Separation of marital property during divorce proceedings in Poland – is it possible?

Divorce proceedings in Poland can take a long time – sometimes two or three years, and in particularly contentious cases even longer. Throughout that period, spouses who have long since stopped sharing a life together remain formally subject to joint marital property. Everything they earn and every obligation they take on may still affect both of them. For many people, that is a real and significant risk. The question naturally arises: is there anything that can be done about it without waiting for a final divorce judgment?

The answer is yes – and this article explains how.

Table of contents

1. What is joint marital property and why does it matter during divorce?
2. Two routes to separation of property – court or notary
3. Court-ordered separation of property – what are “important reasons”?
4. Can separation of property be backdated?
5. How this worked in practice – case reference IV RC 93/15
6. Practical guidance
7. FAQ

What is joint marital property and why does it matter during divorce?

Unless spouses entered into a prenuptial or postnuptial agreement before or during the marriage, Polish law establishes a regime of statutory joint marital property (ustawowa wspólność majątkowa) from the moment of marriage. This means that, as a general rule, everything each spouse earns or acquires during the marriage forms part of the joint estate.

Joint property continues until it is formally terminated – and this does not happen automatically when a divorce petition is filed. Until the court grants a divorce or legal separation, until the spouses sign a notarial agreement, or until a court order separating their property is issued, both spouses remain co-owners of the joint estate and may be jointly affected by financial obligations incurred by the other.

In lengthy divorce proceedings, this can mean concrete risk. One spouse takes out a loan, dissipates assets, or makes irresponsible financial decisions – and the other bears the consequences. For foreign nationals in particular, this aspect of Polish family law can come as a surprise, especially where their home legal system treats financial separation as an automatic consequence of separation or the filing of divorce proceedings.

Two routes to separation of property – court or notary

Polish law provides two ways of terminating joint marital property while the marriage is still formally subsisting.

The first is a notarial agreement (intercyza). If both spouses agree to change their property regime, they can visit a notary at any time and sign an agreement establishing separation of property. This is a fast and relatively straightforward route that does not require court proceedings. The separation takes effect when the agreement is signed (Article 47 of the Family and Guardianship Code), unless the parties agree on a different date.

The second route is a court action – and this is the focus of the present article. Where the spouses cannot agree, either of them may apply to the court for an order establishing separation of property. The legal basis is Article 52 § 1 of the Family and Guardianship Code, which empowers the court to order separation of property for important reasons (ważne powody) on the application of either spouse.

Court-ordered separation of property – what are “important reasons”?

The statute uses the phrase “important reasons” without defining it exhaustively – and rightly so, because the circumstances of real families are too varied to be captured in a fixed list. In practice, courts treat as important reasons any circumstances that make the continuation of joint marital property a threat to one spouse’s interests or contrary to the good of the family.

The most common examples include: the spouses living separately and running independent households; one spouse dissipating the joint estate; one spouse taking on debts without the knowledge or consent of the other; addiction or gambling problems; and – as in the case discussed below – one spouse ceasing to service shared financial obligations while divorce proceedings are ongoing.

The mere fact that divorce proceedings are pending is not, by itself, sufficient. But combined with factual separation and the breakdown of any meaningful financial cooperation between the spouses, it regularly forms a strong basis for an application.

Can separation of property be backdated?

Yes – and this is one of the most practically important aspects of this area of law. Under Article 52 § 2 of the Family and Guardianship Code, the court may exceptionally establish separation of property with effect from a date earlier than the date on which the petition was filed, where important reasons justify doing so. This applies where the actual financial separation between the spouses occurred at an earlier, identifiable point in time.

This provision is used relatively rarely, but it is highly valuable in practice. It allows a spouse to be protected from liability for obligations incurred by the other party after the date of actual separation – even if the court action was brought some time later. To obtain a backdated order, the applicant must identify a specific event and a specific date, and must support this with evidence.

How this worked in practice – case reference IV RC 93/15

The District Court (Sąd Rejonowy) Poznań-Stare Miasto decided a case under reference IV RC 93/15 that illustrates these principles clearly. The spouses had been factually separated since 2012, had not shared a household since that time, and had no shared plans or investments. Divorce proceedings were ongoing between them. After separating, they had agreed to continue jointly servicing a mortgage taken out during the marriage – and did so until 3 November 2014, when the husband stopped making payments on the loan.

