Distribution of property after divorce

The concept of common property of spouses

In accordance with Article 31 of the Code of household and Care, at the time of the marriage, the property partnership between spouses, by virtue of the law, covering their achievements (statutory commonality). The work of the spouses is property acquired during the course of the statutory association by both spouses or by 1 of them (Article 32(1) of the Statute). In particular, they constitute the income of spouses collected for the work and income of any another gainful activity of any spouse and the income from the common assets as well as from the individual assets of each spouse (Article 32(2)).

Legal partnership ceases erstwhile the judgement disbanding matrimony is finalized Divorce (Rule 56 cro). From the cessation of the marital legal partnership to the division of that property, respectively, the provisions on joint ownership in the fractions (Article 195 et seq.) shall apply. Each spouse shall be entitled to the components of his or her separate assets and to a share of his or her common assets. In accordance with Article 43(1), both spouses have equal shares in the common property.

The establishment of a statutory association constitutes a time limit beyond which the acquisition of a property excludes it from being covered by a statutory association (yes: judgement of the ultimate Court of 5 October 2016, act III CSK 382/15).

Ingredients of the Court’s decision on the division of the common assets

The decision of the court on the division of the common assets may contain decisions concerning:

• require the establishment of unequal shares in the common assets after the cessation of the common interest (Article 43, Article 567(1) kpc);
• reimbursement of expenditure and expenditure on individual property and vice versa (Article 45, Article 567(1) kpc);
• claims for the holding of individual items, for the benefit received and for another revenues, of debts paid (Article 686 of Article 567 §3 kpc);
• dispute over the property's affiliation to the common assets (Article 685 in Article 567(3) kpc);
• a dispute over the existence of the power to request the division of the common assets (Article 685 in Article 567(3) kpc);
• the plea of invalidity of the matrimony property contract (the ultimate Court resolution of 7 July 1971, act III CZP 35/7111)

(yes: Jerzy Słyk in: Separation of the assets of the spouses after the marital union strategy ceased).

Reimbursement of expenditure and expenditure on common property on the individual property of the spouse and on individual property on the common assets of the spouses

Each of the spouses should reimburse the expenditure and expenditure made from the common assets on his individual property, but for expenditure and expenditure essential for income-generating assets. Each of the spouses may request reimbursement of expenses and expenses which he has made from his individual property to the common property.

However, it is not possible to require reimbursement of expenses and expenses utilized to meet the needs of the family, unless they have increased the value of the property at the time of the cessation of the common interest (Article 45(1)). The refund shall be made on the division of the common assets (§ 2).

This rule shall apply mutatis mutandis where the debt of 1 of the spouses has been satisfied with the common assets.

The procedural dimension of the rule in question includes Article 567(1) kpc, which states that, in proceedings for the division of common assets after the cessation of the property relation between spouses, the court shall besides decide on which expenses, contributions and another benefits of the common assets for individual property or vice versa are recoverable.

The ultimate Court, in its order of 5 October 2018, No. III CSK 189/18, indicated that, erstwhile demanding the settlement of expenditures (Article 45(2) of Article 567(1) and Article 618(1) kpc), the rule is to settle, by division of the common assets only of the expenditures made between the common and individual assets. For example, an account of the expenses made of the spouse's individual assets on the individual property of the another is only allowed in specified a peculiar situation, erstwhile a building was built on the property constituting the individual property of 1 of the spouses at the expense of all the assets at the disposal of both spouses. In this case, the contributions made to it require a comprehensive settlement (yes: ultimate Court order of 5 October 2018, No. III CSK 189/18).

In view of the content of Articles 45(1) and 567(1) and 5(3) of the Code, in conjunction with Articles 618 of the Code and 688 of the Code, the view is established in judicature and in writing that the reimbursement of expenses and expenses from individual property to the common court shall be made only on application and not ex officio. The applicant for reimbursement of expenses and expenses from individual assets to the common assets must specify these requests in accordance with Article 187(1)(1) in conjunction with Article 13(2)(c) (yes: order of the ultimate Court of 4 April 2012, act mention I CSK 323/11, and order of the ultimate Court of 1 December 2011, act mention I CSK 78/11).

Settlement of claims reimbursement of expenses from individual assets to common assets does not belong to the substance of the procedure for the division of the common assets, but takes place during that procedure. The fact that specified claims may arise in non-trial proceedings does not justify the application of rules different from those governing the settlement of claims in the process. The Court of Justice of the European Union, acting on behalf of the Court of Justice of the European Union, has decided on a proposal from the Court of Justice of the European Union for a period of 3 years from the date of the entry into force of this Decision. Ref. Act III Ca 698/14).

As regards the request of the parties to the settlement of expenditure, it is the work of the court to conduct proceedings ex officio only to establish the existence and amount of the common assets for the individual property of the parties. The contributions from the property of the parties to the common assets must, in principle, be demonstrated by the parties making specified a request. It is the parties legally liable to bear the burden of proof of the existence and amount of specified expenditure (yes: the order of the Wąbrzeź territory Court of 19 June 2018, Ref. I Ns 73/15).

Amount of repayment of the spouse's individual assets to the common assets

Where the spouse has made an effort on the common assets and the asset of the value thus increased has not been granted, he should be reimbursed for all of the expenditure (in accordance with the rule that the spouse who is obliged to reimburse the assets of the separate second spouse for the common assets should reimburse all of these expenses).
In turn, erstwhile a spouse performs expenditure from individual assets on common assets, he should be reimbursed half of that effort as he increased his spouse's assets by that amount
(similarly: ultimate Court order of 28 June 2017, Ref. Act IV CNP 62/16).

