Can marital property be divided in the divorce judgment itself?

Divorce proceedings are stressful enough without the prospect of a separate court case afterwards just to divide the assets. Many spouses ask whether it is possible to wrap everything up in a single judgment. The answer is yes – but only under specific conditions. This article explains exactly what those conditions are.

Table of contents

1. The general position – what happens to joint property on divorce?
2. When can the court divide property within the divorce judgment?
3. The family home – the special role of Article 58 § 2 of the Family and Guardianship Code
4. Why reaching agreement pays off
5. When division of property within the divorce judgment is not possible
6. Practical guidance
7. FAQ

The general position – what happens to joint property on divorce?

A divorce judgment does not automatically divide the spouses’ joint property. When the divorce judgment becomes final, the statutory joint marital property regime (wspólność majątkowa) comes to an end – but the assets accumulated during the marriage remain co-owned by the former spouses until they are formally divided.

Division of the joint estate can take place in one of two ways: either in separate court proceedings for division of joint marital property (commenced after the divorce judgment has become final), or – and this is what most people reading this article are interested in – within the divorce judgment itself, provided certain conditions are met.

When can the court divide property within the divorce judgment?

The legal basis is Article 58 § 3 of the Family and Guardianship Code (Kodeks rodzinny i opiekuńczy), which provides that on the application of either spouse the court may, in the divorce judgment, divide the joint marital estate – but only where doing so will not cause undue delay in the proceedings.

In practice this means one thing: the court will divide the joint estate within the divorce judgment only where both spouses agree on how it should be divided. Where they agree, there is no dispute, no need for extensive evidence to be heard, no expert valuers assessing property. The case can be concluded efficiently and swiftly.

Where the spouses disagree about who should receive what, the court will decline to carry out the division within the divorce proceedings. A property dispute would significantly extend the case, and the court is also required to protect the efficient resolution of family matters – particularly where children and their welfare are involved.

The family home – the special role of Article 58 § 2

The family home is in the vast majority of cases the most significant and most valuable component of the joint marital estate. Article 58 § 2 of the Family and Guardianship Code imposes on the court an obligation – not merely a power – to rule on the manner in which the jointly owned home will be used after the divorce, where the spouses are still living together at the time.

The provision goes further. Where both spouses make a joint application, the court may in the divorce judgment order one of two more far-reaching outcomes: a physical division of the property into two separate units, or the allocation of the property to one spouse exclusively – with a corresponding obligation on the other spouse to vacate it.

The crucial qualification is this: both of these more extensive options (physical division or exclusive allocation to one spouse) require a joint application by both spouses. On the unilateral request of one party alone, the court will neither divide the property nor allocate it exclusively to one of them. What it can do on a unilateral basis is regulate how the home will be used after the divorce – for example, designating which rooms or areas each spouse will occupy.

Why reaching agreement pays off

The answer is straightforward: it saves time, money, and stress. Separate post-divorce proceedings for division of marital property – particularly where real estate is involved – are an independent court case that can take anywhere from one to several years. Add to that the costs of expert valuations, legal representation, and court fees.

Spouses who are able to agree on financial matters and resolve the division of their property within the divorce proceedings close all the chapters of their marriage in a single case. The divorce judgment becomes a document that finally settles everything – without any need to return to court.

In our experience, many couples who seem completely unable to agree on financial matters at the outset do reach a consensual solution with the help of a mediator or a lawyer who can identify options that work for both sides. Family mediation is a particularly valuable tool here – it reduces the temperature of the dispute and allows the parties to focus on practical solutions rather than entrenched positions.

Practical guidance

If you want the divorce judgment to include a division of the joint estate, the groundwork needs to be laid in advance. Talk to your spouse about a possible division – ideally before the petition reaches the court. Draw up a list of the assets forming the joint estate and try to agree on what each of you will receive.

If you reach agreement, the application for division of property should be included in the divorce petition itself or in the response to it. It is worth attaching a draft division plan – specifying which assets pass to each spouse, and where one spouse is to pay the other a sum to equalise shares, the amount and payment timeline.

If agreement proves impossible at this stage, consider mediation. A family mediator can help find a solution both parties will accept – without the need for years of adversarial litigation.

FAQ

Can I apply for division of property in the divorce petition without my spouse’s agreement? You can make the application – but the court will only proceed with the division where doing so will not cause undue delay. In practice, without the other spouse’s agreement on the method of division, the court will typically decline to divide the property within the divorce judgment and refer the parties to separate proceedings.

Does a property division application within divorce proceedings involve a separate court fee? Yes. An application for division of joint marital property is subject to a separate court fee, the amount of which depends on the value of the assets being divided. Unlike the divorce filing fee (a flat PLN 600), the fee for a property division application is calculated as a percentage of the value of the estate.

What if we do not know what assets we jointly own? Before making an application, it is worth drawing up an inventory of the joint estate: real property, vehicles, bank account balances, investments, valuable items of personal property. Each spouse has the right to information about the assets forming the joint estate. Where establishing the full picture proves difficult, a lawyer can assist.

Does property acquired before the marriage form part of the joint estate? As a general rule, no. Assets acquired before the marriage form part of each spouse’s personal property. The joint estate comprises assets acquired during the marriage (with the exception of categories listed in Article 33 of the Family and Guardianship Code, including gifts and inheritances received by one spouse alone). The line between joint and personal property is not always clear in practice – legal advice on the specific situation is recommended.

How long do separate property division proceedings take? It depends on the complexity of the case. Straightforward cases – for example, a single asset and an agreed division – can be resolved within a few months. Contested cases involving real estate, expert valuations, and the accounting of financial contributions made by each party can take two to three years or more.

I am a foreign national – does Polish law on marital property apply to me? The applicable law depends on factors including the spouses’ common nationality, their habitual residence, and whether they entered into any property agreement. EU Regulation No 2016/1103 on matrimonial property regimes applies as between EU member states and may determine which country’s law governs the property. Where one or both spouses are non-EU nationals, or where assets are located in multiple countries, the analysis is more complex. Legal advice specific to the cross-border situation is strongly recommended.

Read more about how joint marital property is divided after divorce in Poland and what the process involves → [link to relevant page]

Want to close all the financial chapters of your divorce in a single set of 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