marriage

Pursuant to the resolution of the Civil Chamber of the Supreme Court of March 5, 2003 (file ref III CZP 99/02) it is permissible for one spouse to submit a transfer for his / her benefit during the period of statutory commonality - pursuant to Art. 231 § 1 of the Civil Code - share in the ownership of land, which is separate property of the other spouse, built up with a residential building before entering into marriage, as a result of expenses made by both spouses during cohabitation. Such a view was expressed by the Supreme Court in connection with the legal issue presented to him by the District Court in Krosno. The subject of the case pending before the District Court was a situation in which the spouses, while still cohabiting before entering into a formal relationship, started building a common house, as a result of which the house became the property of only one of the spouses (in the described facts - the husband).

The Supreme Court decided that Art. 45 k.r.o. In the described facts, there were indeed three separate assets between the spouses, i.e. joint property and two separate assets. However, the joint property was irrelevant in the discussed case, since the claims between the later spouses arose even before the marriage was entered into. In such a state of affairs, only the claims of separate estates of the wife and husband were relevant to the case. Thus, the basis for settling the spouses' claims was Art. 231 of the Civil Code, which deals with the purchase of a building erected on someone else's land, and the norm of Art. 45 k.r.o. it did not apply at all.

It is worth noting that the Supreme Court presented one more argument in favor of such a resolution of the disputed issue - it was the protection of the housing interest of the spouse, who, being a co-investor of the house built on the land of his spouse, often economically weaker, may live in it only on the basis of a family title that fades with the cessation of married couples (in the discussed situation, the economically weaker party was the wife). The Supreme Court noted that: The possibility of earlier, even before the termination of joint property, the claim strengthens its legal protection, in particular in the event of a conflict between the spouses, which threatens to lose the co-ownership of the property by that spouse, which would lead to the expiry of the retention under Art. 231 § 1 of the Civil Code.


VII 2021

Taxation of a payable agreement for the division of joint property between the ex-spouse and the heirs of the other spouse

Director of the National Tax Information in the individual ruling of May 24, 2021; 0111-KDIB2-3.4014.16.2021.5. ASZ focused on the problem of a paid agreement for the division of property. In the reality of the present case, the spouses divorced and intended to divide the property before a notary. Unfortunately, before the split took place, one of the spouses died and his inheritance (which included a share of w in the property) was purchased by his two sons. The surviving spouse and heirs decided to conclude a notarized agreement on the division of joint property covering the property that was in the joint property acquired during the marriage, in which the matrimonial property regime was in force.

The authority emphasized that the agreements strictly defined in the act are subject to taxation with tax on civil law transactions. These include the agreement on the division of the estate and the agreement on the dissolution of joint ownership - in the part concerning repayments or subsidies. Such contracts have the same effects as the contract that the spouse and heirs planned to conclude. Due to this, the question arose whether a paid contract (with additional payments and repayments) for the division of joint property between the ex-spouse and the heirs of the other spouse is also subject to taxation.

In the discussed interpretation, the authority stated that the tax was not due. The contract in question is neither an agreement for the dissolution of joint ownership, as it concerns joint property of marriage and its legal effects are different, nor an agreement for the division of inheritance, as it is not concluded between the heirs. The admissibility of such an agreement is confirmed by Art. 46 and 501 of the Family and Guardianship Code.


VI 2021

The concept of "circumstances" in Art. 212 § 1 of the Civil Code

Art. 212 of the Civil Code regulates the methods of judicial dissolution of joint ownership. One of them is, mentioned in § 2, the granting of the thing that cannot be shared with one of the co-owners according to the circumstances, with the obligation to repay the others. The item may also be sold in accordance with the provisions of the Code of Civil Procedure.

It should be noted that the court may, within the limits of Art. 212 of the Civil Code, independently decide on the method of dissolution of joint ownership, based on a specific factual state of affairs (Decision of the Supreme Court of 23 July 1982, file reference number III CRN 181/82, Legalis). However, you cannot award the thing to any of the co-owners against his will, because such actions would be pointless, because it is the owner of the thing who knows best whether he needs the thing (Supreme Court decision of November 4, 1998, file ref.no. II CKN 347 / 98, Legalis). It seems, however, that the court is bound by the joint will of the co-owners as to the method of abolition of co-ownership, as well as the possible indication of the co-owner to be received, provided that such action is consistent with the law and principles of social coexistence (Order of the Supreme Court of 8 June 2017 r., file reference number V CSK 570/16, Legalis). However, this position has not always been shared by jurisprudence.