Debt related to the common assets, repaid from the own resources of 1 of the spouses after the cessation of the statutory partnership

The provision of Article 45 kro only applies to cases where debts have yet to be met during marriage. On the another hand, debts relating to the common assets and chargeable to both spouses, which have been repaid from the own resources of 1 of the spouses after the cessation of the legal community of Article 45 kro, shall not apply. Their accounts shall be based on the duly applied Article 207 kc.

In accordance with Article 207 kc, the benefits and another gross from the commons shall be borne by the joint owners in relation to the size of the shares; in the same relationship, the joint owners shall bear the expenses and burdens of the commons.

The basis for the settlement of debts paid by 1 spouse after the cessation of the common interest and before the division of the common assets is Article 207 kc in conjunction with Article 618(3) kpc in conjunction with Articles 688 and 567(3) kpc. It is so de facto a separate dispute which only under Article 618(3) kpc settles on the division of the common assets. In this respect, the Court of First Instance is bound by a request made and may, in that regard, regulation only if specified a request is made (it cannot do so of its own motion).

Pursuant to Article 193 §2 kpc in conjunction with Article 391 §1 kpc and Article 383 kpc in conjunction with Article 13(2) §2 kpc, if a associate wished to extend a request for settlement of a debt, this should only be done in a procedural letter alternatively than orally at a hearing. Since he did not do so (especially erstwhile represented by a professional representative), it is not possible to accept that the request in this respect is decently made (yes: the order of the Wąbrzeź territory Court of 19 June 2018, Ref. Act I Ns 73/15).

Recognition in the process of a claim for settlement of expenses between spouses after divorce

The contributions made from the common property to a separate property of 1 of the spouses are not a component of that property, but an external component in relation to that property, and are reimbursed erstwhile the property is divided alternatively than within it. The settlement of specified claims is not a substance of division, but takes place at the occasion of this procedure, with a view to finalising all the issues relating to the division of common assets among erstwhile spouses.

However, when no more common assets exist, as an object of division, the message of expenditure referred to in Article 45 kro shall be recognised in the process. The settlement for this intent in the procedure for the division of common assets is not admissible (yes: order of the ultimate Court of 25 January 2000, act mention I CKN 376/98; judgement of the Court of Appeal of Białystok of 31 January 2013, act mention I ACa 731/12; judgement of the Court of Appeal of Warsaw of 13 September 2017, act mention I ACa 893/16).

Determination of the unequal shares of spouses in common assets

In proceedings for the division of the common assets after the cessation of the common property between the spouses, the court shall besides decide on the request to establish unequal shares of the spouses in the common assets (Article 567(1) kpc).

In the light of Article 43, both spouses shall have equal shares in the common assets. However, for crucial reasons, each spouse may require that the determination of shares in the common assets be made taking into account the degree to which each of them contributed to the formation of that property.

As is accepted in the case-law, it is essential to establish the unequal shares of spouses in the common assets to meet together the 2 conditions laid down in that provision, namely, the existence of crucial reasons and the contribution of spouses to the creation of common assets to varying degrees (Yes: orders from the ultimate Court of 24 April 2013, No. IV CSK 553/12 and No. 21 November 2002, No. III CKN 1018/00, LEX No. 77054).

Contribution to the formation of common assets

By contributing to the creation of the common assets, the full effort of each spouse to establish a household and to meet its needs is understood, not only the amount of earnings or another incomes achieved by each of them, but besides the usage they make of these incomes, whether they manage them decently and do not squander them recklessly. In addition, not only economical achievements but besides individual work in kid rearing and in a common household are evidence of the contribution of each spouse.

Thus, in a situation frequently found in a well-functioning family, erstwhile 1 of the spouses committed himself to gaining employment and seeking to rise or increase common property, the another devoted his time to raising children and moving a common household, thus relieving the burden on the spouse and facilitating his income, it is reasonable to believe that the spouses have equally contributed to the creation of the common property and so it is not possible to establish unequal shares in the common property.

It is essential to show that specified a decision is based on valid reasons, assessed from the point of view of the principles of social coexistence, i.e. that 1 of the spouses would have received the benefit of a part of the common property to which it did not contribute, and would be contrary to those principles (yes: the order of the territory Court of Wąbrzeźno of 19 June 2018, Ref. Act I Ns 73/15).

Meaning of crucial reasons for determiningunequal shares of spouses in common assets

The ‘important reasons’ referred to in Article 43(2) above concern the assessment of the behaviour of the spouse and the conditions of things caused by him which are the origin of the lower value of the common property than that which would have occurred if he had acted properly. This behaviour must be reduced to an incorrect, gross or persistent failure to contribute to the increase of common assets, despite the wellness and earnings opportunities available. (Yes: order of the ultimate Court of 30 November 1972, ref. Act III CRN 235/72).

The assessment of this conduct should take into account the full conduct of the spouse in the exercise of his or her household responsibilities during his or her business relationship. For crucial reasons, specified circumstances as assessed from the point of view of the principles of social coexistence are understood to argue the granting of benefits to 1 of the spouses from that part of the common property which the spouse did not contribute to (yes: order of the ultimate Court of 19 December 2012, act II CSK 259/12 and 28 April 1972, act III CRN 626/71).

