After the judgement of divorce or separation has been announced, the property union in force is automatically terminated since the marriage. The consequences of this act require erstwhile spouses to take a decision on the division of the accumulated assets during the relationship. The distribution of assets is not limited to the separation of property held, specified as a house, a car or funds in a bank account. It besides includes contributions to sub-accounts operated by the Social Insurance Institution. Details of the distribution of funds in ZUS after the divorce are available later in the text.
Unless the spouses have decided otherwise before or during the course of the marriage, the matrimony union was governed by the general rule. This means that each of the spouses had his own individual property, which included property acquired before the wedding and inherited. However, the common assets, i.e. movable and immovable property acquired after marriage, besides included funds collected on the subaccounts of ZUS during the course of the marriage.
The duration of the matrimony partnership, unless the parties have decided otherwise, lasted from the date of the matrimony until the judgement of divorce was final. All the items acquired during that period became part of the property of the spouses.
Example 1.
Carolina and Matthew married on 1 September 2011. The divorce between spouses was ruled by a judgement of the territory Court on 10 October 2023. Karolina filed an appeal against the judgement of the territory Court. The appeal proceedings before the Court of Appeal ended on 1 November 2023. The property partnership lasted between the parties from 1 September 2011 to 1 November 2023 (i.e. until the judgement of divorce was final).
The termination of the property union results in the request to divide the property that was previously common to erstwhile spouses. This process may take place either by agreement between the parties or by the intervention of the court in the process of division of the common assets.
In accordance with the social safety law, in the case of:
- divorce,
- annulment of marriage,
- the death of 1 of the spouses,
- the amounts collected on the sub-account shall be broken down.
As part of the division of the assets of erstwhile spouses, the assets that were jointly owned by them, including contributions collected on the subaccounts of the Social safety Office, shall be taken into account.
The division process shall cover the amounts of contributions, interest on late payment and the extension charges which are eligible. According to the existing regulations, not all funds collected on the sub-account in the ZUS are allocated. This applies only to those measures which have been collected during the period of the property union.
Example 2.
In the above example, the matrimony union lasted between Carolina and Matthew from 1 September 2011 to 1 November 2023. Karolina began her professional occupation on 10 September 2008, and Matthew on 14 December 2007. The division of the property will only cover contributions earned by erstwhile spouses between 1 September 2011 and 1 November 2023, i.e. during the duration of the matrimony and the marital union.
The distribution of funds in the Social Insurance Institution (ZUS) after the divorce may take place without the request for the court to intervene if the erstwhile spouses decide to settle the substance amicably, preferring by drafting a settlement, preferably in the form of a notarial act. In the event that an agreement cannot be reached, it is essential to mention the case to a court which will be liable for the division of the common property.
The application for the division of assets submitted to the court should contain applicable information, specified as the date and place of the application, the indication of the court to which it is addressed, the applicant(s) afraid and the second of the erstwhile spouses, as well as a detailed description of what the applicant considers to be the common assets and the suggested method of division. The application must be signed in individual by the applicant and accompanied by copies of papers deemed essential for the consideration of the case, e.g. an extract from the registry of the common dwelling, confirmation of the bank account status, and a ZUS certificate concerning the position of the sub-account. The application for division of common assets belongs to a regional court in whose jurisdiction the property of the erstwhile spouses is located, most frequently a court in whose geographical area their home or dwelling is situated.
In the course of legal proceedings concerning the division of the common assets, the court is required to find for itself the composition and state of the common assets, even in the absence of an initiative by the parties. To this end, the court will conduct an evidence procedure in which it will request information from the Social Insurance Institution regarding the current position of the accounts held for both parties to the proceedings. The conclusion of the proceedings is simply a decision by a court which clearly determines what belonged to the common assets and how they were distributed.
The decision to allocate the funds collected on the subaccounts of erstwhile spouses in the Social Insurance Institution (ZUS) is taken by the court which applies the quota approach. This means that each of the erstwhile spouses is credited with a certain amount accumulated in the ZUS account as a consequence of the division.
The most common way to accomplish a division is to divide physically, usually in half for each spouse. However, in the event of peculiar circumstances, the court may besides choose to allocate another methods of allocating funds collected on a sub-account in the Social safety Office or even to quit their allocation. According to the case law of the courts, the distribution of these measures requires an individual approach, “with peculiar emphasis on the relation between married couples before divorce and the material situation of divorced spouses. In the event that 1 of the spouses had very low income and even deficiency of income (for example, due to home and children's care), the transfer of funds collected in OFE and on a sub-account in ZUS from a spouse with more wealth for the benefit of a spouse who, for nonsubjective reasons, would not have achieved a adequate pension in the future or would have obtained it at a very low level is justified" (cf. the order of the Bialystok territory Court of 15 July 2016, issued in Case II Ca 141/16).
For crucial reasons, the court may decide to allocate funds collected on a sub-account in the Social safety Office in a way another than equally for each spouse. Exceptionally, the court may besides waive the allocation of funds collected on a sub-account if the principles of social coexistence so warrant.
Example 3.
Leszek and Catherine's matrimony was completed by divorce. During his matrimony Leszek worked as a police officer and his retirement funds were collected in another system. Before his divorce, Leszek retired. Katarzyna worked on the basis of an employment contract as an accountant and the funds from her wage were transferred to the subaccount in ZUS on an ongoing basis. In the course of the joint division case, only the funds collected on the sub-account of Catherine in ZUS could be covered. In specified a case, the court should decide that there should be no division of funds collected on the sub-account of Catherine in ZUS. The distribution of these funds in the absence of a distribution of funds by Leszek would be contrary to the principles of social coexistence.
After receiving a copy of the order, the Social Insurance Institution (ZUS) implements the actual allocation of funds on subaccounts. This means that part of the contributions registered on the sub-account, assigned to a circumstantial spouse as a consequence of the division, are credited on its sub-account. If the erstwhile spouse has not previously had a sub-account in ZUS, the institution will automatically establish specified an account for him.
The property distribution process includes not only funds collected on the sub-account operated by ZUS, but besides funds raised in an open pension fund (OFE). In the case of funds collected in OFE, the division shall be effected by dividing the settlement units assigned to each of the erstwhile spouses.
Dear reader, we remind you that all legal matters in this substance we compose about can be complicated and frequently require the aid of a lawyer. It's worth discussing it with a lawyer before taking legal action.
Contact us now. We'll review your case and see precisely what we can do about you. Our experts have already helped a number of clients who thought they were already in an impossible situation.
Write us or call us now.
579-636-527
[email protected]
This is from
Distribution of funds in ZUS after divorce – key information:
