Because of the breadth of subject matter, which concerns the division of joint property of spouses, this article will launch a series of articles on this difficult in practice matter. In today’s article will be presented general information about the marital joint property will be presented.
Firstly, it should be noted that in relations between spouses we can distinguish matrimonial regimes based on law or on an agreement. Statutory property regime arises by operation of law upon conclusion of marriage, and the latter one upon its establishing by an agreement. Matrimonial property agreement can lead to extension, limitation or exclusion of matrimonial joint property regime with or without compensation for gained possessions.
In principle at the time of the marriage, there arises between the spouses the joint property regime (statutory property regime), in the absence of different agreement between spouses. The exception is the situation when, despite the different agreement, one of the spouses is incapacitated or had been declared bankrupt, because in this condition the separation of marital property is compulsory. Joint property covers property acquired by both spouses or by either of the while the marriage lasts.
Marital joint property is indivisible. That means, that each spouse is entitled to each and every item covered by the joint property. During the lasting of joint property regime none of the spouses may demand the division of joint property. It is also not possible to dispose or to oblige oneself to dispose the share in the whole property or in individual object, that in the event of termination the joint property regime, will be assigned to one of the spouses. Supreme Court in its judgment of 18 January 2012 (II CSK 139/11) stated that “conclusion of the agreement, while the joint property regime lasts, on the division of joint property is invalid”. As a rule, however it is acceptable to make transfer of property between personal properties of the spouses of the joint assets, if it does not lead to the total liquidation of assets covered by joint property (Resolution of the Supreme Court of May 25, 1971. III CZP 29/71).
Joint property regime may be terminated by various events, which include:
- the death of one spouse or the simultaneous death of both spouses,
- validation of the decision on declaration of death,
- validation of the divorce decree,
- validation of a judgment of annulment of marriage,
- conclusion of property agreement,
- establishment by the court of separation of property,
- validation of the decision of incapacitation of one of the spouses,
- declaring bankruptcy of one of the spouses;
- validation of the judgment of separation.
Termination of joint property regime causes that the property of the spouses passes under the regime of co-ownership, fractional and from now on, each spouse may demand that the property was divided. Power to demand the division may be derogated by an agreement for a period not exceeding five years, the last year before the reserved date the extension for a further 5 years is acceptable. Power to Require the division of joint property does not expire.
Upon the time the decision on the repeal of incapacitation or remission, completion or annulment of the decision on the insolvency proceedings are final and binding between the spouses arises statutory system of community of property, regardless of which system existed prior to the judgment of incapacitation or bankruptcy. But it is not compulsory regime and spouses can change it.
Z chwilą prawomocnego uchylenia ubezwłasnowolnienia a także z chwilą prawomocnego umorzenia, ukończenia lub uchylenia postępowania upadłościowego powstaje między małżonkami ustrój ustawowe wspólności majątkowej bez względu na to jaki ustrój istniał przed orzeczeniem ubezwłasnowolnienia lub ogłoszenia upadłości. Nie jest to jednak ustrój przymusowy i małżonkowie mogą go zmienić.