The priority should be to first try to assign the property to one of the co-owners. Only when this turns out to be impossible is it advisable to sell things. The choice of a specific joint owner depends on the circumstances mentioned in the provision. This concept should be understood as meaning many factors, among which the following can be distinguished: the type and purpose of things, the family status of the co-owners, professional background and type of professional activity, property status and the possibility of repayment of other co-owners (K. Górska, Commentary to Art. 212 of the Civil Code [in:] E. Gniewek (ed.) Civil Code. Commentary, 9th edition, CH BECK 2019).


V 2021

Services provided to the company and the division of joint property

Article 45 of the Family and Guardianship Code regulates the rules of settlements by spouses for expenses and expenditures made during the period of the statutory community property from common property to personal property of each of them and from personal property to joint property.

This provision stipulates that each spouse should reimburse the expenses and outlays made from the joint property on his personal property, with the exception of expenses and expenses necessary for income-producing property. In addition, you can request reimbursement of expenses and expenses that one of the spouses made from his personal property into the joint property. However, it is stipulated that you cannot demand reimbursement of expenses and outlays used to meet the needs of the family, unless they have increased the value of the property at the time of the cessation of community.

The provisions of the Family and Guardianship Code do not define the concept of expenses and outlays made from one property to another. Due to this, there may be doubts as to what may be considered an expense or outlay within the meaning of Art. 45 of the Family and Guardianship Code.

The jurisprudence has decided whether, due to the specific nature of the provision of services to the company, in the event of the division of joint property after the termination of statutory commonality between the spouses, it may be classified as an outlay or expenditure within the meaning of the Family and Guardianship Code. So far, the Supreme Court has supported such a position.

In the decision of January 16, 2013, reference number II CSK 193/12, the Supreme Court stated, however, that the service provided by the other spouse - a partner in a civil partnership - to the company cannot be considered an expense or outlay. This means that the spouse may not claim the reimbursement of the value of services provided by the other spouse to the civil law partnership pursuant to Art. 45 of the Family and Guardianship Code.


IV 2021

No settlement of all items in the division of property

In division proceedings, the court hearing the case is required to ex officio determine the composition of the joint property and then divide it. Moreover, the court settles all disputes of the co-owners over the ownership right, as well as mutual claims of the co-owners for possession of the property. All claims of this type should be reported already in the course of the departmental proceedings, because after the maturity of the decision, the parties cannot pursue them. The above rules result directly from the provisions on the division of the estate (Article 684 of the Code of Civil Procedure) and the division of joint ownership (Article 618 of the Code of Civil Procedure), which apply accordingly to other division proceedings.

In the decision on the division of inheritance or marital property, the Court should therefore rule separately on each item about which there is a dispute or was included in the joint property (or inheritance property). In practice, a question may arise what to do if the court omits some of the disputed items in the judgment and fails to divide them. In such a case, does the failure to divide the object mean that the object is not included in the joint property (and therefore cannot be divided), or does the court mistakenly omit the issue? The issue is important because in the first case an appeal should be made against the decision, and in the second - an application for supplementation of the decision.

The above-mentioned issues were raised by the Supreme Court in the resolution of September 17, 1969, III CZP 70/69, stating that in the described case the party should challenge the judgment with an appeal. The Supreme Court emphasized that in the proceeding for the division of property, the court examines all relations related to this division and that the decision on the division of joint property covers the entirety of the case. Due to this, the fact that an asset was not included in the decision is a substantially negative decision, corresponding to the fact that this asset was not included in the assets subject to division. The dissatisfied party may challenge the judgment, accusing the wrongful determination of the composition of the joint property, reconciling the entire judgment in its entirety, because correct determination of the composition and value of the joint property also determines the correctness of the remaining dispositions of the judgment.


III 2021

Claim for reimbursement of expenditures to the common benefit after the sale of shares

In the resolution of the Supreme Court of February 21, 2008, ref. No. III CZP 144/07, the Supreme Court considered whether the liability for satisfying the claims of the co-owner who made the expenditure for the joint is borne by persons who are co-owners of things at the time of ruling on liability in this respect, or by persons who are co-owners at the time when the expenditure is has been made.

Benefits and other revenues from the common thing fall to the co-owners in relation to the size of the shares. In the same proportion, joint owners bear the expenses and burdens related to the joint property. Article 207 of the Civil Code, which specifies the rules of participation in the expenses and revenues contributed to the joint property by co-owners, does not clearly define whether it concerns co-owners at the time of the decision or at the time of making the expenditure. For this reason, it was necessary to dispel interpretation doubts by the Supreme Court.

