Pursuant to Art. 36 § 3 of the Family and Guardianship Code, the spouse manages the objects used by the spouse to practice his profession or gainful employment.
The family and guardianship code does not contain a list of items used for the exercise of a profession or gainful employment. However, some guidelines for defining the above-mentioned the definitions are given to us by doctrine. It is pointed out that “It is of great practical importance to define the criterion according to which it is necessary to decide whether a given object is used for the exercise of a profession or business activity. It was rightly stated in the literature that the determination in question should be based on specific circumstances. The scope of the concept of an asset is therefore wide and may include, for example, a motor vehicle, but also an enterprise „(B. Kubica [in:] Family and Guardianship Code. Commentary, edited by M. Fras, M. Habdas, Warsaw 2021, Art. 36 ).
Moreover, „the use of the word” spouse „in the singular indicates that this particular regime will not apply when certain items are used by both spouses for their jointly gainful employment or profession, or if they are useful to both spouses for a profession performed separately by each of them, or a separate gainful activity ”(A. Sylwestrzak [in:] Commentary to some provisions of the Family and Guardianship Code [in:] Management of joint property. Commentary, Warsaw 2016, art. 36). The provision states that an item used to perform a gainful activity may only be used by one spouse.
However, can shares or stocks belonging to joint property be regarded as „items for the purpose of carrying out a profit-making activity”? There is a difference of opinion in the doctrine as to whether the disposal of shares constitutes a gainful activity. Rather, it is recognized that passive forms of participation in trading (eg buying and selling shares) do not fall within the scope of the concept of „gainful activity”. The situation may be interpreted in various ways if the ownership of shares is associated with the obligation to provide services to the Company. In such a case, it can indeed be considered whether we are dealing only with passive participation in trade. The specific circumstances of the case would then be decisive.