In the decision of 20 August 2025 (ref. I CSK 404/25), the Supreme Court recalled the important distinction between the prerequisites for establishing separation of property for the future and the prerequisites for its establishment on a date earlier than the date of filing the action. The Court’s position deserves attention from the point of view of the practice of family property law, especially in the context of the growing number of divorce cases preceded by long-term de facto separation of spouses.
In the case which is the subject of the cassation appeal, the plaintiff demanded a ruling on the separation of property with a retroactive date, arguing that he had been separated from the other spouse for a long time, and moreover, he had been independently accumulating savings, which – in his opinion – should not be subject to the division of joint property. The Supreme Court refused to accept the cassation appeal for consideration, finding, m.in, that the legal issues presented were too casuistic in nature and did not meet the requirement of generality.
The most important element of the ruling in question, however, is the clear distinction between two legal bases: „important reasons” (Art. 52 §1 of the Family and Guardianship Code), constituting a prerequisite for the decree of separation of property at the request of one of the spouses, and „exceptional cases” (Art. 52 §2 of the Family and Guardianship Code), which allow for the ruling of this separation with a retroactive date. As the Supreme Court rightly emphasised, the mere fact of de facto separation – although it is often an important reason for establishing separation – cannot automatically determine the existence of an „exceptional case” justifying retroactive action. In each case, an in-depth analysis of the factual circumstances is necessary, including in particular an assessment of whether during the period of separation there was an actual cessation of cooperation between the spouses in the management of the joint property.
In the light of the discussed ruling, it is worth emphasizing that the practice of using the institution of separation of property as a tool to protect the personal property of one of the spouses should be undertaken with particular caution. The court, even if the separation is established, is not obliged to rule on the separation with a retroactive date – it only has discretion in this respect, the exercise of which depends on the overall assessment of the case.
For legal practice, this ruling reminds of the importance of precise formulation of legal demands and arguments in cases of separation of property, as well as of the need to use family law institutions in a manner consistent with their ratio legis, with respect for the principle of the good of the family and the equality of the spouses’ shares in the joint property.