The Supreme Court pointed out that the claim for the reimbursement of the value of the expenditure incurred by one of the co-owners for the benefit of the joint venture is due against persons who were co-owners at the time the expenditure was made. In the opinion of the court, the provisions of the code indicate that the claim for reimbursement of the appropriate part of the expenses is a relative claim, i.e. arising and implemented in relations between the co-owner who incurred the expenses and the entity that, at the time of incurring them, was obliged to pay the appropriate part of the expenses.

The Supreme Court also considered whether it may be significant that the current co-owner of the property, obliged to return the value of the expenditure, acquired a share in the joint ownership on the basis of a free-of-charge agreement. In the case at hand, the co-owners sold their shares in the form of a donation. In the opinion of the Supreme Court, the free acquisition of a share in joint ownership will not matter. With art. 207 of the Civil Code, it does not follow that the legislator links the modification of the rules of settlements between co-owners with the gratuitous nature of the acquisition of a share.

It should be noted that the previous jurisprudence of the courts was different. However, since 2008, the courts have uniformly ruled that the claim for reimbursement of the value of expenditure incurred by one of the co-owners for the benefit of the joint venture against persons who were co-owners at the time the expenditure was made, also when these persons sold their shares free of charge.


II 2021

Appeal and the court's failure to include the decision in the final judgment

If the court did not include a negative decision in the substantive decision concluding the proceedings, e.g. dismissing the application for settlement of outlays, the party should submit an application for supplementing the decision. In such a situation, an appeal would be directed against a non-existent judgment. This view was expressed by the Supreme Court in its decision of 20 December 2019, file ref. IV CZ 103/19.

In the case in question, the District Court ruled on the outlays made on the joint property, deciding to grant the application of a participant in the proceedings in part. The court, however, did not dismiss the application for the remainder of the expenditure, which it should have done. The participant appealed to the District Court, which indicated that the appeal was inadmissible in this situation. The court justified its inadmissibility in this respect with the lack of a decision in the District Court's decision on partial dismissal of the application regarding the settlement of outlays.

The Supreme Court drew attention to the problem of the admissibility of an appeal with an appeal that did not exist in the decision on the division of the joint property of the former spouses.

According to Art. 684 of the Code of Civil Procedure, which is relevant in the case of the division of joint property, the composition and value of the divided estate is determined by the court. Therefore, the court is obliged to determine the composition and value of the joint property to be divided. In practice, this means that it is the court that is obliged to determine the value of the outlays made of this property on personal property.

The Court's failure to resolve, even partially, in the operative part of the decision will be subject to verification by submitting an application to supplement the decision, and not by lodging an appeal.


I 2021

Determining the market value of a mortgage-encumbered property in proceedings for the division of property

If it is necessary to divide the joint property of the spouses (e.g. due to divorce), the issue of determining the value of the property acquired by the spouses on which they jointly established a mortgage may arise. This problem has often been considered by the Supreme Court. In the decision of March 13, 2020, file no. III CZP 64/19 of the Supreme Court ruled that in cases relating to the division of marital property, the value of the mortgage, as a rule, does not affect the value of the common property allocated to one of the spouses as a result of the division.

The court ruled that when selling the real estate, the price determines its market value, and the mortgage burden only affects the manner of disposing of the price by paying the debt in order to terminate the mortgage.

The mortgage is an accessory, as it secures the debt and may exist separately from the personal obligation to satisfy the debt also from other assets apart from the encumbered real estate. The sale of the mortgaged property is therefore irrelevant to personal liability for the debt.

Thus, the Supreme Court confirmed the earlier interpretation concerning the determination of the value of the real estate encumbered with the mortgage. According to it, the mortgage on the real estate of the former spouses does not affect the market value of the real estate, taken by the court as the basis for determining the amount of repayment or additional payment due to the spouse who does not receive real estate or the right to the premises. According to the court, the division of joint property does not affect the maintenance of the joint and personal obligation of both spouses to repay the loan, even after the division of the joint property.

The Supreme Court also recalled what circumstances are of legal importance in determining the value of real estate. He pointed out that when determining the market value of the real estate, the real estate appraiser takes into account, in particular, the purpose of the appraisal, type and location of the real estate, intended use in the local plan, the degree of technical infrastructure equipment, the state of its development and available data on prices, income and features of similar real estate.