Contributing to the formation of common assets

With respect to the grounds for the contribution of spouses to the creation of the common assets, it should be pointed out that they constitute not only their actions leading straight to the expansion of the substance of the property, but besides form their full efforts to establish and meet the needs of the family. The degree of this contribution shall not be determined solely by the amount of earnings or another income earned by spouses utilized to meet household needs.

In order to specify it, it matters whether the spouses manage their resources rationally or recklessly they do not squander them (yes: J. Pitowski, Shares of the spouses... p. 291. K. Piasecki (ed.), household and Care Code. Commentary, issue V, LexisNexis 2011). In another words, The disproportion of the degree of contribution to the formation of the common assets may take the form of a twofold form: or the absence by 1 of the spouses of appropriate efforts to multiply the common assets, or of proceedings resulting in the squandering thereof..

In view of the presumption that there are equal shares in the common assets (Article 43(1) of the Code), in accordance with the general rule of burden of proof (Article 6 of the Code), the conditions referred to above must prove that the spouse who requested the establishment of unequal shares in the common assets (yes: order of the Szczecin territory Court of 5 December 2017), Ref. Act II Ca 719/17).

Application to the division of the assets of the joint spouses of the law on the commonality of the property and the division of inheritance

The division of the property of the joint spouses shall be governed by Articles 42 to 46 k.r.o. and by Article 46 k.r.o. respectively by the provisions on the division of inheritance, i.e. Articles 1035 to 1046 k.c. and Articles 1070 and 1079 k.c., which shall mention (Articles 1035 and 1070 k.c.) to matters not governed by the provisions on co-ownership in fractions, i.e. Articles 210 to 221 k.c.

In accordance with Article 567(3) of the Code, the composition and value of the common assets to be broken down shall be determined by the court.

Pursuant to Article 46 kr, from the date of the cessation of the legal partnership to the property covered by it and to the division of that property, the provisions on the commonality of the property and the division of the inheritance shall apply mutatis mutandis.

As indicated by the Słupsk territory Court in its judgement of 28 August 2015. Ref. Act IV Ca 15/15, to proceedings for the division of the common assets after the cessation of the common property between spouses, and in peculiar to separate proceedings in cases concerning the application for the establishment of unequal shares of spouses in the common assets and on which expenditures, contributions and another benefits from the common assets for individual property or vice versa are recoverable, the provisions on the division of inheritance (Article 567 §3 kpc) shall apply mutatis mutandis and on the basis of Article 688 kpc, on the basis of another reference, the provisions on the abolition of joint ownership shall apply mutatis mutandis.

The ultimate Court, in its message of reasons for the resolution of 19 May 1989, No. III CZP 52/89, OSNC 1990/4-5/60, ruled that Article 567 kpc was the regulation governing the establishment of the common assets. In its § 3 the legislator orders the application of the provisions of the inheritance department procedure, which in turn mention to the appropriate application of the rules on the abolition of joint ownership (Article 688 kpc). Having respect to this double mention in the proceedings for the division of the assets of the spouses the court decides on the belonging of the individual items to the acquis, to the separate assets, on what expenditure and expenditure on the property common to the individual property – and vice versa – are recoverable, on claims for possession of the property, for profit, debt and debt claims.

Jurisdiction in case of division of assets after the cessation of the property relation between spouses

In the case of the division of common assets after the cessation of the property union between spouses, the court of the place of the property shall have jurisdiction and, if the commonality has ceased by the death of 1 of the spouses, the court of succession (Article 566 kpc).

Distribution of common assets in a divorce or separation case

Pursuant to Article 58(3) k.r.o. in a case for divorce or a case for separation in a case referred to in Article 61(1) k.r.o., pursuant to which the provisions of Article 58 k.r.o. shall apply in the case of a marriage, at the request of 1 of the spouses, the court may, in a judgment, divide the common assets if specified division does not consequence in excessive hold in the proceedings. Thus, the question of including this application remains in the discretion of the court in the case of divorce or separation, and the decision to leave this application without examination is not admissible, and the appeal brought against specified a decision is rejected under Article 370 of the Code of Appeal (yes: the decision of the Court of Appeal of Krakow of 9 February 2018. Ref. Act I ACa 1043/17).

Recognition of divisions in non-trial proceedings

Divisional cases are recognised in non-trial proceedings. A characteristic feature of non-trial proceedings, distinguishing them from procedural proceedings, is the action of the General Court of its own motion

Determination by the court of the members and value of the common assets of spouses

Pursuant to Article 684 k.p.c., which is applicable by virtue of Article 567(3) of the Code, the court shall find the division of assets, composition and value of the assets to be broken down. The starting point for these arrangements is Article 31 kro, which states that erstwhile a matrimony is concluded, a property common between spouses under the law, including their income (statutory commonality), and Article 32 § 1 cry, which states that the spouses' earnings are property acquired during the course of the legal partnership by both spouses or 1 of them.

The work to act by the General Court of its own motion means that The court is required to take an initiative in evidence. However, the condition that there is no work to initiate proceedings in so far as the parties’ claims are not raised. In addition, where the parties are represented by attorneys, the main evidence initiative shall belong to the parties. However, it is not ruled out to let evidence ex officio.

Since, therefore, in alleged partition cases, it is for the Court of First Instance to find the value of the shared assets, The court of meriti should always find this value by acting ex officio. In this respect, the position of co-owners – co-authors – is never binding on him (yes: justification for the ultimate Court order of 18 May 2006, act No IV Cz 34/2006 – Lex).