The wife filed a petition seeking separation of property with effect from 3 November 2014 – the date on which the husband had ceased contributing to the mortgage. The husband, for his part, applied for separation of property but from the date of filing the petition, namely 2 March 2015, and disputed that he had stopped making payments.

The court accepted the wife’s position. In its reasoning, the court held that the existing state of factual separation between the parties, the impossibility of reaching agreement on shared financial matters, and the pending divorce proceedings together justified establishing separation of property from the earlier date requested by the wife. The order was made with effect from 3 November 2014.

This case illustrates that a court can establish separation of marital property regardless of the stage reached in the divorce proceedings, and that in appropriate circumstances it can do so with effect from a date before the petition was filed.

Practical guidance

A few points are worth bearing in mind if you are considering applying for separation of marital property.

Act promptly. The longer joint property continues during a contentious situation, the greater the risk that one spouse’s financial decisions will affect the other. Document the factual separation and financial independence: tenancy agreements, bank transfers, account statements, correspondence. If you want a backdated order, you need to identify a specific event and a specific date – and be able to prove it.

If both spouses agree, the notarial route is faster and less expensive. If the other spouse cannot be persuaded to cooperate, a court application is the answer.

For foreign nationals, one practical note: all documents submitted to a Polish court must be in Polish. Documents in other languages require a sworn translation (tłumaczenie przysięgłe). If your financial situation involves accounts, assets, or obligations in other countries, this will need to be addressed in the proceedings and may require additional documentation.

FAQ

Can I apply for separation of property if my spouse refuses to agree to a divorce? Yes. An application for separation of marital property is entirely independent of divorce proceedings. You can bring it regardless of whether divorce proceedings are ongoing, and regardless of the other spouse’s position on the divorce itself.

Does separation of property mean the joint estate is automatically divided? No. Separation of property establishes a new property regime going forward – from that point, each spouse manages their own assets independently. Assets accumulated before the date of separation remain jointly owned and require a separate process of division, either by agreement or through court proceedings.

Am I liable for my spouse’s debts after separation of property is established? As a general rule, no – obligations incurred by a spouse after the date of the separation order are that spouse’s sole responsibility. For debts arising before the separation, the rules on liability depend on the nature of the obligation and whether the other spouse consented to it. This is an area where the specific facts matter considerably, and legal advice on individual circumstances is recommended.

Which court handles an application for separation of marital property? The application is filed with the family division of the district court (sąd rejonowy, wydział rodzinny) with jurisdiction over the defendant’s place of residence or the last shared place of residence of the spouses.

Does a notarial agreement take effect immediately? Yes. Separation of property established by notarial agreement takes effect when the agreement is signed, unless the parties agree otherwise. It does not require court approval.

I am a foreign national – does Polish law on marital property apply to me? The answer depends on a number of factors, including your nationality, where you married, where you are habitually resident, and whether you entered into any property agreement before or during the marriage. EU Regulation No 2016/1103 on matrimonial property regimes applies between EU member states and may determine which country’s law governs your property. Where one or both spouses are non-EU nationals, or where assets are located in multiple countries, the analysis can be more complex. Legal advice specific to your situation is strongly recommended before taking any steps.

Thinking about applying for separation of marital property during your divorce proceedings? Call: +48 531 335 713 or email: kancelaria@prawnikodrozwodu.pl

This article is for general informational purposes only and does not constitute legal advice. Every family law case is individual and requires analysis of the specific facts and documents involved. The law firm accepts no liability for actions taken on the basis of the information contained in this article. For advice tailored to your situation, please contact our office.

Kancelaria Prawa Rodzinnego (Family Law Office): Adwokat Michalina Koligot, Adwokat Marta Krzyżanowicz, Adwokat Anna Konrady, Radca prawny Joanna Jędrzejewska ul. Mickiewicza 18a/3, 60-834 Poznań | tel. +48 531 335 713 | kancelaria@prawnikodrozwodu.pl | www.prawnikodrozwodu.pl