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.