The work to establish, ex officio, the composition and value of the common assets in the procedure for the division of the common assets shall besides apply to the appeal court, which, within the limits of the appeal, must: regardless of the appeal – check the accuracy of the first instance’s order as regards the composition and value of the common assets which are the subject of the division (yes: territory Court of Szczecin in the order of 5 December 2017). Ref. Act II Ca 719/17).

In the light of the above, it must be pointed out that the Court of First Instance, in its ruling on this matter, does so only within the limits set by the participants, i.e. as regards assets designated by erstwhile spouses as forming part of their income. The regulation of Article 684 k.p.c. is only of importance that the court must draw the attention of the spouses to the request to identify all the assets to be broken down and that it is not bound by the conclusions of the spouses, if their statements show that there is inactive another common property requiring division. However, that provision does not give the court the power to conduct investigations of its own motion, whether or not there is another common property (yes: ultimate Court order of 18 January 1968, act No. III CR 97/67, OSNCP 1968 No. 10, item 169).

Moment of determining the value of the assets of the spouses and their state

The value of the assets of the joint spouses shall be determined at the date of cessation of the common interest and at the prices in force at the time of the closing of the hearing. Where the reason for the cessation of property union is the decision of divorce, the date of termination of that community shall be the date of finalisation of the judgement and not the date of the divorce ruling (yes: ultimate Court order of 11 March 2010, No. IV CSK 429/09, Lex).

The minute so appropriate for determining the value of the assets of the erstwhile spouses is the minute of the division of that property, i.e. the time of the closing of the proceeding preceding the ruling on the substance of the case.

With respect to the succession division proceedings, the provisions of which besides apply in the case of the division of common assets, The ultimate Court explained that the state of succession is determined at the time of the beginning of the inheritance, and its value at the price of the department (yes: the resolution of the full composition of the civilian Chamber of the ultimate Court of 15 December 1968 , III CZP 12/69 containing guidelines for the administration of justice and judicial practice in cases of inheritance division involving the farm, OSNCP 1970, item 39, Part III, ultimate Court ruling of 27 September 1974 III CZP 58/74, OSNCP 1975, item 90 ). This rule is full applicable in the proceedings for the division of the common assets of spouses (Articles 1035 et seq. k . c . in conjunction with Article 46 k .) (yes: A. Zieliński Procedure for the division of the common assets after the cessation of the marital union, Legal Publishing House, Warsaw 1992, p. 44 ).

The ultimate Court, in its order of 15 December 2004, No. IV CSK 356/04 (LEX No. 750006) considered that it was a well-established rule that only property which was covered by the law of the spouse at the time of its cessation and which were inactive in the property of the spouses (ex-marriage) covered by their joint rights in the fractions. Thus, all property relationships are settled according to the date of cessation of the statutory commonwealth, while the active mass is divided at the time of division.

Type of property that includes the division of common assets

As indicated, the division is subject to property belonging to the common assets and existing at the time of the division. erstwhile determining the composition of the common assets, the Court shall not include those items which were, in fact, covered by the common interest but were disposed of or utilized in a lawful manner. In the case of division, goods disposed of or utilized unjustly or squandered in specified a way that their value is counted against the share of the spouse whose conduct caused the failure of the common assets.

The division of the common assets shall cover only those assets which were components of the common assets at the time of the cessation of the marital relation and which be at the time of the division. If, on the another hand, certain components have been unlawfully utilized or squandered by 1 of the spouses, they may be settled on the circumstantial request (amountly) of the injured spouse. Both the amount of the harm and the another grounds for damages must be demonstrated by the individual afraid (yes: ultimate Court order of 15 November 2017), Act II CSK 98/17, and the ultimate Orders: of 7 November 1964, III CR 294/64, OSNCP 1965, No. 7-8, item 130, of 17 September 1999, I CKN 379/98, OSNC 2000, No. 3, item 59 and of 27 June 2003, IV CKN 291/01).

Similarly, the ultimate Court stated in its order of 26 June 2013, the mention to Act II CSK 583/12, Legalis No. 759437 stating that the subject of the procedure for the division of the common assets may be only those assets which, being covered by the property of the spouse, existed on the date of its cessation and which proceed to be at the time of the division, since, in view of Article 316 of the Code of Conduct referred to in Article 13(2) of the Code of Conduct, the circumstances prevailing on the date of closing the proceeding are decisive for the outcome.

Distribution of assets and property acquired in part from common assets

The ultimate Court in its resolution of 19 October 2018, Act III CZP 45/18, which responds to the legal issue in: Is the property acquired during the course of a matrimony in which a statutory property union government is in force, partially from the property of a separate spouse, and partially from their common property enters wholly into the common property, or does it enter into the property from which the greater part of the assets for the acquisition of the property originates, or does it enter into the property of a separate spouse and at the same time into their common property in shares corresponding to the proportion of the assets allocated to the acquisition of the property?

– indicated that the property acquired during the course of a matrimony in which the statutory property union is in force, in part by means of the individual property of 1 of the spouses, and in part by their common property, enters into the individual property of the spouse and the property of the spouses in shares corresponding to the relation between the funds allocated to its acquisition, unless the benefit of the individual property or of the common property transferred to the acquisition of the property was of an effort, respectively, on the common or individual property.

