Upon marriage, a statutory community of property is created between spouses by operation of law. It includes items acquired during the marriage by both spouses or by one of them (joint property). Items not covered by statutory community of property belong to the personal property of each spouse.
The joint property includes, among other things, the collected salary from work and income from other activities of each spouse, income from the joint property, as well as from the personal property of each spouse, as well as funds accumulated in the account of an open or employee pension fund of each spouse.
The division of property is not permissible during the course of statutory community, so it usually occurs only after the parties' marriage is legally dissolved by divorce. It is also possible for spouses to conclude an agreement, also during the marriage, to establish a property separation (and thus exclude the statutory community regime, which is in force by law) and make a division of property during the marriage.
2 Ways to divide assets:
- Conclusion of the agreement
- Legal proceedings
Proceedings before the court most often take place if there is a lack of agreement between the former spouses both on the components of the property, their value and how they are to be distributed between after the divorce. However, it is worth pointing out that the initiation of proceedings for the division of property before the court is also possible when the expectations of the spouses coincide. In such a situation, the legislator even makes certain concessions - the fee for an application for division of property accompanied by a draft settlement is PLN 300.00, as opposed to an application filed when there is no agreement - then the party initiating the proceedings must pay a fee of PLN 1,000.00.
If, due to disagreements with a former spouse, you decide to take the matter to court, you must expect that the proceedings, due to the need for evidence, may be time-consuming. This will be especially so when the joint property is substantial, consists of real estate, and the parties to the proceedings do not remain in agreement on the value of this property. Then it will be necessary to reach for an expert opinion, which can and usually is disputed. It is this aspect, related to the valuation of individual assets, that causes the greatest delay in the recognition of the case.
The court, in deciding the case, first determines what components are included in the joint property, and then, taking into account the position and arguments of each party, decides to entrust them to one of the spouses, with the obligation to repay the other.
If neither spouse wants individual assets to become his or her sole property, the court may also decide to sell them. However, this solution is disadvantageous in that the eventual sale is then carried out in accordance with the provisions of the Code of Civil Procedure on enforcement, which significantly affects the actual reduction in the value of the assets.
An alternative solution is to divide the assets in the form of an agreement between the spouses, assuming, of course, that with or without negotiation, their expectations are compatible.
If the property includes real estate, it will be necessary to conclude an agreement in the form of a notarial deed. Such a solution, although the fastest and most convenient, involves the payment of notarial fees.
Therefore, in the event that there is an agreement between the parties on how to divide the property, before making a decision, one should keep in mind the aspect related to the speed of settling the matter by concluding an agreement on the one hand, and on the other hand the lower cost, but longer wait for the division in court proceedings.
