ATTENTION ! automatic translation from Polish
In case file reference I ACa 357/13, the Court of Appeal in Wrocław considered a case in which, by an agreement of 24 September 1996, in accordance with the then wording of Article 51 of the Family and Guardianship Code, the parties excluded the community of marital property. Therefore, the spouses expressed their unanimous will to establish a system of separation of property between them.
Upon its establishment, each spouse retains both the property acquired before the marriage and the property acquired later. Each spouse manages their property independently (currently, since 20 January 2005, Article 511 of the Family and Guardianship Code, previously Article 51 of the Family and Guardianship Code). In the system of separation of property, there is the personal property of the wife and the personal property of the husband. This system, by definition, excludes the community of property between spouses.
At the same time, the fact that spouses remain in the separation of property system does not deprive them of the possibility of jointly acquiring property rights, and then the provisions on joint ownership in the fractional part will apply (Article 195 and the following Civil Code regulations). The separation of property system gives both spouses the possibility of independently and freely increasing and managing their property, but in practice this depends on the actual ability of the spouses to increase their property and the adopted division of roles in the family.
Therefore, the legislator, by the amendment of 17 June 2004, which came into force on 20 January 2005, introduced a new property system – separation of property with equalisation of acquired goods, which, by definition, protects the interests of the economically weaker spouse. In this system, there is separation of property and community of acquired assets, understood as an increase in the value of property after the conclusion of a marital property contract (Article 513 § 1 of the Family and Guardianship Code). After the separation of property (dissolution of marriage), the spouse whose property is smaller may request equalization of the property by payment or transfer of the right (Article 514 § 1 of the Family and Guardianship Code). In this way, the economically weaker spouse may request division of the increase in the value of the spouse’s personal property, i.e. what he or she has earned during the marriage. He or she is entitled to a claim for payment or transfer of the right. Article 513 of the Family and Guardianship Code contains instructions on how to calculate the property.
In the case in question, the Court of First Instance, through the settlements it made, in fact attempted to equalize the property of the parties, adopting the provisions on unjust enrichment as a basis. The Court of Appeal did not agree with this construction. The fact that the defendant accumulated greater personal property does not mean that he or she was enriched at the expense of the plaintiff, and moreover, that it happened without a legal basis. This is an agreement of 24 September 1996, which is expression of the will of the parties, caused each spouse to accumulate their own assets. It should be noted that art. 47 § 2 of the Family and Guardianship Code, in force since 20.01.2005, states directly that „the marital property contract may be amended or terminated. In the event of its termination during the marriage, a statutory community of marital property is established between the spouses, unless the parties have decided otherwise”. The ban on changing the content of the marriage contract did not exist before the amendment to the Family and Guardianship Code. The spouses could therefore amend the agreement on the separation of property of 24.09.1996, including after 20.01.2005 concluding an agreement on the separation of property with the equalization of acquired assets. Both were aware that, contrary to their fears, the business activity that the defendant had started in 1997 had developed successfully, generating profits and allowing the purchase of movable and real estate. The plaintiff agreed to the existing system separation of property and never questioned the concluded agreement.
In the same opinion of the Court of Appeal, the District Court violated the provision of Article 233 of the Code of Civil Procedure by assuming that the marital property agreement concluded between the parties is irrelevant to the property relations existing between the parties, because it is excluded that the plaintiff, by agreeing to the establishment of the separation of property and registering the business solely in her husband’s name, waived future profits from the conducted business activity, and moreover contributed 1/2 to the creation of the defendant’s property.
The Court of Appeal indicated that since the plaintiff claimed that the defendant had unjustly enriched himself at her expense, she should have demonstrated that there had been an increase in the defendant’s personal property, at the expense of the plaintiff’s personal property, with the existing causal relationship between enrichment and impoverishment and in the absence of a legal basis for such a transfer. The burden of proof here rested on the plaintiff, who should have proved that the defendant had enriched himself, e.g. acquired property items, while they should have been included in the personal property plaintiffs.
As a result, in its judgment of 8 May 2013, the Court of Appeal dismissed the action.