Use of assets common between the date of cessation of matrimonial property rights and the time of division of assets

The composition of the assets to be broken down should be fixed for the minute erstwhile the property to which the property to be divided ceases to be a property to which the property to which the property to which the property belongs ceases, i.e. the property covered by the property to which the property to which the property to which the property to which the property belongs ceases (Article 46). However, there may be changes in the state of its components between the minute of the cessation of the marital union and the minute of the division of the property which was covered by that union. If the common assets no longer be due to the fact that their division has already been made, or their components have been utilized or disposed of lawfully, this justifies the rejection of the application for the division of the common assets.

The procedure for the division of the common assets after the cessation of the common property between spouses, which is 1 of the peculiar non-processive proceedings (Articles 566 and 567 of the KPC), shall be considered only if it is the subject of the procedure, i.e. the common assets (with contributions from the common assets to the assets of 1 of the separate spouses). do not form part of the common assets subject to division; they no longer belong to the common property, besides those things which, at the time of ruling, do not exist, as the object of division—those whose associate has disposed by law) (yes: judgement of the Kłodzko territory Court of 25 July 2019. Act No I Ns 548/18).

Purposeful disposal by the spouse of the common assets before the division

The ultimate Court in its order of 20 January 1974, No. III CRN 384/96, Legalis No. 17689 commented that the division of the common assets does not take into account only those assets which have been utilized during or after the period of the statutory association. by law (Articles 36-40 and 42 of the Code), while account shall be taken, but only in the accounts, of assets which have been unlawfully disposed of, destroyed or squandered by 1 of the spouses. In another words, where 1 of the spouses intentionally disposes of objects belonging to the common property prior to the cessation of the common interest, those objects or their equivalents shall be accounted for on the division.

At that time, in the course of the settlements between the parties, the court takes account of specified an asset, i.e. its value is to be counted against the share of the spouse who committed specified free action (yes: ultimate Court in its decision of 19 June 2009, act No V CSK 485/08, LEX No 537040).

Similarly, when, after the matrimony relation has ceased, 1 of the spouses, without the agreement of the spouse, disposes of the property belonging to the common property. In specified a situation, the court shall allocate the common assets as if there were no regulations, by establishing the position of the sold item at the time of the cessation of the statutory partnership and its marketplace value at the time of the judgment, and by calculating the amount corresponding to the marketplace value of the item for the share of the spouse who disposed of it (yes: order of the ultimate Court of 26 September 2007, act No IV CSK 139/07, Legalis No 171996).

The ultimate Court in its Resolution of the Composition of the 7 Judges — Legal regulation — of 15 October 1962 I CO 22/62, OSNC of 1964, No 1, item 2, stated that After the cessation of the legal relationship, a regulation by 1 of the spouses (ex-wife) having participated in a substance belonging to the common property shall require the consent of the erstwhile spouse and, in the absence thereof, shall be ineffective if it would infringe the rights of that spouse under the rules on the division of the common assets (so also: resolution of the ultimate Court of 28 July 1993 III CZP 95/93, OSNC 1994, No 2, item 30, order of the ultimate Court: of 8 October 1997 II CKN 357/97, non-publ. and of 26 September 2007, IV CSK 139/07, not publ.).

As is so apparent from the wording of Article 1036 K.c., which is applicable in the procedure for the division of the common assets, the heir may, with the consent of the another heirs, arrange for a share of the inheritance. In the absence of the consent of any of the another heirs, the Regulation is ineffective in so far as it violates the rights of the heir under the inheritance section provisions (yes: ultimate Court Resolution – civilian Chamber of 28 July 1993 III CZP 95/93). erstwhile transferring the wording of this provision to the basis of the division of the matrimony property, the indication requires that the regulation to participate in the common property without the consent of the erstwhile spouse is, as provided for in the second conviction of Article 1036 k.c., ineffective. The ineffectiveness of the Regulation by being active in a substance belonging to the common assets results in the The court ruling on specified a division may treat the subject as if the participation in it were inactive part of the erstwhile spouses, so it was not besides expensive.

Similarly, the ultimate Court ruled in the resolution of the full composition of the civilian Chamber of the ultimate Court of 15 December 1969 III CZP 12/69, OSNCP of 1970, No. 3, item 39, stating that, in specified a situation, in accordance with Article 1036 of the Code, in accordance with Article 46 of the Code, the court recognized the regulation for unsuccessful against the second ex-wife, should distribute the common assets as if there were no specified regulation, i.e. taking into account the state of the subject at the time of the cessation of the law, find its value at its marketplace value at the time of the ruling and make the applicable settlements between the spouses.

Regional Court in Szczecin in its decision of 5 December 2017. Act No II Ca 719/17 he ruled that, provided that the associate had granted the ownership of the property, without the consent of the applicant, that property should besides be covered by that property. However, the Court of First Instance found that, at the date of the division of the common property, which was most likely the most valuable component of the common property, it did not form part of the common property, since the associate of its participation had given the daughter – which the territory Court infringed Article 1036 of the Code in conjunction with Article 46 of the Code by not applying it.

