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