Marriage is a legal institution that is based not only on the emotional bonds between spouses but also on shared economic and property interests. To make this process easier, Polish law provides for the possibility of spouses having shared property. The regime in which spouses have shared property is the default situation in Poland, arising with the marriage unless the spouses decide otherwise. However, the regime of shared property ceases after the marriage is dissolved. But how should marital property be divided at that point?
Marital Property Regimes
Firstly, it’s important to clarify when marital shared property comes into existence. The existence of shared property depends on the marital property regime chosen by the spouses. As a result, shared property might not exist in every marriage.
Marital property regimes can be divided into statutory and contractual. Shared property between spouses will always exist under the statutory regime. The statutory regime can be altered by an agreement between the spouses, either before or during the marriage. The contractual regime can not only limit or eliminate shared property but also expand its scope.
The default marital property regime in marriages without a prenuptial agreement is the statutory regime, which includes shared property. The statutory regime also comes into effect when a prior agreement regarding property matters within the marriage is dissolved.
What constitutes shared property?
Shared property encompasses the assets owned by the spouses, over which they have equal and unrestricted rights due to the existence of a marital regime that includes shared property. Shared property covers all assets acquired by the spouses after the marriage, except for personal items like clothing or jewelry. This means that property acquired by one or both spouses during the marriage becomes the joint property of both.
What does not fall under marital property?
Assets acquired before the establishment of the shared property regime do not fall under marital shared property. This typically includes assets acquired before the marriage, as well as those acquired through inheritance, bequests, or gifts, unless the testator or donor specifies otherwise.
When is the division of marital property carried out?
The division of shared property can occur during the marriage or after divorce. Division during the marriage can only take place after an agreement is reached to change the marital property regime to one without shared property. After divorce, the shared property regime between the former spouses also dissolves. However, the physical division of their shared property is still necessary.
How is the division of property conducted?
Similar to many other institutions in civil law, the division of shared property can be achieved through mutual agreement between the spouses or through a court proceeding. In the former case, division can be carried out through an agreement made between the spouses. In the case of a court division, the division is determined by a court decision.
Contractual Division of Property
A contractual division of shared property can only take place when both spouses agree on the need for division and its specifics. This involves creating an agreement between the spouses to distribute the individual components of the property.
The agreement for property division, in principle, can be established in any form. However, even though the legislator allows for flexibility in this aspect, it’s advisable for such agreements to be in writing at a minimum. Nonetheless, this freedom of choosing the form of the agreement might not be possible in practice. For properties that include real estate or shares in companies, a notarial deed is required.
How does the court divide property?
Court-ordered division of shared property is possible whenever one of the former spouses demands it. This means that the court can carry out the division against the wishes of the other party or in cases where there is no agreement on the details of the division. Court-ordered division can also happen when there is an agreement between the spouses.
Proceedings related to the division of shared property are conducted in a non-litigious manner. This means that, in principle, disputes between participants are not anticipated. The court also takes it upon itself to examine the factual situation, and it might request additional documents if necessary.
In cases of division of shared property, the appropriate court is the District Court of the location of the property, that is, the court within whose jurisdiction the property is located, such as real estate owned by the spouses. If the marital property is geographically dispersed, the petitioner can choose the relevant court from among those within whose jurisdiction the components of the property lie.
What are the costs of a property division case after divorce?
The division of shared property incurs certain costs. The amount depends on several factors, including the method of property division, the value of the property, and the degree of agreement between the spouses.
For division carried out by a notary, the fee depends on the value of the property being divided. It ranges from 100 PLN for properties worth up to 3000 PLN to as much as 10,000 PLN for divisions involving estates worth several million PLN according to 2023 rates.
Court-ordered division of property, while often less expensive, can also be significantly lengthier. In cases of inheritance division, the court fee depends on the shape of the application. For a regular division of property following the end of the marital community, the court fee is 1000 PLN. When the application includes an agreed-upon division plan, the fee is 300 PLN. All amounts mentioned are based on 2023 rates.
The division of shared property can take place during the marriage or after divorce, leading to the dissolution of shared ownership between the spouses. Property division can frequently be a complex process, and in such circumstances, the assistance of a professional lawyer – either an attorney or legal advisor – can be invaluable.