The ultimate Court, in its order of 19 June 2009, Case V CSK 485/08, LEX No 537040, indicated that in the procedure for the division of the common assets, the court besides ruled on the common settlement of erstwhile spouses. On the another hand, in the event of an unjustified disposal of a common asset and thus of harm to the another spouse, the injured individual shall be compensated for half of the value of the unduly spent funds. Claims for this intent should be treated in the same way as claims for reimbursement of expenses from the common assets to the individual assets of 1 of the spouses

In its judgement of 5 October 2016, Case CSK 382/15, The ultimate Court held that the Court of First Instance ruled on the assets of the common assets existing at the time of the division of the common assets and, more specifically, at the time of the closing of the proceeding (Article 316 kpc in conjunction with Article 13(2) kpc). Exceptionally, the accounts shall besides take account of assets which have been unlawfully disposed of, consumed, squandered or destroyed by 1 of the spouses. In the case of cash that is an asset which has been taken and utilized for its own usage by 1 of the spouses without second consent (This agreement is required due to the wording of Article 46 in conjunction with Article 1035 kc and in conjunction with Article 199 kc), the second spouse shall be entitled to a compensation claim under Article 45(1) kro per analogy in accordance with Article 415 kc. The value of the cash taken shall be taken into account erstwhile determining the composition of the common assets to be distributed and shall be counted against the share in the common assets of the spouse from which the funds were used.

Regulation of participation in a substance belonging to a common property after the termination of marriage

After the cessation of the legal partnership, the regulation besides requires the consent of a erstwhile spouse to participate in a substance belonging to the common property, and in its absence, it shall be ineffective if it infringes the rights of that spouse under the rules on the division of common assets (yes: resolution of the composition of 7 judges – legal rule of the ultimate Court: of 15 October 1962 I CO 22/62, OSNC of 1964, No. 1, item 2, resolution of the ultimate Court of 28 July 1993 III CZP 95/93, OSNC of 1994, No. 2, item 30, orders of the ultimate Court of 8 October 1997 II CKN 357/97, non-publ. and of 26 September 2007, IV CSK 139/07, not publ.).

In specified a situation, pursuant to Article 1036 of the Code, in accordance with Article 46 of the Code, the court, which considers this regulation to be ineffective in relation to the second ex-wife, should divide the common assets as if the Regulation were not, i.e. given the state of the substance at the time of the cessation of the legal partnership, find its value at its marketplace value at the time of the ruling and make the applicable settlements between the spouses (yes: resolution of the full composition of the civilian Chamber of the ultimate Court of 15 December 1969 III CZP 12/69, OSNCP of 1970, No 3, item 39).

The ultimate Court, in its order of 30 June 2016, No. I CSK 458/15, LEX No. 2080093, indicated that, pursuant to Article 46 kr, from the date of the cessation of the statutory partnership to the property covered by it, as well as the division of that property, the substantive law on the commonality of the property and the inheritance department, as provided for in Article 1035 kc, would apply the provisions on co-ownership in the fractions in matters not governed by Title VIII of the 4th civilian Code respectively. Article 567(3) of the Code provides that the rules on inheritance shall apply mutatis mutandis to proceedings for the division of common assets after the cessation of the property relation between spouses, and in peculiar to separate proceedings in the cases referred to in the first paragraph.

These provisions supply in turn (Article 688 k.c.) for the appropriate application of the rules on the proceedings in cases of abolition of co-ownership, in peculiar Articles 618(2) and (3). In the proceedings for the division of the common assets, the court shall, in accordance with Article 686 in conjunction with Article 567(3) of the Code, decide on the common claims of spouses (ex-married spouses) for the possession and usage of the components of the common assets, the proceeds and revenues, the contributions and debts paid, both during the period of the commonality and between its cessation and the minute of the division of the common assets.

In the case-law of the ultimate Court and of science, the view is established that Article 1036 k.c., which states that the common property after the cessation of the law, shall besides apply to the common property. the order by the heir of the succession requires the consent of the another heirs, and, in the absence of the consent of any of them, the regulation is ineffective in so far as it would prejudice the rights of that heir under the inheritance provisions.

Therefore, the admissibility of the Regulation to participate in a substance belonging to the common property after the Community has ceased to be does not rise much interpretational doubts under the applicable law.

Separation of the assets and the amount of the price obtained from the sale of the common property after the cessation of the statutory partnership (and before the division of the assets)

Furthermore, it should be pointed out that, in the event of the sale after the termination of the common property without the consent of the another spouse, it does not substance what the selling price was actually obtained by the seller's spouse, since the sale is regarded as being inconceivable to the second ex-wife and determines the value of the disposed item as if it inactive belonged to the common property, i.e. as at the time of the cessation of the statutory partnership and the prices at the time of the division (yes: ultimate Court in its decision of 30 June 2016). Act mention I CSK 458/15).

This follows from the rule that only those assets which were part of the common property on the date of the cessation of the commonwealth may be the subject of the division and stay in it on the date of the division.

Complementary division of common assets

If it turns out that the asset-sharing agreement or the final decision on the shared asset-sharing has not covered all applicable components of the common asset, each of the erstwhile spouses may apply in separate proceedings for the division of components not included in the division (yes: ultimate Court Resolution of 28 August 1986, act No III CZP 47/86, OSNC 1987/8/114 and order of the Olsztyn territory Court of 4 October 2018. Ref. Act IX Ca 302/18).

Complementary division of assets by the court is besides possible if the first division of the common assets is made by notarial acts and does not include all the assets of the joint participants, but only the components listed in that act, which was admissible in accordance with Article 1038(2) of the Code in Article 567(3) of the Code (yes: order of the Grudziądz territory Court of 2 August 2017), Act I Ns 281/17).

