he moment the marriage is concluded between the spouses, joint property (statutory) arises. In accordance with the provisions of the Family and Guardianship Code, this community includes property acquired during its lifetime by both spouses or by one of them.
What happens when there are shares in the company in the joint property? They will then be treated differently in terms of property relations between the spouses and differently in the relationship between the company and its partners.
In the decision of 31.01.2013, II CSK 349/12, the Supreme Court indicated that the shares in a limited liability company acquired by one of the spouses for funds from the joint property are included in this property. Such a position is accepted in the literature and jurisprudence. However, it is stipulated that the result of the inconsistency between commercial law and family law is the difficulty of reconciling the status of a partner resulting from the partnership agreement, which is only enjoyed by the spouse acquiring shares, with the joint nature of the marital property to which the acquired shares belong.
In the above decision, the Supreme Court indicated that the shares in a limited liability company belonging to the joint property may, in principle, be divided between the former spouses, and thus also accrue to the co-owner who was not a partner. The only obstacle to such a division would be the inclusion in the articles of association, as provided for in the Commercial Companies Code, of a reservation limiting or excluding joining the partnership of a spouse in the event that the shares are jointly owned.
In the case at hand, the disputed shares were disposed of after the end of the statutory commonality between the parties. According to the court, the effectiveness of this type of regulation should be the subject of an assessment carried out in proceedings for the division of property. The consequence of establishing the ineffectiveness of the regulation is that the property is divided as if the disposal had not taken place. It should be noted, however, that in relation to third parties, the allocation of an asset that has been sold in the decision to divide it up, only gives the spouse the right to take action against the buyer to whom the asset has been allocated. It does not, however, constitute a binding title for the acquirer, determining the right of the spouse indicated therein to the sold asset.
To sum up, the interpretation of the Supreme Court means that in the event that the marital cohabitation ceases or is abolished, part of the shares may go to the spouse who previously did not have the formal status of a partner. This will be the case, for example, in the event of divorce. This means that the former spouse may then become a partner in the partnership.
In order to avoid such problems in practice, it is possible to regulate matrimonial matters in the articles of association. According to Art. 1831 of the Commercial Companies Code, this agreement may limit or exclude a spouse’s joining the partnership if the share or shares are jointly owned.