Property separation - a sign of distrust or caution?

When preparing for the wedding, the bride and groom make many decisions - they choose a wedding hall, an orchestra, invitations, a dress, a suit, they create a list of guests ... They spend a lot of time on the above, forgetting and sometimes deliberately avoiding the topic of finances in a planned marriage.

The topic of intercourse is not convenient. There are many stereotypes about her - she is perceived as an expression of lack of trust in her future spouse, as calling the other party a trickster. You often hear: "he / she has not married yet and is already thinking about divorce and that he / she would not have to share anything". Is there a grain of truth in stereotypes? What are the pros and cons of establishing a marital separation?

Separation of property consists in the fact that the spouses do not have any joint property - each of the spouses can dispose of their earnings independently, can take out loans without the consent of the other spouse, what each spouse acquired before and after marriage belongs exclusively to him.

The above, however, does not exclude the obligation of each spouse to contribute to satisfying the family's needs according to their strength and financial and financial capacity - it concerns funds for e.g. housing, utilities, meals, clothing, personal hygiene, funds for upbringing, children's education, health. Moreover, if one of the spouses does not fulfill his obligation to contribute to the satisfaction of the family's needs, the court may oblige the spouse to pay the other spouse the appropriate funds (often encountered regardless of the marriage regime). In the above situation, the court may even order that remuneration for work or other payments due to a spouse who does not want to participate in the costs of maintaining the family, be fully or partially paid to the other spouse (in practice, the latter, so far-reaching solution applies to mainly in the case of alcohol addiction of the obligated spouse or other situations in which his earnings are wasted ( T. Smyczyński , in: System PrPryw, vol. 11, 2014, p. 230, NB 40).

It is also important that both spouses, despite the fact that they have established separation of property, are jointly responsible for the obligations incurred by one of them in matters arising from satisfying the ordinary needs of the family (Article 30 of the Penal Code), i.e. for a loan taken to meet such needs. such as purchases of food and clothing items, small household appliances, gas and electricity charges, expenses for the repair and maintenance of household appliances and for treatment.

It should be pointed out that spouses who have concluded a marriage contract may acquire items and real estate together - these items simply do not belong to their joint property, and these spouses become co-owners of things.

In the event of the death of one of the spouses - contrary to common, erroneous opinions - the other spouse inherits him on the same terms as in the case of married couples who do not have a signed property separation agreement. The rules on inheritance may be changed in the same cases as when the marriage is governed by a matrimonial property regime (e.g. by means of a will).

The most important advantage of the separation of property is that the spouses are not responsible for the obligations of the other spouse (except for those described above) - but on the condition that the creditor knew that the marriage had a separation of property regime. The undoubted advantage is also that in the event of a divorce, the former spouses will not have problems related to the division of joint property - each of them "got rich" on their own account during the marriage.

On the other hand, the most common disadvantage of separation of property is that in the event of a divorce, the spouse who devoted himself to a greater extent to household duties and caring for children, at the same time was able to develop his career and increase his wealth to a lesser extent - this spouse will not be divorced in the event of a divorce. he could count on nothing more than what he earned (which does not exclude the possibility of claiming maintenance for himself). One solution to this problem is the possibility of concluding a property separation agreement with the equalization of achievements - this is a favorable version for the spouse who, for example, does not work professionally to look after the house and children. Property separation with equalization of assets differs from ordinary separation only from the termination of the marriage - that is, during the marriage, the spouses operate according to all the rules regarding the separation of property, and in the event of divorce, the spouse whose assets (increase in the value of property after the conclusion of a property agreement) is lower, may apply for equalization of achievements. If the spouses do not agree in the contract on the method of equalization of assets, the decision will be made by the court.

The disadvantage of separation of property is the inability to jointly settle with the Tax Office.

A property separation agreement may be concluded both before entering into marriage and during its duration. M Oźna at any time to modify or completely solve the system and introduce a statutory joint property. The agreement regarding the property regime must be concluded with a notary public (there is a possibility of establishing property separation in court).

Thus, the above indicates that the existence of property separation between spouses does not exclude the normal duties of each spouse to care - also in financial terms - for the needs of the family. Separation may also protect the spouses against unfavorable financial decisions of the other spouse and be an appropriate solution when the financial situation of one or both spouses is not clear. The subject of marital property separation certainly needs to be discussed before saying YES!

Author: attorney Justyna Plewińska

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