If the debtor goes bankrupt, his property enters the so-called bankruptcy estate, from which the creditors then satisfy themselves. However, if the debtor is married and there is a property relationship between the spouses, the question arises as to the joint property. Does he also go to bankruptcy estate or is he excluded from it?
The situation is clear when the spouse-debtor was in business. These issues are directly regulated by art. 124 of the Bankruptcy Law, which provides that on the day of declaration of bankruptcy, property separation arises, the joint property of the spouses enters the estate and its division is inadmissible. In such a situation, the spouse of the bankrupt may only assert claims for participation in the joint property by reporting this claim to the judge-commissioner. This means that the creditor’s interest is given priority over the interest of the spouse.
In the doctrine and case-law, the issue of joint property in consumer bankruptcy was contentious, in which the above-mentioned art. 124 of the Bankruptcy Act shall apply only accordingly. Ultimately, this issue was decided by the Supreme Court by a resolution of 16 December 2019 (file reference number III CZP 7/19), in which it stated that general rules apply to consumer bankruptcy, i.e.
- property separation arises between spouses,
- all joint assets are included in the bankruptcy estate and
- the division of joint property is not allowed.
The spouse may submit his claims to the part of his property due to the judge-commissioner.