Compulsory property regime - when does it occur?

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According to the statutory property regime, a joint property arises at the time of marriage, which is characterized by the fact that the attributes acquired by both spouses during the marriage or by one of them constitute joint property. Nevertheless, the provisions of the Family and Guardianship Code entitle us to draw up a contractual property regime. This is called marriage contract, commonly known as intercourse, in the case of people who want to enter into marriage or between spouses. What if the spouses' property is threatened by one of the spouses? It is possible for the court to establish a compulsory property regime. Information on what the compulsory property regime is and in what situations it can be applied can be found in the text below.

Compulsory property regime and the establishment of property separation

Establishing property separation is made by the court by issuing a judgment at the request of one of the spouses. However, separation will not be established in every situation, as only good reasons are a prerequisite for its establishment. Important reasons include separation that prevents the spouses from cooperating in the management of the joint property (Supreme Court judgment of June 4, 2004, III CK 126/03). Also, the spouse's fault is not without significance, because in the event of a request to the court for separation of property by the guilty spouse, the court will take this issue into account when assessing the request to abolish joint ownership from the point of view of the principles of social coexistence (judgment of the Supreme Court of 27 January 2000, III CKN 426/98).

Apart from the spouses themselves, the person entitled to demand the abolition of co-ownership is the creditor of one of them, who must prove that the satisfaction of the claim requires the division of the joint property of the spouses (Art. 52 § 1a of the Code of Criminal Procedure).

Example 1.

Mr. Andrzej took a debt to his friend. He pledged to pay back within a year, but three years have passed and the debt has still not been settled. In this case, the creditor decided to recover his money and asked the court to divide the joint property of Mr. Andrzej and his wife and recover the amount of debt from the property due to Mr. Andrzej, because his wife is a very good woman and does not want to expose her to the loss of her property.

The property separation of the spouses arises on the date specified in the court's judgment, however, in exceptional circumstances, the court may establish the separation on a day earlier than the day on which the court is brought. The reason for such a decision will be, in particular, the fact that each spouse lived separately before bringing an action (Art. 52 § 2 of the Code of Criminal Procedure). Establishing separation of property at the request of one of the spouses or at the request of the creditor does not prohibit the spouses from concluding a marriage contract (Article 52 § 3 of the Code of Criminal Procedure).

Incapacitation and bankruptcy

Various life situations can complicate the family life of the spouses, in particular due to mental and other mental illnesses or addictions. In such a situation, the other spouse must take measures to prevent deterioration of the family situation, and above all, financial situation.

When there is a situation where one of the spouses becomes incapacitated due to an illness, separation of property arises by operation of law, i.e. without the need for court intervention, the spouses' property regime is automatically divided. Such a situation will also take place in the event of bankruptcy of one of the spouses (Article 53 of the Civil Code). In the case of the declaration of bankruptcy of a company run by one of them, their joint property does not become his property, and the creditor may be satisfied only from his property (judgment of the Supreme Court of 30 October 2008, II CSK 242/08).

However, in the event of the revocation of incapacitation or redemption, completion or revocation of bankruptcy proceedings, the property regime between the spouses returns to the statutory property regime.

Example 2.

Mr. Marek had serious problems with alcohol and gambling and often spent his entire salary on alcohol and playing roulette. His wife finally decided to incapacitate her husband, as they were squandering their joint property. In such a situation, by operation of law, along with incapacitation, the joint property of the spouses is divided.

Separation

The lack of understanding and the difference of characters often lead to the decision of the spouses to separate. In such a situation, the division of family life into two parts will also apply to the property regime. However, as pointed out by the Supreme Court, the mere fact of the separation may prove insufficient to establish the property separation of the spouses, as it must fall within the definition of "important reasons" (Supreme Court judgment of January 7, 2000, II CKN 358/99). Nevertheless, in recent years, the Supreme Court has more gently pointed out and at the same time clarified the position regarding separation as a premise for deciding on separation of property.

In its judgment, the Supreme Court indicated that: "A long-term de facto separation may justify the establishment of property separation by a court, if this state of affairs prevents cooperation in the management of joint property, entails a violation or a serious threat to the property interests of one of the spouses, or results in the permanent severance of all property rights. property relations and the inability to make joint economic decisions "(judgment of the Supreme Court of November 24, 2017, I CSK 118/17).

If the separation is abolished, the spouses' statutory property regime is created, however, upon their joint application, the court will rule on maintaining the separation of property between the spouses (Art. 54 of the Code of Criminal Procedure).

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Example 3.

The spouses had previously separated informally and decided to live separately. This state lasted about a year and finally one of them decided to separate by the court, which in this matter decided to divide the joint property, because for a long time each of them had been in isolation and created their property separately.

Legal basis

Supreme Court judgment of 4 June 2004, III CK 126/03

The judgment of the Supreme Court of 27 January 2000, III CKN 426/98

Supreme Court judgment of 30 October 2008, case no. II CSK 242/08

Supreme Court judgment of 7 January 2000, II CKN 358/99

Supreme Court judgment of 24 November 2017, I CSK 118/17

The Act of February 25, 1964 - Family and Guardianship Code