At the same time, the court recalled that it is possible to pursue a claim between spouses for the return of the amount of a liability secured by a mortgage, paid by one of them after the decision on the division of the joint property becomes final.


XII 2020

Usually, the bank will not participate in the case for the division of joint property

In the legal literature and judicature, one of the formal and legal prerequisites for the admissibility of an appeal is the existence of a legal interest in appealing against a judgment. If it is not shown, the appeal shall be rejected, unless its recognition is justified on the grounds of public interest.

It is assumed that the condition for granting judicial protection is the existence of an objective need for it to be obtained by the entity asserting its rights, which is defined as a legal interest. Initiating civil proceedings and undertaking procedural actions by private entities should be confronted with whether there is an objective need to initiate proceedings in a specific case.

However, the Code of Civil Procedure stipulates that the interested party may participate in any state of the case until the end of the proceedings in the second instance. According to Art. 510 § 1 of the Code of Civil Procedure, anyone whose rights are affected by the outcome of the case is interested, and if they take part in the case, they become its participant. In the judicature, the concept of an interested person is defined broadly. It is assumed that the legal interest within the meaning of this provision may be both direct and indirect. In the decision of September 25, 2019, file no. III CZ 32/19 The Supreme Court stated that the broad understanding of a legal interest as a premise justifying the assignment of the status of an interested party to a specific person does not exempt the court from the obligation to assess in the facts of a given case who is and who should be a participant in the proceedings. In this way, the Supreme Court places an obligation on the courts to assess the question of being concerned in the context of each specific case.

In the same case, the Supreme Court stated that the bank, as a mortgage creditor, has no legal interest in participating in a case for the division of joint property, if the division of the mortgage-encumbered property takes place by granting it to one of the spouses or if the property is physically divided.

KS


XI 2020

Marital joint ownership and shares in a limited liability company

It may happen that the contribution made to the limited liability company belongs to the property of the joint partner and his spouse. In the resolution of July 7, 2016 (reference number III CZP 32/16), the Supreme Court answered the question whether the share in the company acquired by the partner is then part of the joint property of the spouses.

In the above-mentioned judgment, the Supreme Court decided that if the contribution (e.g. cash) to the limited liability company belonged to the property of the joint partner and his spouse, also the share in the company taken up by the partner will be included in this property. Thus, the Supreme Court supported the concept of belonging of shares to the property of spouses, which is the dominant in the doctrine and jurisprudence.

Any doubts concerning the belonging of a given item should be resolved in favor of the joint property. It is presumed that the property acquired by one of the spouses during the marital joint property is part of the joint property of the husband and wife. It should be noted that this presumption can be rebutted by proving that the acquisition was made with funds constituting the personal property of one of the spouses.

On the other hand, even though the funds for taking up shares in a limited liability company in such a situation they come from joint property, but the acquisition is made only by one of the spouses. Therefore, only the spouse who participated in the transaction related to the acquisition becomes a partner of the partnership.

Thus, the Supreme Court separated corporate rights from property rights. Corporate rights (e.g. voting rights at the shareholders' meeting) are part of the personal property of the partner spouse because he took up the shares. On the other hand, property rights related to shares (eg the right to dividend) will become part of the joint property of the spouses.

It is also worth paying attention to the judgment issued by the Supreme Court on April 4, 2019 in the case with reference number III CSK 146/17. It was resolved that the sale of shares in the company (e.g. through a donation) is invalid if the other spouse did not know about it. Thus, the Supreme Court opted for the protection of the spouse's interests and confirmed the position of the doctrine that the agreement for the sale of shares in a limited liability company concluded without the consent of the other spouse is invalid. According to the Supreme Court's ruling, actions aimed at disposing of shares or transferring economic activity to another person without the consent and knowledge of the spouse have no legal justification. At the same time, the Supreme Court noted that despite the fact that Art. 17 of the Act on the National Court Register establishes the presumption that the data entered in the National Court Register are true, it does not ensure protection of the buyer of shares against unauthorized persons. This provision only establishes a rebuttable presumption which may be rebutted.

KS


X 2020

Important reasons for establishing property separation

According to Art. 52 § 1 of the Family and Guardianship Code, for important reasons, each spouse may request the court to establish separation of property. However, this provision does not specify specific situations and reasons that could be considered important by the court.

In the judgment of January 31, 2003, file ref. IV CKN 1710/00 The Supreme Court emphasized the role of the matrimonial property regime. Its purpose is to strengthen the family and to provide it with a stable material base, and it fully implements the principle of equal rights of both spouses in the field of property relations, constituting the material basis for the functioning of the family. By important reasons giving rise to the abolition of this unity, the court understands the emergence of such a situation, which in specific factual circumstances causes a state that entails a violation or a serious threat to the property interests of one of the spouses and, as a rule, also the good of the family.

