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.