Property separation at the request of the creditor


Claiming receivables from joint property

The Act of 17 June 2004 amending the Family and Guardianship Code and certain other acts introduced significant changes concerning the limitation of the possibility of satisfying the creditor from property rights and things that are part of the joint property of the debtor and his spouse.

The general rule is that in the case of a married debtor, whose spouse has not agreed to incur any obligation, the resulting debt can be satisfied only from the debtor's personal property, his remuneration for work, from the benefits obtained from his copyright and related rights. or in the event that the claim arose in connection with the enterprise run by the debtor - from the assets constituting the enterprise.

Is it possible to pursue satisfaction of claims from the property covered by the statutory matrimonial commonality?

You can often encounter a situation where, after obtaining a payment order against your debtor, the bailiff cannot enforce the repayment of the debt because the property to be enforced turns out to be insufficient or absent. In such a case, the creditor is not ultimately deprived of the possibility of effective enforcement if he has knowledge of valuable components of joint property, in particular real estate. However, in the course of the pending enforcement proceedings, it may happen that the debtor's spouse will raise a plea against the creditor, claiming that enforcement cannot be carried out due to the fact that the property which is to satisfy the debt is covered by the statutory marital commonality. In such a case, enforcement is impossible to continue, however, the creditor may take some steps to change the existing regime. Well, the first thing a creditor should do is obtain an enforcement clause against the debtor's spouse, and only then must apply for bailiff enforcement again (apply for the initiation of enforcement proceedings).

Property separation - does the creditor have the right to apply for it?

Separation of property is a situation in which, from the moment the contract is signed between the spouses, they do not have any joint property. In other words, each of them only has their own personal property. The condition for the effective establishment of property separation is:

  • informing the creditor about it,

  • the contract (intercourse) must be concluded before the claim arises.

Under the provisions of the family and guardianship code, the creditor is also the person entitled to bring an action for separation of property. The only condition that must be met by the creditor in this respect is that it is probable that the satisfaction of the claim stated by way of an enforceable title requires the division of the joint property of the spouses. In practice, such proving to be probable will not cause the creditor any problems, as the court suffices to have access to enforcement files, which clearly show that the enforcement against the debtor's assets turned out to be ineffective. One of the requirements is also to attach a marriage certificate to the statement of claim. In this case, it may be difficult to obtain it, especially when it is not known in which registry office to look for such documents.

Effects of establishing separation of property

Obtaining a favorable decision on the separation of property between the debtor and his spouse results in the fact that the debtor's share in the joint property will enter his personal property and from then on it will be possible to seize it by the bailiff and sell it in the course of enforcement proceedings.