Since, pursuant to Article 567(3) of the Code, the rules on the succession shall apply mutatis mutandis to the proceedings for the division of common assets after the cessation of the property relation between the spouses, the provisions on the succession shall besides apply to Article 684 of the Code which requires the court to find from its office the composition and value of the assets to be distributed.

The case-law assumes that the components not declared for division or omitted by the Court of First Instance in the final judgement of division are not ceased to be common assets, may be divided by contract or judicial decision (yes: ultimate Court order of 14 July 1983, IV CR 282/83).

Ways to abolish the ownership of the property of the spouses

The distribution of the common assets shall be governed in accordance with Article 46 kr by the provisions on the inheritance heading which, pursuant to Article 1035 kc, mention to the provisions on joint ownership.

It is argued in the case-law that Article 211 (used by mention to the inheritance, i.e. the division of income) shows that physical division is the basic means of abolishing co-ownership, preferred by the legislator – which means that in the event that the abolition of co-ownership takes place by virtue of the judgement of the court, it should take into account in peculiar this way of leaving the community (yes: order of the ultimate Court of 2 February 2001, act No. IV CKN 251/00, Lex No. 52532).

Procedural rules besides indicate the precedence of this way of exiting joint ownership (Article 623 of the Code), provided that, if it is possible to abolish co-ownership in a manner that results from the parties' compatible requests, the court must regulation in accordance with those requests (Article 622 §2 of the Code). If there is no agreement from the parties and physical division is not possible, the thing may be awarded to 1 of the co-owners for payment to the others, or the court administers the sale of the goods and the distribution of the sum obtained from the sale to the co-owners.

Pursuant to Article 211 k.c., each of the co-owners may require that the division of the common assets be effected by the division of the items in its composition, unless the division would be contrary to the provisions of the law or to the socio-economic intent of the goods or entail a crucial change or a crucial decrease in the value of the property. If, therefore, the removal/distribution of the property is simply a consequence of a court decision, the court should first consider this way of leaving the joint ownership unless the co-owners agree to grant a common item to 1 of them or to sale under the provisions of the civilian Procedure Code.

In the absence of specified requests, the court should find whether there is simply a physical and legal anticipation of physical division. The lodging of a request for the division of the physical common thing causes the court to be bound by it and cannot apply any another means of abolishing co-ownership unless there are circumstances against specified a solution, and referred to in Article 211 k.c., that is, if the division would be contrary to the provisions of the law or to the socio-economic intent of the thing, or would entail a crucial change or a crucial simplification in its value.

Granting things to 1 of the erstwhile spouses with a repayment obligation

A thing which cannot be divided may be awarded under the circumstances to 1 of the co-owners with the work to repay the others (Article 212(2) kc).

If payments or repayments are fixed, the court shall indicate the date and manner of payment, the amount and date of payment of the interest and, if necessary, the manner in which they are secured. Where payments and instalments are distributed, the time limits for their payment may not exceed a full of 10 years. In cases meriting peculiar consideration of the court at the request of the debtor, it may postpone the payment of the instalments already due (§ 3).

According to settled case law, the determination of the method and time limit for payment of payments should be made by the court of its own motion, and the situations of participants burdened with repayments and entitled to repayments should be examined and considered (yes: Stanisław Rudnicki Comment on the civilian Code ... p. 234).

Sale of property belonging to the common property of spouses

A thing which cannot be divided can be sold according to the provisions of the civilian Procedure Code (Article 212 §2 kc).

Separation of property and deficiency of desire of a spouse to receive a common thing

Contrary to the will of a associate in the division proceedings, he should not be granted a common asset (yes: ultimate Court order of 14 March 2017 No. II CSK 221/16, ultimate Court order of 16 September 2016, No. IV CSK 763/15, ultimate Court order of 7 August 2014, II CSK 516/13). This position is justified in peculiar in situations where the component would be real property which would not correspond to the needs of specified a participant.

Division of marital property after divorce and preliminary provision

The intent of the preliminary decision cannot be to find the composition of the common assets, since, erstwhile determining its composition, the court must at the same time settle between the participants, which is the subject of the final decision in the case (yes: order of the ultimate Court of 9 February 2005, act No. III CK 431/04, Legalis No. 84437).

Secondly, no doubt, in the procedure for the division of the common assets, the court may, by way of preliminary ruling, regulation on the annulment of the contract concluded between the spouses amending the statutory arrangements, or the contract for the division of the common assets (yes: resolution of the ultimate Court of 7 July 1971, act No. III CZP 35/71, Legalis No. 15541).

Distribution of common assets and property dispute

In the procedure for the division of the common assets, the court shall settle any dispute over the right of property and may issue a preliminary order in this respect (Article 567(3) of the Code of Conduct in Article 688 of the Code of Conduct and Article 618(1) of the Code of Conduct).

The dispute over the right to property besides includes the request to destruct the incompatibility between the state resulting from the perpetual book and the actual legal state (yes: order of the ultimate Court of 14 December 1981, mention of Act I CZ 101/81, resolution of the ultimate Court of 29 January 1993, mention of Act III CZP 175/92, see besides J. Pietrzykowski, K. Pietrzykowski in: Code of civilian Procedure. Tom III. Commentary on A. Marciniak, Warsaw 2020, Legalis, Kom. do art. 618 kpc and Code of civilian Procedure under ed. A. Góra – Błaszczykowska, Tom I B. Commentary. Articles 425 to 729, Warsaw 2020, Legalis, comm. to Article 618 kpc).

