Division of joint property

Marital joint property arises between the spouses at the time of the marriage. However, the spouses may, by means of a marriage contract, extend or limit the marital property or establish separation of property. A marriage contract may be concluded before entering into a marriage.

The joint property may be divided only after the end of the matrimonial property. The marital property community ceases in the following cases:

• in case of divorce of the spouses by the court,
• in case of the separation of the spouses by the court,
• in case of establishing a separation of property between spouses – by conclusion of a marriage contract by the spouses or by a court decision (compulsory property regime),
• in the case of incapacitation of one of the spouses.

The spouses may divide the marital joint property in the contract, and in the event of disagreement, each spouse may apply to the court for the division of joint property. The joint property division agreement may be concluded in an oral, ordinary written or qualified written form (before the notary public). Each spouse is entitled to 50% of the common property.

Dudkowiak Family Law Firm provides services in cases concerning the division of marital joint property of spouses. We deal with cases regarding the division of joint property with a cross-border element, we will also take care of real estate located outside Poland.

Our Family Lawyers provides the following services concerning the joint matrimonial property regime:

• preparation of a marriage separation agreement (postnuptial agreement) and supervision of proceeding before a notary public,
• drawing up an application for compulsory marital property separation and representation before the court,
• conducting negotiations regarding the division of joint property agreement, preparation of a settlement on the division of joint property, supervision of proceeding before a notary public,
• preparation of the application for division of joint marital property and representation before the court in Poland,
• assistance in assets and real estate valuation,
• assistance in selling real estate in Poland.

Our family and divorce lawyers will help determine what is included in the joint property of the spouses and which components belong to their personal property. As part of the comprehensive service, our attorneys will take care of the division of marital joint property proceeding – we will conduct settlement negotiations to reach a favorable settlement on the division of property. If no agreement can be found, then we will prepare an appropriate division petition and represent you before the Polish court.

If you have any questions or doubts, please do not hesitate to contact our Family Law Firm, we are waiting to give you legal advice.

Divorce and division of marital property

Upon the conclusion of the marriage, a joint property arises between the spouses by law covering property acquired during the marriage by both spouses or by one of them – joint marital property. This means that all kinds of material goods such as earnings, savings, acquired movable and immovable property and other income gain after getting marriage become the joint property of both spouses. The marital joint property includes everything that is not personal property of the spouses.

The separation of marital joint property takes place upon the divorce decree becomes final unless the separation of property has been established earlier – contractually by the spouses or by the court upon request.

The division of marital joint property can be done before:

• the court in the divorce proceeding or in a separate division court proceeding,
• the notary public (if the spouses agree on the division),
• by private contract of the spouses – it does not apply to situations where the marital property includes real estate, cooperative ownership right to premises or the right of perpetual usufruct of land.

The division of marital joint property can be done by:

• granting ownership of one/few/all assets of joint property to one of the spouses, with the obligation of proportional repayment to the other spouse,
• ordering the sale of items included in the joint property and the division of the price obtained between the spouses,
• division of things in nature (e.g. division of the house into two apartments).

The division of joint property includes:

• the assets at the time of termination of the statutory joint ownership and existing at the time of the division,
• expenditure made from joint property into personal property and from personal property into joint property during the duration of statutory marital joint property,
• outlays and expenses made by each of the spouses (or ex-spouses) in the period from the termination of the joint property until the division of the joint property.

Division of joint property court proceeding

The division of marital joint property may be done by the divorce court during your divorce case or in a separate court proceeding before the court. In practice it is rare that the divorce court decides about the division.

To initiate a division proceeding it is necessary to file in competent District Court in Poland an appropriate petition with required documents such as document that confirms the termination of joint property. Court fee for division petition is 1.000,00 zł or 300,00 zł if the property division project of both spouses is consistent. The first hearing should be held approx. 3-4 months after the divorce petition has been filed. Both spouses have right to file an appeal against the court division judgement.

What is joint marital property?

Joint marital property includes almost all goods acquired during the marriage – goods acquired jointly by the spouses and those obtained by one spouse. The joint property also includes funds accumulated in pension funds, income from joint property and personal property of both of spouse – including, for example, rent for a flat owned by a husband or wife.

What property is divided after divorce?

Only the spouses’ joint marital property is divided after divorce. The composition of the joint property is determined as of the date of termination of joint property, and its value at market prices from the date of division. It is recommended to advice a family lawyer in Poland who can help you to determine what assets are included in the joint marital property and are subject to division after divorce.

What property is not divided after divorce?

Each spouses’ personal property is not subject to division, it means that your personal property will remain your sole property after divorce. Personal property includes i.a. all goods purchased before marriage, received as a result of inheritance or donation, compensation for loss of health or compensation for harm caused.

How much of joint marital property will I get after the divorce?

Both spouses have equal shares in the marital joint property so you will get half of the joint property after divorce.

For important reasons, each of the spouses may demand unequal shares – so that the shares in the joint property be determined by the court taking into account the extent to which each of spouses contributed to the creation of this property. When assessing the extent to which each of the spouses contributed to the creation of the joint property, the amount of personal work in raising children and in the common household is also considered.

Will I get a share of the marital property after the divorce if the court found me guilty of marriage breakdown?

Yes, you will receive a part of the marital joint property even if the divorce court finds you guilty of marriage breakdown. The decision on fault does not affect the division of the joint property and the share you are entitled to.

How long do you have to be married to receive some of the marital property after the divorce?

The duration of the marriage does not affect the division of the joint marital property. No matter how long the marriage lasted, the joint property arises between the spouses and should be divided after the divorce so you will get your share of the joint marital property.

Does marital joint property always arise after marriage?

The joint marital property does not arise between the spouses when the spouses conclude a prenuptial agreement before entering marriage.