Abolition of Common Property Regime in Poland

Abolition of Common Property Regime in Poland

As a rule, from the moment of marriage the common property regime arises between the spouses. However, sometimes on the initiative of one of the spouses or both of them the need to abolish common property regime appears. This may be caused, for example, by the misunderstandings of the spouses regarding the disposal of joint property. Such abolition may take place by way of an agreement (intercourse)   between the spouses or by establishing property separation in court on the claim of one of the spouses.

Abolition of common property regime  in Poland – by the court

From legal point of view, the issue of the judicial abolition of common property regime is more challenging and puzzling. Pursuant to Article 52 of the Family and Guardianship Code of Poland, each of the spouses may submit a claim for property separation. Article 52 § 1 clarifies that the establishment of separate regime of the property may be demanded only basing on  “important reasons”. In this respect a couple of questions arise: what does the notion “important reasons” mean? What are the conditions for the abolition of joint property?

Abolition of common property regime  in Poland – conditions and reasons

Generally speaking, there are two types of conditions for the abolition of joint property of the spouses: property-based (everything that is directly related to joint property) and non-property-based (for example, actual separation). Judicial practice shows that, in principle, actual separation alone can be an important reason for the abolition of marital property regime (I CKN 98/99). However, the Supreme Court of Poland repeated several times that “an important reason” within the meaning of Art. 52 § 1 KRO is not every form of actual separation of the spouses, but only one that at the same time prevents or significantly hinders cooperation in the management of their joint property (II CKN 1070/98). This happens in situations where each of the spouses has his or her own property and they simply do not contact in matters of joint property, because they are not able to agree on the  disposal of  common property that would suit both the wife and the husband. Despite this, the Supreme Court of Poland, basing on legal doctrine and jurisprudence, mentions as a basis for the abolition of joint property “an infringement or serious threat to the property interest of one of the spouses and, as a rule, also the best  interests of the family” (for example, the case III RC 245/15).
Among the most important factors that influence the courts’ decision on the establishment of separate property regime are the following: the fact that one of the spouses has  debts, the amount of the debts, the circumstances in which the debt has arisen and the ways in which he or she fulfills his or her obligations, as well as issues related to the upbringing and care of the minor children of the parties of the conflict (situations when, for example , only one of the spouses actually takes care of the child), squandering  of common property, gross mismanagement, reluctance to increase  and maintain common marital property, drug and alcohol abuse by one of the spouses. 

Abolition of joint property regime in Poland –  with a retrospective date 

It follows from Article 52 § 2 that property separation arises on the date indicated in the judgment which establishes it. However, claiming on the same paragraph, it is possible to establish a separation of property with a retrospective date. However, It is worth noting,  that the court establishes property separation with the date earlier than the date the court is seised only in exceptional cases. For example, when the spouses had already been living apart at the time the claim was made. Nevertheless, it should be borne in mind that the court always decides to abolish common property regime taking into account the specific circumstances of the case, trying to take consideration of as many factors as it is possible.

Abolition of common property regime  in Poland – enforcement of Polish judgements abroad

Since Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes does not cover Poland, the issue of recognition and enforcement of Polish judgments on the abolition of common matrimonial property is particular difficult. This means that the spouse who demands the separation of joint property and its enforceability abroad is to take into account Polish international agreements on legal assistance in this respect (for example, an agreement with the Czech Republic on legal assistance and legal relations in civil, family, employee matters and criminal from 1987). The same applies to enforcement of judgments outside the EU. In any case, the success in the abolition of common property regime fully depends on the circumstances of each situation. Hence, a court attitude may vary from case to case. Taking into account these facts, it should be admitted that the assistance of an experienced legal advisor is absolutely indispensible in this type of situations.

Recordings in a divorce case in Poland. Can the other party use them?

Recordings in a divorce case in Poland – our clients often ask whether they could  be used gainst them.

The issue of recordings in a divorce case in Poland and the admissibility of referring to recordings in  civil proceedings being a divorce case made by either party or both parties appears more and more often.  This issue generally applies to wiretapped recordings.

Recordings in a divorce case in Poland – the latest judgment of the Supreme Court

The Supreme Court has been repeatedly analyzing the problem of using such recordings. The latest judgment was issued on  April 22, 2016 (file number II CSK 478/15). It  confirms the overwhelming trend in allowing such evidence by courts. In this verdict, we read that the recording might be used as evidence in court. This is provided that the circumstances in which the recording took place do not indicate a serious violation of the principles of social coexistence. At the same time, the court pointed out that the taking of such evidence should be justified by the need to guarantee another person the right to a fair trial.

Recordings in a divorce case in Poland  – Supreme Court opinion

The Supreme Court takes the view that evidence from secret recordings cannot be disqualified in advance. Such evidence, however, requires a fair assessment to determine whether the recording, due to its content and method of acquisition, will not violate the privacy rights of the recorded person. The recorded person’s right to privacy is guaranteed by Article 47 of the Constitution. If such recording violates the privacy rights of the recorded person, then it should be considered whether the violation of this right may be justified by the need to ensure that another person has the right to a fair trial. The right to a fair trial is also guaranteed in the Constitution, in Art. 45.

Recordings in a divorce case in Poland – which circumstances may disqualify a recording?

Exceptionally, certain circumstances in which the recording took place may disqualify evidence from a recording in a divorce case in Poland. If they clearly indicate a serious violation of the principles of social coexistence, e.g. by the unacceptable use of a difficult situation (e.g. difficult family or professional situation), mental or physical condition (e.g. nervous breakdown, depression) of the person with whom the conversation was conducted.

Recordings in a divorce case in Poland – what is the actual value of recordings?

Evidence carried out in the course of proceedings should be assessed in terms of its factual value. An element of the recording such as its integrity or continuity should be subject to evaluation. Lack of continuity may not necessarily mean the manipulate  of its content. It should be assessed here whether the lack of continuity is the result of a  deliberate manipulation or, for example, the effect of the recording activation mechanism. It should also be assessed whether the recording person has not directed the conversation in a specific way to persuade the recorded person to express certain phrases or to react. To carry out such an assessment, an opinion of court experts will be needed.

Court experts dealing with similar analyzes often work in teams to give  full picture of the recordings they have examined. These are teams consisting of philologists, speech therapists, psychologists and IT specialists. The role of the advocate  will be a fair use of expert opinions in a divorce case in Poland.