The Supreme Court has repeatedly made statements as examples of the existence of these important reasons.

• separation

In the judgment of November 24, 2017, file ref. I CSK 118/17 as one of such reasons, the Supreme Court recognized the separation between the spouses. The court stated that a long-term de facto separation may justify the establishment of property separation by the court, if this state of affairs prevents cooperation in the management of the joint property, entails a violation or a serious threat to the property interests of one of the spouses, or results in a permanent break of any property relations and the inability to take up joint economic decisions.

• Breaking off property relations

However, in the judgment of January 14, 2005, ref. No. III CK 112/04, the Supreme Court stated that the condition for the application of Art. 52 § 1 of the Family and Guardianship Code may result in a permanent severance of all property relations and the inability to make joint economic decisions.

• Criminal proceedings

In the judgment of 15 October 1998 (I CKN 854/97), the Supreme Court ruled that the initiation of criminal proceedings against one of the spouses may constitute a valid reason to abolish the statutory community.

• Wasting money

In the judgment of February 10, 1997 (file no. I CKN 70/96), the Supreme Court recognized the creation by one of the spouses of a situation in which the continuation of the joint property threatens the interests of the other spouse and the good of the family as an important reason justifying the abolition of joint property between spouses. , which may take place especially when one of the spouses squanders their joint property or is completely mismanaged.

• Reckless incurring debts

It is assumed that the recognition as "valid reason" within the meaning of Art. 52 § 1 of the Family and Guardianship Code, incl. the reckless incurring of debts by one of the spouses which undermine the basis of the family's livelihood. At the same time, the court noted that in such a situation, the determination by the court requires both an element of recklessness and a threat to the existence of the family (II CRN 95/93 - Supreme Court judgment, judgment of 17 September 1993).

It should be remembered that it is always up to the court hearing the case to decide whether the given claimants are valid. There is no doubt, however, that the jurisprudence of the Supreme Court has a large impact on the decisions of other courts.

KS


IX 2020

Division of property and rights in the company

The moment the marriage is concluded between the spouses, joint property (statutory) arises. In accordance with the provisions of the Family and Guardianship Code, this community includes property acquired during its lifetime by both spouses or by one of them.

What happens when there are shares in the company in the joint property? They will then be treated differently in terms of property relations between the spouses and differently in the relationship between the company and its partners.

In the decision of 31.01.2013, II CSK 349/12, the Supreme Court indicated that the shares in a limited liability company acquired by one of the spouses for funds from the joint property are included in this property. Such a position is accepted in the literature and jurisprudence. However, it is stipulated that the result of the inconsistency between commercial law and family law is the difficulty of reconciling the status of a partner resulting from the partnership agreement, which is only enjoyed by the spouse acquiring shares, with the joint nature of the marital property to which the acquired shares belong.

In the above decision, the Supreme Court indicated that the shares in a limited liability company belonging to the joint property may, in principle, be divided between the former spouses, and thus also accrue to the co-owner who was not a partner. The only obstacle to such a division would be the inclusion in the articles of association, as provided for in the Commercial Companies Code, of a reservation limiting or excluding joining the partnership of a spouse in the event that the shares are jointly owned.

In the case at hand, the disputed shares were disposed of after the end of the statutory commonality between the parties. According to the court, the effectiveness of this type of regulation should be the subject of an assessment carried out in proceedings for the division of property. The consequence of establishing the ineffectiveness of the regulation is that the property is divided as if the disposal had not taken place. It should be noted, however, that in relation to third parties, the allocation of an asset that has been sold in the decision to divide it up, only gives the spouse the right to take action against the buyer to whom the asset has been allocated. It does not, however, constitute a binding title for the acquirer, determining the right of the spouse indicated therein to the sold asset.

To sum up, the interpretation of the Supreme Court means that in the event that the marital cohabitation ceases or is abolished, part of the shares may go to the spouse who previously did not have the formal status of a partner. This will be the case, for example, in the event of divorce. This means that the former spouse may then become a partner in the partnership.

In order to avoid such problems in practice, it is possible to regulate matrimonial matters in the articles of association. According to Art. 1831 of the Commercial Companies Code, this agreement may limit or exclude a spouse's joining the partnership if the share or shares are jointly owned.


VIII 2020

Combining the division of inheritance and division of joint property in one proceeding

Proceedings for the division of joint property and for the division of inheritance are, as a rule, two separate proceedings. They can only be connected as a result of a partial personal identity (e.g. as a result of legal succession after the deceased ex-spouse) and objective identity. This was the opinion of the Supreme Court in its decision of January 13, 2016, V CSK 254/15.

The division of the estate and the division of joint property may be combined in one proceeding, if the entire estate or individual items included in it constitute joint ownership for reasons other than inheritance. The provisions on the abolition of joint ownership (Civil Procedure Code Art. 688, Civil Procedure Code Art. 567 § 3) apply accordingly.

Art. 689 of the Code of Civil Procedure allows the case for the division of inheritance to be combined in one proceeding with a case for the dissolution of joint ownership and a case for the division of joint property after the termination of the joint property of the spouses. If the inheritance includes the testator's share of the property covered by the statutory matrimonial commonality, the division of the joint property, combined in the same proceedings, is necessary to divide the inheritance.

It will be different in a situation where a final judgment has already been passed, deciding on the demand to establish unequal shares of the spouses in the joint property and on claims for reimbursement of expenses, expenditure and other benefits from the joint property for separate property, or vice versa, or the partial division of the inheritance does not apply to the testator's share in the property common.

The composition and value of the division and the joint property to be divided shall be determined by the court. Composition and condition are determined according to the moment of its opening, and value according to prices at the time of the division.

At the same time, the Supreme Court states that there is no independent normative basis for the merger of cases concerning the division of inheritance and division of joint property with a case for division of the property of a civil partnership.


VII 2020

Leasing and divorce - who owns the car leased before and bought out after the divorce?

According to art. 31 of the Family and Guardianship Code, upon entering into marriage, a property community is created between the spouses pursuant to the Act, covering property items acquired during its duration by both spouses or by one of them. For assets acquired during the marriage to be included in the personal property, one of the conditions contained in art. 33 KRiO. As indicated in the judgment of the Supreme Court of 28 January 2015, reference number II CSK 322/14 "expenditures from joint assets on the personal assets of a spouse must, at the time of their making, increase (purchase of new components, improvement of existing ones) or maintenance personal property of the spouse. "

The subject of the above the ruling was the issue of how to calculate the costs and benefits of a lease agreement with the option to purchase the subject of this agreement, if the contract was concluded by one of the spouses during the validity of the matrimonial property community, paid mainly for the joint property.

The division of joint property takes into account its value as at the date of division, but according to the status quo at the moment of termination of joint property. In the said judgment, at the time of termination of the joint property, the joint property included the right to use the property under the lease agreement and a claim for its purchase. After the cessation of jointness, the claim for purchase was transformed into ownership. Despite the fact that this took place after the cessation of jointness, the resulting property right should also be treated as joint (entering joint property). The court stated in the justification that subsequent transformation of the claim did not change the common nature of the property rights of the parties.

To sum up, both the rights and obligations under the leasing contract and the purchased vehicle, even after the termination of the property community, are jointly owned by the spouses.


VI 2020

Division of property assets and the moment of acquisition of real estate within the meaning of the Income Tax Act.

In accordance with art. 10 paragraph 1 point 8 of the Personal Income Tax Act, the sale of real estate after 5 tax years on the purchase / construction of real estate is not a source of income, and therefore is not subject to income tax. This rule is relatively simple. Interpretation problems arise, however, when the spouses acquired the property jointly, and after divorce, as a result of the division of property, it was granted to one of them. In this case, can you sell without tax after 5 years of acquisition with your spouse or from "acquisition to personal property" - after the division of property.

The above doubts were dispelled by the Director of the National Treasury Information by issuing an individual tax decision of August 6, 2019 No. 0115-KDIT2-1.4011.224.2019.1.DW. It was stated there that the date of purchase referred to in art. 10 paragraph 1 point 8 of the Personal Income Tax Act is the acquisition of joint property of the spouses.

The authority referred to art. 10 paragraph 6 of the Personal Income Tax Act, stating that in the event of a paid sale after termination of matrimonial property joint property, which was acquired or built during this community, the period of 5 years is counted from the end of the calendar year in which the property was acquired to joint property of the spouses or their construction during the marriage joint property.

It should be remembered that the above rules apply only in the case of the sale of real estate which was not carried out in the course of business activity. If we bought the property only for profit (and did not serve us for the purposes of new housing) or if we make many transactions of this type in a relatively short time, the Tax Office may consider that we conduct business in this area. In this case, the "five year rule" will not apply and we will be subject to income tax.


