Common Marital Property after Divorce: How Is It Divided If Only One Spouse is Indicated in Register as Property Owner?

The issue of common marital property division always comes up in divorce proceedings before Polish courts. The problem might not be so intricate in case the parties have an agreement on common marital property division.

However, the issue is not so straightforward, when there is a dispute between former spouses on their property division. A vivid example of such a situation may arise when a house (a common immovable property) is acquired by spouses during their marriage and is financed from their common budget, but, at the same time, only one of the spouses is indicated as a property owner in the official Land and Mortgage Register of the state. A couple of question may arise in this respect. Will the mentioned property be considered as a common marital property? Does the spouse who is not indicated in the register have any rights on it after the official cessation of marriage? Is this spouse able to claim a compensation for his/her personal funds he or she has spent on the house?

Imagine the following situation: a foreigner married a Polish citizen. Later on they acquired a plot of land (using their common budget) on which they are going to build a new house. For formal reasons it was impossible at that time to indicate both spouses as owners of the property neither in the Land and Mortgage Register nor in the contract for the acquirement of the immovable property. Moreover, the foreigner spent quite a sufficient amount of his own funds on the renovation of the house. After the marriage broke down, this spouse intends at least to get back his/her money spent on the common property. Here comes a range of questions. Firstly, should such a house be considered as a common marital property? Secondly, can the spouse ask for compensation of his/her personal funds (for example, the sums that were acquired as the result of selling his/her own property) which were spent on rebuilding or renovating the house?

The answer to the first question stems from the wording of article 31 of the Polish Family and Guardianship Code. In accordance with the mentioned article, all the property acquired by spouses during their marriage is, as a rule, considered to be their common marital property. In our case, the plot of land, on which the house had been built, was acquired at the time when both parties were married. Therefore, the property is still by default regarded as their common marital one despite the information in the Register. It means that the mentioned property is to be divided into two parts after divorce in accordance with the general rule enshrined in the Polish Family and Guardianship Code.

Seemingly, a former spouse might claim compensation for costs incurred from his/her personal funds on the common property. In this case the fact that the money spent is not a part of common marital property must be proved. For example, you may provide documents demonstrating that you sold your house which was bought prior to your marriage and then used the acquired sum for renovating the house which belongs to you and your spouse.

It goes without saying, that the issue of common property division might be extremely complicated and perplexing. In some cases it might be challenging to prove the fact that the renovation of property was financed from a personal budget of one of the spouses. In other cases there might be the need to prevent another spouse from abusing his or her right to use the common property. In such cases the participation of a professional lawyer is indispensable.