3 How can the spouses arrange their property regime?
3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?
Spouses may extend or restrict the statutory community of property regime or establish a separation of property regime or a separation of property regime with equalisation of accrued gains by means of a marriage contract (drawn up in the form of a notarial authentic instrument). This contract may be concluded either before entering into marriage or during the marriage. The marriage contract may be changed or terminated. If terminated during the marriage, the law dictates that the statutory community of property regime applies between the spouses unless the spouses have decided otherwise. Where third parties are concerned, a spouse may refer to the marriage contract if its conclusion and content were known to them (Art. 47 and 471 of the Family and Guardianship Code).
The spouses are not allowed to extend the community property to:
- 1) assets that might be acquired in future by inheritance, bequest or donation;
- 2) property rights resulting from a joint ownership of property subject to separate regulations (e.g. joint ownership in a civil law partnership or commercial partnership);
- 3) inalienable rights to which only one person may be entitled;
- 4) claims for damages for bodily injury or a health disorder, provided they are not part of the community property, or claims for a compensation for harm suffered;
- 5) the spouses’ non-due claims for remuneration from work or for income from other profit-oriented activities (Art. 49 of the Family and Guardianship Code).
3.2. What are the formal requirements and who should I contact?
The marriage contract must take the form of a notarial authentic instrument, otherwise it is null and void (Art. 47 para. 1 of the Family and Guardianship Code and Art. 73 para. 2 of the Civil Code).
3.3. When may the contract be concluded and when does it come into effect?
The marriage contract may be entered into before marriage, in which case it will enter into effect when the marriage is celebrated, or during the marriage, in which case it will enter into effect immediately.
3.4. May an existing contract be modified by the spouses? If so, under what conditions?
The spouses may change the marriage contract at any time, as long as the formal requirements described under 3.2 are fulfilled. Polish law does not stipulate a minimum interval between drawing up and changing the marriage contract.
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