The joint property of the spouses may be at risk
In practice, situations are often encountered when one of the spouses connected by a property community runs a business or professional activity, while the other is employed or simply does not work. In connection with the above, there is a risk that the loss of financial liquidity in the conducted business activity may adversely affect the common property. How can you protect yourself against it? The answer to this question later in the article.
Fears of losing common property usually concern residential property. In such a case, is the house or flat safe against possible enforcement against the indebted entrepreneur? The legislator took care of the interests of the spouse who did not consent to the conclusion of the contract or who had no knowledge of it.
If there is no evidence that the debtor's spouse has guaranteed or acceded to the debts, he should not be sued in an action for payment initiated by the creditor. In a situation where, despite everything, the creditor sues the entrepreneur's spouse, the lack of passive ID may serve as a defense.
In a situation where an enforcement order is issued against one of the spouses (e.g. when the court issues an order with an enforcement clause), this is not sufficient to initiate further enforcement actions (e.g. description and evaluation of the property, as well as selling it by auction) ). For further enforcement to be possible, an enforceable title must be issued against both spouses. Only then is it possible to make a warning entry about the initiated enforcement against a given real estate in section III of the land and mortgage register.
Pursuant to Art. 9231 par. 2 of the Code of Civil Procedure, the debtor's spouse has the right to oppose the seizure of the common property. Then it is the bailiff's duty to inform the creditor about this fact. The latter, in turn, has 7 days to apply for an enforcement clause against the debtor's spouse. If he does not do so or if his application is legally rejected, the execution of the seized property will be discontinued. As a result, when the bailiff's decision to discontinue the enforcement becomes final, this authority should also apply for the removal of the warning from section III of the land and mortgage register of a given real estate.
In order to initiate enforcement against joint property, an enforcement clause also issued against the debtor's spouse is necessary. It is practically impossible to obtain it if the spouse did not give his written consent to the contract. Then the creditor may, pursuant to Art. 7871 of the Code of Civil Procedureapply for an enforcement clause against the debtor's spouse limiting his liability to the enterprise which is part of the spouses' joint property. This situation requires the presentation of a document confirming that the debt arose in connection with the running of the business. Such a limited enforcement clause is not, however, sufficient for the enforcement of a house or apartment, if they are not in the debtor's fixed assets.
If it is found that the spouse does not agree to the commitment, the creditor will be able to demand satisfaction only from the debtor's personal property, his remuneration for work or from income obtained from other gainful activity. The situation is different when the debt arises in connection with running a business. Then, enforcement may be directed to items that are part of the enterprise, even if they constitute joint property.