Cessation of the marital property regime
Issuing of the final divorce or separation decree results in the abolishment of the marital property regime. Implicitly, from the date of coming into force of the court judgment, the spouses are no longer bound by the marital property regime and each of them starts to gather their own separate assets. Nevertheless the assets which have been gathered by the spouses during their marriage remains their common property and must be divided. It should be noted that the court may determine the mode of sharing of the marital property upon issuance of the divorce decree. However, this does not happen frequently, as both parties need to unanimously consent to such procedure.
How is the joint marital property shared?
After divorce, the couple may agree upon the mode of sharing of their marital property either by way of out-of-court settlement or in the course of judicial proceedings, if no such settlement can be made. Our lawyers may represent the spouses both in the course of out-of-court negotiations and before the court. Before such division of property is effected, the parties should determine all assets being part of the joint property of spouses.
What assets are included in the joint marital property?
Pursuant to the provisions of the Family and Custody Code, the joint marital property includes all assets acquired by either one or both spouses during their marriage including, in particular, real properties (e.g. apartments, lands, houses) and chattels (e.g. cars, household equipment), salaries and other proceeds obtained by each spouse (e.g. rent, interest on bank deposits), funds deposited within open or employee pension accounts and premiums collected by the Social Insurance Institution.
What assets are not included in the joint marital property?
The assets which have been acquired prior to the matrimony are not regarded as part of the joint property of spouses. Hence, if one of the spouses bought an apartment before getting married, it will remain his/her sole property even if the spouses have lived there together. Although the other spouse will not be entitled to the apartment, s/he may nonetheless demand reimbursement for any investments (i.e. outlays) made from the joint property into such apartment (e.g. if the apartment has been subsequently refurbished by both spouses). Moreover, the joint property of spouses does not include any assets which have been inherited by or donated to individual spouses, unless the donor has determined otherwise. The assets which have been purchased by means of the sole resources of each spouse are not included into the communal property, either. This happens when one of the spouses sells a real estate which was acquired by him/herself before the matrimony. Such real estate cannot be regarded as a joint asset, since it was acquired by a single spouse before the matrimony. Hence, pursuant to the Polish Civil Code, the proceeds from sale of such real estate should be also considered as the property of that spouse. If s/he then uses such proceeds to purchase another real estate during his/her marriage, such estate will also be regarded as his/her personal property.
The law also provides for a number of exceptions when assets acquired during the marriage are not included into the marital property. In fact, determination of the joint marital property calls for profound knowledge of law or assistance of a professional lawyer.
Division of property – proceedings
After the joint property of spouses has been determined for the purpose of its division in the case of divorce, the spouses should mutually agree which assets are going to be retained or rejected by each of them. At this stage, disputes may occur quite frequently for e.g. when each spouse would like to retain the title to their common apartment. After the spouses finally agree upon the mode of sharing their property, the values of specific assets must be assessed in order to determine the value of mutual reimbursements to be made by the spouses. In the event that the spouses have resolved that one of them will retain the apartment, the other spouse will reserve the right to be reimbursed for half of its value. This process can also trigger disputes between the spouses, especially when there exist no other assets which could be used for the purpose of their mutual settlement. In the case of controversies concerning the value of specific assets, the parties may refer to an independent property valuator. The next step of the property sharing process includes drawing up of a relevant agreement between the spouses, which must be made in the form of a notarial deed, if the joint property of spouses includes any real estate.
As it has been demonstrated, the process of sharing of the joint property of spouses after divorce may involve extra costs. The out-of-court procedure is definitely less expensive and much faster than judicial proceedings. The duration of judicial proceedings which have been instituted before courts in Warsaw can be really extensive and the parties often have to wait for the final judgement for many years.
Our law office has a long-term experience in the field of sharing of marital property after divorce. We can represent our clients both in Warsaw and throughout Poland. Our lawyers will be happy to offer you legal advice and recommend the best strategies to ensure inexpensive and seamless sharing of your conjugal property.
If you are interested in obtaining our legal assistance, please contact us in order to make an appointment with our lawyer.
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