Establishing the separation of property during marriage is a process in which spouses decide to separate their property so that each of them manages and is responsible for their own property. In the Polish legal system, this process can be carried out in two main ways:
Marital property agreement (prenuptial agreement)
Spouses may enter into a marital property agreement (commonly called a prenuptial agreement), which changes the marital property regime from the statutory community of property to the separation of property. This agreement can be concluded both before and during the marriage. Such an agreement must be drawn up in the form of a notarial deed. From the moment the agreement is concluded, each spouse has separate property and manages it independently. The income that each of them receives after the agreement becomes their exclusive property. It is necessary to divide the property previously covered by the community. It is possible to acquire things on the basis of joint ownership in fractional parts. It is worth noting that the establishment of property separation applies only to the property sphere and does not refer to the mutual rights and obligations of the spouses.
Property separation established by the court
If the spouses cannot reach an agreement on the establishment of property separation or if the situation requires it (e.g. when one of the spouses acts to the detriment of the joint property), an application can be filed with the court to establish property separation. The court considers the case and decides on the establishment of property separation. The court may set the date of separation at an earlier date if there are important reasons for this (in the case of an agreement drawn up before a notary, this is not possible). After the establishment of property separation by the court, each spouse has separate property, and their joint property is divided.
When is it worth considering property separation?
Property separation can be beneficial in situations where one of the spouses runs a business and there is a risk of debts. Spouses may also have different approaches to financial management. There is a risk of divorce and the financial complications associated with it. In both cases, establishing the separation of property requires thought and often legal advice to fully understand the consequences of this step.