Many people wonder whether assets can be divided before a divorce judgment is issued – for example where the spouses are already living separately, leading independent lives and want to sort out their financial affairs as soon as possible. The answer is not straightforward: as a general rule, division of the matrimonial estate during the subsistence of matrimonial community of property is not possible – but there are several routes that allow it to happen earlier.

The Basic Rule – No Division While Community of Property Subsists

For as long as statutory matrimonial community of property exists between the spouses, neither of them may demand division of the matrimonial estate. Division becomes possible only once the community comes to an end – which happens, among other things, when a divorce, separation or separate property judgment becomes final, and also by operation of law where one spouse is incapacitated or declared bankrupt.

Route One – a Matrimonial Property Agreement During the Marriage

At any point – including during the marriage – spouses may enter into a matrimonial property agreement in the form of a notarial deed. Such an agreement may establish separate property between them, separate property with equalisation of gains, or may extend or restrict the statutory community. A matrimonial property agreement may also be entered into before the marriage takes place.

From the moment the agreement is concluded, matrimonial community of property comes to an end. From that point each spouse manages their own assets independently and retains both the assets acquired before the agreement and those acquired afterwards.

Once separate property has been established by agreement, division of the previously shared estate becomes possible – by agreement between the spouses or before the court.

The condition: both spouses must be willing to sign the agreement. Where one refuses, another route is necessary.

Route Two – Judicial Separation of Property

Where one spouse refuses to enter into a property agreement, the other may apply to the court for the establishment of separate property for important reasons. Important reasons are situations in which the continuation of community of property threatens the financial interests of a spouse or their family – for example flagrant squandering of assets, incurring debts without the other spouse’s knowledge, addictions leading to depletion of the estate or a prolonged period of living apart.

A significant rule: in exceptional cases the court may establish separate property with effect from a date earlier than the date the claim was brought – in particular where the spouses have been living apart. This means it is possible to “wind back” the effects of matrimonial community of property to an earlier date.

Judicial establishment of separate property may be sought not only by a spouse but also by a creditor of one of the spouses – where the creditor shows that satisfying a debt evidenced by an enforcement title requires division of the matrimonial estate.

Route Three – Separation

A court judgment of separation causes separate property to arise between the spouses – in the same way as divorce. After a separation judgment the spouses may divide the previously shared estate.

Separation does not dissolve the marriage – the spouses remain married and may not contract a new marriage. Where the separation is lifted, the statutory matrimonial property regime revives between the spouses – unless the court orders, at the parties’ joint request, that separate property be maintained.

Separation can be a good solution for spouses who wish to sort out their financial affairs but for various reasons do not wish or are unable to divorce.

Route Four – Division in the Divorce Judgment

Where the spouses decide to divorce, they may apply for division of the matrimonial estate within the divorce proceedings. The court may carry out the division in the divorce judgment – but only at one spouse’s request and only where doing so will not cause undue delay in the proceedings. In practice courts rarely decide to divide assets in the divorce judgment – particularly where the estate is complex or the parties are in dispute.

Separate Property by Operation of Law

In certain situations separate property arises automatically – without a court judgment or a property agreement. This occurs where one spouse is totally incapacitated or declared bankrupt. Where the incapacitation is lifted or the insolvency proceedings are concluded, the statutory matrimonial property regime revives between the spouses.

Separate Property With Equalisation of Gains

A matrimonial property agreement may also establish separate property with equalisation of gains – a particular property regime in which each spouse manages their own assets independently, but when the separate property comes to an end, the spouse with the smaller gain may seek equalisation from the other. The gain is the increase in the value of a spouse’s assets after the property agreement was entered into.

Practical Points

Where you need to sort out your financial affairs quickly, consider a property agreement as the fastest route – if your spouse is willing to sign. Where your spouse refuses and is squandering the assets, apply for judicial establishment of separate property, requesting a retrospective date. Where you are planning a divorce, consider whether you want to apply for division of assets within the divorce proceedings or prefer to deal with it separately afterwards. Document the composition and value of the assets – evidence is crucial in the event of a dispute.

Do you need help with division of assets or establishing separate property? Call: +48 531 335 713 or write to kancelaria@prawnikodrozwodu.pl

This article provides general legal information and does not replace individual legal advice in a specific case. Every family law matter requires analysis of the specific circumstances and documents. The law firm accepts no liability for actions taken on the basis of the information contained in this article. For legal advice tailored to your situation, please contact our law firm.

We invite you to contact the Family Law Practice: 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