Measures of evidence useful for the abolition of the common assets after divorce

• recourse to the banks indicated in the proposal to find the balance of accounts for the day in question,
• a request for proof from an expert in property valuation.

Share sharing and mortgage

The ultimate Court, in its decision of 26 January 2017, of Act I CSK 54/16, stated that the mortgage chargeable to the property of erstwhile spouses who are both individual debtors and debtors in kind of the bank (until the time of the division) does not affect the marketplace value of the property taken by the court as a basis for determining the amount of repayment or payment due to the another spouse who does not receive the property or the right to housing.

The division of the common assets, including the granting of a property right to 1 of the spouses, shall not in any way imply the continuation of the joint and individual work of both spouses to repay the loan, including after the division of the common assets.

Separation of the assets of the spouses and declaration of bankruptcy

In accordance with Article 124(1) of the Bankruptcy Law, as from the date on which 1 of the spouses is declared bankrupt, a property separation arises between the spouses (as referred to in Article 53(1)). If the spouses have remained in a strategy of common property, the common property of the spouses falls into bankruptcy and its division is unacceptable. A fallen spouse may incur claims in insolvency proceedings for a share of the common assets by submitting that claim to the syndication through an electronic strategy serving the judicial procedure (paragraph 3).

The prohibition on the division of the common assets laid down in Article 124(1) of the Bankruptcy Law shall not apply to situations where the cessation of the common property occurred before the declaration of bankruptcy of the spouse, in peculiar as a consequence of the dissolution of the matrimony by divorce, even if the division of the common assets was not made by the date of the bankruptcy.

District Court in Piotrków Trybunalski in judgement of 28 September 2021. Act No I C 611/21 stated that Article 127 of the Bankruptcy Law states that legal acts rendered by a bankrupt individual during the year before the date of filing for bankruptcy, which he ordered by his assets, if they were made free of charge or for payment, but that the value of the bankruptcy benefit exceeds, to a flagrant extent, the value of the benefit received by the bankrupt or reserved for the bankrupt or for a 3rd party, but that provision does not, in the view of the court, cover any procedural action in the form of a compatible application for the distribution of the assets requested in the divorce proceedings.

Separation of the assets of the spouses and harm to the creditor

In accordance with Article 527 k.c., the creditor may declare a legal act to be ineffective in relation to him, subject to the following conditions:

• damage to the creditor,
• if, as a consequence of the legal activity of the debtor, a 3rd organization has obtained a property benefit,
• the action of the debtor with the awareness of the harm to the creditor,
• the cognition or ability, with due care, to know it by a 3rd party.

The subject substance of the Paulian action may, in principle, be any crucial legal act, which governs or obliges, which may be paid and free of charge, the manner in which and the nature of the activities which may be the subject of appeal under Articles 527 and n, are recognised very widely.

It is so essential that specified an act confers an advantage on a 3rd party, in peculiar through the acquisition of a property right or the exemption from the obligation, in order to qualify as a subject of a challenge. However, this is always about the legal act of the debtor.

Legal activity in the form of a consistent request by the parties for the division of the ancillary assets may be regarded as having been wronged by creditors, e.g. when, at the time of the submission of a compatible application for the division of the ancillary assets, the individual was insolvent. However, the action on this basis may be dismissed on grounds of the principles of social coexistence (yes: the territory Court of Piotrków Trybunalski in its judgement of 28 September 2021, Ref. Act I C 611/21).

Dismission of the application for division of the common assets

In designation of the application for the division of the common assets, the court may dismiss the application only where it is established that there is no common property to which the application relates, since its division has already been made (yes: order of the ultimate Court of 15 October 2014, act No V CZ 67/14, LEX No 1598717).

Costs of the divorce settlement

Article 38(1) of the Law on Judicial Costs in civilian Matters provides that a fixed fee of PLN 1000 shall be charged on the application for the division of the common assets after the termination of the marital property union. If the application includes a compatible task for the division of this property, a fixed fee of PLN 300 (paragraph 2) shall be charged.

Article 26(2) states that in cases of divorce, separation or annulment of a marriage, in the event of the division of the common property, a charge shall besides be levied on the application or application for specified a case.

The rule of settling the costs of non-trial proceedings is based on Article 520(1) of the Code according to which each associate shall bear the costs of proceedings relating to its participation in the case. Exceptions to this rule are laid down in the following paragraphs of Article 520(c), stating that, however, if the participants are of varying interest as a consequence of the proceedings or their interests, the court may comparatively divide the work to reimburse the costs or place it on 1 of the participants in its entirety. The same shall apply to reimbursement of the costs of proceedings ordered by participants (§ 2). Paragraph 3 of Article 520 provides that if the interests of participants are conflicting, the court may impose on a associate whose requests have been rejected or rejected the work to reimburse the costs incurred by another participant.

This provision shall apply mutatis mutandis if the associate has acted untotally or of course inappropriately. It can be assumed that the interests of the parties in the case are contradictory erstwhile the applicant requests a supplementary division of the assets and the associate opposes the application (yes: territory Court of Tczew in the order of 9 November 2018, Ref. Act I Ns 169/17).

Remuneration of a lawyer in the divorce case

The minimum remuneration of the lawyer shall be determined by paragraph 2 Regulations of the Minister of Justice on fees for legal acts. This remuneration shall depend on the value of the subject substance of the dispute, which shall be the value of the spouse's share of the common assets.

Examples from case law