V 2020

Liability for debts incurred before marriage

In accordance with art. 31 § 1 of the Code, upon entering into marriage, a property community arises between the spouses pursuant to the Act. It covers property acquired during its duration by both spouses or by one of them. Such items fall into the so-called joint property. Property items not covered by statutory community belong to the personal property of each of the spouses. One of the items belonging to the personal property of the spouses are claims arising from marriage during work or due to other gainful activities of one of the spouses.

In the light of art. 29 § 1 of the Act of August 29, 1997, the Tax Code, in the case of married persons, liability covers the separate property of the taxpayer and the joint property of the taxpayer and his spouse.

In this case, the question arises whether the spouse will be liable for the tax obligations of the other spouse arising after marriage, if the arrears arose a few years before entering into marriage?

The answer to this question was provided by the Director of the National Treasury Information in tax interpretation number 0111-KDIB3-1.4017.11.2019.1.KO. A taxpayer who got married without tax separation, a few months later bought a flat with his wife for joint property. A few years ago, the Applicant's wife was a member of the management board of a limited liability company. In connection with this circumstance, two tax proceedings were instituted against her regarding the declaration of her joint and several liability for tax arrears prior to the marriage.

The applicant will not be responsible for the tax liabilities of his wife with his own personal property and joint property that arose as a result of his wife's joint liability for tax arrears of a limited liability company if the arrears arose before marriage. This means that the property and rights belonging to the joint marital property of the Applicant and his wife will not be able to be enforced to satisfy or secure tax obligations chargeable to his wife for joint and several liability for tax arrears of a limited liability company.

Thus, the director of the KIS stated that if the arrears arose before marriage, the taxpayer would not be responsible for the obligations of his wife with joint or personal property. He doesn't have to worry about losing his flat.


IV 2020

Consumer bankruptcy and the joint property of spouses

If the debtor goes bankrupt, his property enters the so-called bankruptcy estate, from which the creditors then satisfy themselves. However, if the debtor is married and there is a property relationship between the spouses, the question arises as to the joint property. Does he also go to bankruptcy estate or is he excluded from it?

The situation is clear when the spouse-debtor was in business. These issues are directly regulated by art. 124 of the Bankruptcy Law, which provides that on the day of declaration of bankruptcy, property separation arises, the joint property of the spouses enters the estate and its division is inadmissible. In such a situation, the spouse of the bankrupt may only assert claims for participation in the joint property by reporting this claim to the judge-commissioner. This means that the creditor's interest is given priority over the interest of the spouse.

In the doctrine and case-law, the issue of joint property in consumer bankruptcy was contentious, in which the above-mentioned art. 124 of the Bankruptcy Act shall apply only accordingly. Ultimately, this issue was decided by the Supreme Court by a resolution of 16 December 2019 (file reference number III CZP 7/19), in which it stated that general rules apply to consumer bankruptcy, i.e.

  • property separation arises between spouses,
  • all joint assets are included in the bankruptcy estate and
  • the division of joint property is not allowed.

The spouse may submit his claims to the part of his property due to the judge-commissioner.


II 2020

Division of shares in a company with limited liability, in which the spouse is not a partner

When dividing the property that was covered by statutory community, the Court may grant the shares of a limited liability company belonging to that property to a former non-partner only with his consent. The above conclusions were reached by the Supreme Court in a decision of 16 March 2018 (file reference number IV CSK 105/17).

The above statement concerns the situation in which shares in a limited liability company were acquired for funds belonging to the joint property of the spouses, but only one of them became a partner in that company. This state of affairs is of course possible, because, as the Court stated, the property sphere should be clearly distinguished from the corporate sphere.

The court also noted that a spouse who was not yet a partner in the Company may become one on the basis of a court decision issued in a case concerning the division of joint property of spouses after the termination of statutory jointness. However, you cannot make someone a partner without his consent. This is due to the fact that the principle of voluntary participation applies to all corporations (associations of persons) - and the corporation, despite clear capital elements, is also a limited liability company

The above argument was supported by rich case law of the Supreme Court, min. by the resolution of the Supreme Court of July 7, 2016, III CZP 32/16, by decision of November 23, 2000, I CKN 950/98, or by judgments: of May 20, 1999, I CKN 1146/97; of October 5, 2005, IV CK 99/05; of January 21, 2009, II CSK 446/08.

