5 What are the consequences of divorce/separation?
5.1. How is the property (rights in rem) divided?
If the statutory community of property regime ceases, the community property and division thereof are regulated by the provisions on jointly inherited assets and on the distribution of estates, respectively (Art. 46 of the Family and Guardianship Code).
The community property may be divided when the community of property regime ceases during the marriage, for instance as a result of a court decision or an agreement, or when the community of property regime ceases when the marriage has been dissolved (by divorce or separation). Divorce or separation proceedings are not related to the division of community property. Most often community property is divided in separate proceedings. Divorce and separation take place as a result of a court decision. Community property may be divided by the court or by an agreement that requires the form of a notarial authentic instrument if the community property includes real estate (the same applies to other special rights).
The spouses’ shares in the community property are equal unless the marriage contract provides otherwise. The court may be requested to determine unequal shares (Art. 504 of the Family and Guardianship Code).
Each spouse should repay any expenses and expenditure made from the community property for his/her personal property, with the exception of expenses and expenditure for assets that brought income. A spouse may demand that expenses and expenditure made from his/her personal property for the community property be reimbursed. Neither spouse may demand the reimbursement of expenses and expenditure made to meet the family's needs, unless these increased the value of the community property at the moment when the community of property regime ceased. The reimbursement is made when dividing the community property. However, the court may decide that expenses should be repaid earlier if this is necessary for the well-being of the family (Art. 45 para. 1 and 2 of the Family and Guardianship Code).
5.2. Who is liable for existing debts after the divorce/separation?
Spouses remain responsible for existing debts after divorce/separation. The division of community property does not include debts. Any agreement between the spouses on the repayment of debts will be ineffective towards creditors unless a creditor consents to the assumption of debt by one spouse.
5.3. Does one spouse have a claim to an equalisation payment?
In case of termination of a separation of property regime with an equalisation of accrued gains, the increase in the value of the property of each spouse that occurred during the regime may be equalised by payment or in kind (Art. 511 para. 1 of the Family and Guardianship Code). The claim for such an equalisation prescribes after ten years (Art. 118 of the Civil Code).
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Couples in Poland
Current country: Germany