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