The rules of making settlements by spouses in respect of expenses and expenditure made from joint property to personal property of each of them and made from personal property to joint property are governed by Art. 45 k.r.o. As provided by the law, each spouse should reimburse the expenses and outlays made from the joint property on his personal property, with the exception of expenses and expenses necessary for income-generating property. The spouse may request reimbursement of expenses and expenses that he made from his personal property to the joint property. However, you can not claim the reimbursement of expenses and expenditures used to meet the needs of the family, unless they increased the value of the property at the time of cessation of commonality.
Pursuant to Art. 45 § 2 of the Family and Guardianship Code, the return is made when the joint property is divided. The court may, however, order an earlier return if it is in the welfare of the family. According to the ruling of the Court of Appeal in Szczecin of 5 December 2012 (file reference number I ACa 589/12), “The welfare of the family referred to in Art. 45 § 2 k.r.o. should be understood broadly and interpreted in accordance with the purpose of the provision. This aim is to lead to a comprehensive settlement of property issues between former spouses in one proceeding. ”. B. Kubica also points out that „The literature correctly emphasizes that when assessing the condition of the good of the family, the court should examine the situation of a specific family, and therefore it is not possible to define general criteria that allow for earlier settlements. In practice, an example of the possibility of applying Art. 45 § 2 k.r.o. there is a situation in which, after making the appropriate expenses or expenditures, the marital life has broken down „(B. Kubica [in:] Family and Guardianship Code. Commentary, ed. M. Fras, M. Habdas, Warsaw 2021, art. 45.). It is also worth emphasizing that it is not allowed to make earlier settlements by means of an appropriate agreement between the spouses, which results from the special nature of this provision and the exclusive right of the court to assess the condition of „good of the family”.
As S. Madaj writes (Madaj, Proceedings nieprocesowe …, p. 128), taking into account the above, we can conclude, a contrario, that there is no possibility of a later return, that is, one that would take place after the division of the joint property. This position is shared by the jurisprudence – in its decision of February 2, 2005, IV CK 454/04, the Supreme Court stated that „after a legally valid decision on the division of joint property has been passed, it is no longer possible to pursue claims for the return of expenditure from separate property to joint property and joint property into separate property „.
The issue of early return remains the subject of a dispute in the doctrine. According to the view of A. Szpunar, „this return is possible only during the time from the termination of the joint property until the joint property is divided” (A. Szpunar, On the damage caused by one of the spouses in the joint property, Law Asekuracyjne 1998, No. 2, pp. 17 ff.). The second position points out that „in Art. 45 § 2 k.r.o. a general clause for the good of the family was placed, and therefore the way to an even earlier return order should not be definitively closed, and in special cases, it is necessary to opt for the possibility of a court ordering the return also during the joint life „(see T. Sokołowski, Damage caused by the spouse in the joint property, The Asekuracyjne Law 1998, No. 3, pp. 45 et seq.). The correctness of this interpretation is indicated by the fact that the abolition of community may be contrary to the good of the family, if only one of the spouses works professionally and the other is involved in raising children and running the house. In such a case, the return to the joint property may have a positive impact on the situation of the family, at the same time it does not exclude the benefits of the community of property regime. It is important that the order for reimbursement of outlays or expenses from personal property takes place without undue delay, as it may happen that the property is subject to an unforeseeable reduction.
The demand for an earlier reimbursement of expenditure and expenses is recognized only in the procedural mode. This is due to the fact that there is no provision in the Code of Civil Procedure that would indicate the possibility of considering this type of cases in a non-litigious procedure. Pursuant to the decision of the Supreme Court of April 12, 2000 (IV CKN 27/2000), the procedural procedure also applies when, after the termination of joint ownership, there is no joint property as the object of division.