Division of joint property is possible after the termination of joint property regime, regardless the cause for termination. As to every rule there are exceptions to the power for demanding the division of joint property (more about that HERE).
The easiest and fastest way to divide assets collected by spouses is a contractual division of joint property. The law does not regulate how and in what form such agreement should be concluded, and therefore in this respect parties’ autonomy applies. Note, however, that there are general provisions, which, if mandatory, must be used (by way of example, you can specify the form of a notarial deed reserved for real estate). The contract may not violate the principles of social coexistence, because an agreement contrary to these principles will be null and void. You should also note that the provisions on defects in consent will also apply to such agreement, and that are: condition disabling conscious or free decision and expression of the will, the apparent error, deceit or threat. The evasion from legal consequences of consent which was made under threat or error, occurs by submitting a written statement. Any nullity can also be found in an action based on article 189 of the Civil Code, and this pled can be also made by participants in judicial proceedings for the division of joint property. In case of lack of validity of this complaint, if the division concerned the whole property, the court should dismiss the request. However, if the allegation proves to be wholly or partly upheld the court’s findings it should establish the division of the joint property in respective scope.
The contractual division of joint property should also include provisions subjectively and objectively important (ie. essentialia negotii) for this type of contract, and therefore:
- A method of division,
- a statement on the transfer of shares,
- the provisions on payments or subsidies and the payment date.
As a rule, it is recommended that the agreement covers all property of spouses, however, the parties may make only a partial division.
Also, be noted that if you make the contractual division of joint property it must be accompanied by consistent will of the parties, not only on the possibility but also on the method of division. There are no unanimity on this issue means that the division of property can be made only through the court, in non-litigious proceedings.