In the presented situation, instead of shares, the court will grant repayment to the spouse who is not a partner (and therefore the monetary equivalent of the part of the shares due to him in the Company). Of course, provided that the spouse does not agree to "enter" the Company.>


I 2020

Central Information on bank accounts

Often the problem of heirs when making a division of the estate is the lack of information about where the deceased had their bank accounts. In such a situation, Central Bank information about bank accounts can be of help (it has been operating since July 1, 2016). It is enough to submit an appropriate application to any bank or credit unions for information and you can obtain information from all banks and credit unions. The service is payable, as the bank charges a commission for providing answers. The amount of commission varies depending on the bank.


XII 2019

No limitation period for requesting unequal shares

In accordance with art. 43 of the Family and Guardianship Code, both spouses have equal shares in the joint property. However, as parish says 2 of this article, for important reasons, each of them may request a fixing of shares, taking into account the extent to which the parties contributed to its creation. As the Supreme Court stated in its resolution reference number III CZP 83/72 of November 22, 1972, request under art. 43 of the Family and Guardianship Code is not of a financial nature, but it aims to shape a different legal relationship. Consequently, such a claim is not subject to a limitation period. The Supreme Court also supported these conclusions by the provisions of Art. 220 and 1035 of the Civil Code, from which it follows that the provisions on joint ownership apply to joint property, which expressly exclude the limitation period for claims ending it. However, according to art. 567 of the Code of Civil Procedure, settlement of unequal shares is part of the division of property, therefore the statute of limitations also does not apply. Consequently, the spouses may submit to the court an application for determination of unequal shares in joint property without a time limit, but only until the division of joint property.

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XI 2019

Relations between the personal property of spouses and joint property

The most common among the matrimonial property regimes is community property. Three properties operate simultaneously in this system: wife's personal property, husband's personal property and joint property. Distinguishing which items fall into which property can be problematic in some situations. It can be difficult to determine which of the properties entered an object that was bought partly with money from the personal property of one of the spouses and partly from joint property.

This issue has been raised many times in the past by the Supreme Court with various outcomes. Finally, on October 19, 2018, the Supreme Court issued a resolution composed of three judges (file reference number III CZP 45/18), in which he argued for the rightness of the theory according to which "an item acquired during marriage, in which statutory property community applies , in part from the proceeds of the personal property of one of the spouses, and partly from their joint property, enters the personal property of the spouse and the joint property of the spouses in shares corresponding to the ratio of funds allocated from those assets for its acquisition, unless a benefit from personal property or the joint property transferred for the acquisition of things was an expenditure on the joint or personal property, respectively. "

For example, you can imagine a marriage, Ania and Tomek, between which there is property commonality. Ania received PLN 300,000 in inheritance (inheritance and donations are in principle included in the spouse's personal property). The spouses collected together (from remuneration for work, which as a rule enters the joint property) PLN 200,000 and bought a flat for PLN 500,000. This flat will be 60% owned by Ania and 40% jointly by both. If Ania and Tomek divorce and there is an even division of property (which is the most typical situation), Ania will be the owner of 80% of the apartment, and Tomek 20% of the apartment.

It should be remembered that the resolutions of the Supreme Court are not binding on the courts, therefore different judgments may appear in individual cases. However, such situations are extremely rare because the Supreme Court enjoys high authority and its judgments and resolutions are considered valuable interpretative guidelines.



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X 2019

No division of property when convicted of abuse

The Supreme Court in a decision of June 7, 2019 (file reference number V CZ 30/19) stated that if one of the spouses was convicted of abuse of the family, he cannot demand a division of the property that would lead to the situation that it would become a neighbor of his ex-wife.

In the case described, the division of real estate was to divide the shared house into 2 apartments (one for wife and one for husband). A serious conflict of parties resulting from the fact that the participant was abused by his ex-wife and minor children, which was established in a criminal trial, is a circumstance that prevents the division of real estate despite the existence of technical possibilities. Although the division of the subject of joint ownership is by its nature the most appropriate way out of joint ownership, all circumstances must be considered, including the possible conflicting of the division with the socio-economic purpose of the property, as if premises are separated, the owners will need to cooperate in order to maintain common parts of the building . This necessitates careful consideration of whether co-owners will be able to work together. In the circumstances of the case, this is not a typical conflict of divorced spouses, but a conviction of a participant for mistreatment of the applicant and minor children and for punishable threats against the applicant's partner. The purpose of the division is to grant each owner a place to live in, because this is the socio-economic purpose of the property. The division assuming the sale of the premises by one of the co-owners because of a justified fear of the other co-owner denies such purpose.



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