Many married couples choose to regulate their mutual property relations in a manner different from the community of property, which, in the absence of a contract to the contrary, is created between spouses by law at the time of marriage. One of the possible contractual property regimes is the so-called property separation regime. In this model, in contrast to the community property regime, each spouse is left with much greater economic freedom, which is conducive to, among other things, self-employment. The establishment of property separation also reduces the risk that if debts arise due to the failure of one spouse to run the business, the other spouse will also suffer.
In order to conclude an agreement establishing property separation, the consent of the parties expressed in the form of a notarial deed is necessary. It is worth remembering that this type of agreement written by spouses independently will be invalid.
In the case of contractual property separation, each partner retains the property acquired both before and after the agreement. In the regime of property separation, there is no joint property of the spouses. If the agreement is effective at the time of marriage, marital community of property does not arise at all. If the agreement is concluded during the marriage, the existing property regime ceases, and the parties are henceforth bound by the property separation. It should be remembered that an agreement establishing property separation does not have retroactive effects. Consequently, the drawing up of a so-called prenup (as the property separation agreement is commonly called) does not exclude joint liability of spouses for obligations incurred before the date of its signing. What is decisive here is the date of the notarial deed.
One of the most important legal consequences of entering into a property separation agreement is that each spouse can manage his or her property independently. The consent of the other spouse is not needed even to dispose of the apartment they share, if it is owned by only one of them. The same situation can apply, for example, to a car owned solely by either husband or wife. If the spouses under property separation have jointly acquired a certain thing or right, each of them may dispose of their share, expressed as a fractional part, without the need to obtain the consent of the other spouse, which is not possible if they remain in property community.
However, the system of property separation has certain disadvantages and its establishment may carry risks, so it is worth thinking carefully about the decision to sign such an agreement. After all, in the absence of a property balance between the spouses, such an agreement worsens the situation of the economically weaker party (for example, when only one spouse works and the other takes care of the house and raising children). Savings accumulated over the years, real estate acquired, or precious objects will constitute the personal property of only the spouse who formally acquired them. The unpleasant consequences of such a regulation of property relations will be felt especially in the situation of separation - because it may turn out that after many years of dedication to caring for loved ones, we will be left with nothing, and the only way to improve our financial situation will be the need to apply for alimony from the former spouse.
The decision on the choice of matrimonial property regime should be well thought out and adapted to our needs and those of our family. We should also remember that the chosen regime can be modified later and, for example, we can decide to introduce a separation only after years of marriage, or, on the contrary, we can turn off the separation established at the time of marriage and return to the community property regime.
