It happens that one of the spouses has unsettled obligations incurred before the marriage and the creation of a statutory or contractual property regime. In a situation where the debtor spouse enters into a legal dispute in which a judgment is issued ordering payment to the creditor, the other spouse, as a person who is not a debtor, should be aware of the legal protection measures to which he or she is entitled.
Often in such a situation, the creditor, after obtaining a court decision favorable to him or her, does not protect the legal interest of the debtor’s spouse, i.e. the person who is not a debtor towards this creditor, by taking further legal steps to quickly recover the debt through enforcement proceedings.
In order to refer the judgment to bailiff enforcement, the creditor must obtain a court enforcement clause. Filing an application to a common court for the granting of an enforcement clause initiates the enforcement clause proceedings in court. The debtor’s spouse may already at this stage raise objections arising from art. Article 41 § 3 of the Family and Guardianship Code, according to which: If the claim arose before the establishment of the community of property or concerns the personal property of one of the spouses, the creditor may demand satisfaction from the personal property of the debtor, from the remuneration for work or from the income obtained by the debtor from other gainful activity, as well as from the benefits obtained from his rights, referred to in Article 33 point 9. Legal intervention at this stage is, however, difficult, because the court does not, as a rule, deliver an application for granting an enforcement clause for a given enforcement order to the debtor or the debtor’s spouse, therefore it is difficult for the spouse who is the debtor or the debtor’s spouse to take a position before the court grants an enforcement clause. Additionally, at this stage of the case, the Court’s examination of the validity of the claim confirmed by the enforcement order is limited.
If an enforcement clause is granted, the content of which allows for enforcement to the extent that it violates the rights of the spouse who is not the debtor, the legal remedies of this spouse are different. The Supreme Court mentioned this in its judgment of 17 January 2020 (reference number: IV CSK 499/18), from which it follows that a spouse who is not a debtor may – by filing an anti-enforcement action – request that the enforcement title be deprived in whole or in part, or that it be limited. Importantly, during the anti-enforcement proceedings, this spouse may raise not only the objections to which he or she is entitled as a non-debtor, but also raise objections that the debtor spouse did not previously raise in the proceedings concluded with the issuance of an enforcement title, although he or she was entitled to do so by operation of law, such as the objection of fulfillment of the obligation, limitation or questioning the very existence of the obligation raised in the action filed by the creditor. The legal views of the Supreme Court result directly from the content of Article Article 840 § 1 item 3 of the Code of Civil Procedure: The debtor may, by way of a lawsuit, demand that the enforcement title be deprived of enforceability in whole or in part or that it be restricted if the spouse against whom the court has issued an enforcement clause pursuant to Article 787 proves that the enforced performance is not due to the creditor, and this spouse is entitled to raise objections not only in his or her own right, but also objections that his or her spouse could not raise earlier. Therefore, if your spouse is in a legal dispute with the creditor and potentially enforcement proceedings may be initiated in a short time, use professional legal assistance at the earliest stage of the case to avoid the effects of inappropriate enforcement proceedings.