{"id":5048,"date":"2022-06-02T12:01:00","date_gmt":"2022-06-02T12:01:00","guid":{"rendered":"https:\/\/adwokat-witecka.pl\/?p=5048"},"modified":"2026-04-04T13:54:21","modified_gmt":"2026-04-04T13:54:21","slug":"rozdzielnosc-majatkowa-z-data-wsteczna","status":"publish","type":"post","link":"https:\/\/adwokat-witecka.pl\/en\/rozdzielnosc-majatkowa-z-data-wsteczna\/","title":{"rendered":"Retroactive separation of property"},"content":{"rendered":"

Today, I would like to address a topic that often arouses a lot of emotion and controversy -. retrospective separation of matrimonial property<\/strong>.
Whether you are in a relationship, about to get married or simply interested in legal and financial issues, this issue concerns us all.
I invite you to read on to explore this interesting topic and share your insights and experiences.<\/p>\n\n\n\n

Arrangement matrimonial community of property<\/strong>, the most common system of property relationships in the family, may have momentous consequences. According to the current Family and Guardianship Code, both spouses are obliged to contribute to the satisfaction of the family's needs. This obligation should, of course, be fulfilled according to their strength and their earning capacity and assets. If the spouses have not concluded a property agreement, they are subject to this property regime.<\/p>\n\n\n\n

We can easily imagine a situation where the situation of a marriage can deteriorate significantly. Whether as a result of a misguided investment, a bad business situation, addictions, etc., it is often only then that spouses consider separating assets or, as a last resort, think about divorce. It should be noted that the marriage contract, so-called prenup<\/strong> has effects only for the future and past effects cannot be covered. Once the property situation of the marriage has already deteriorated significantly this dissolution may no longer be sufficient.<\/p>\n\n\n\n

The solution may therefore be to establish retroactive separation of property<\/strong>. However, it is not possible to do this by contract. Only a court can declare a separation with past effect. To do so, one would have to apply to the court for such a separation and argue the reasons for the request.<\/p>\n\n\n\n

Retroactive separation of property is only possible under Article 53 of the Family Law Code. \u201ein exceptional cases\u201d<\/strong>. This is particularly possible when the spouses are living apart. Judicial case law emphasises that separation on a date earlier than the filing of the application is possible if, for the spouses \u201eit was already impossible on that date for them to cooperate in the management of the joint property.\u201d<\/em> (judgment of the Supreme Court of 11.12.2008, II CSK 371\/08, OSNC 2009). Furthermore, in a situation where it is possible to conduct enforcement from joint property, this may constitute a \u201ea valid reason for the liquidation of the community of property and the setting of an earlier date for its termination if it is in the best interests of the family or the other spouse\u201d.\u201d<\/em>. It is therefore possible to establish a retroactive property separation, \u201ewhen the best interests of the family warrant it, and in particular when the spouses have been separated in fact for a long time\u201d.\u201d<\/em> (Supreme Court Resolution of 9 June 1976, III CZP 46\/75, LEX No. 1966).<\/p>\n\n\n\n

However, the expression \u201ein exceptional cases\u201d is a general clause, giving discretion to the judge deciding the case. The circumstances indicated above are not the only grounds for the establishment of a retroactive separation of property<\/strong>. Thus, in a specific case, it has to be examined whether the conduct of the spouse or the relationship between them has made it impossible or highly difficult to carry out the day-to-day management of the joint property, whether, for example, the spouse, by squandering the joint property, makes it impossible to meet the needs of the family, or whether his or her attitude makes it impossible to take economic decisions that are important for the family. Squandering assets due to drunkenness and reckless incurring of debts have also been recognised as important reasons for the establishment of property separation in court rulings.<\/p>\n\n\n\n

If the prerequisites for divorce, i.e. the dissolution of the spouses' cohabitation, are present, it is also possible to make a retroactive property separation. It is even permissible in court jurisprudence to declare a property separation with retroactive effect already after the divorce judgment has been issued (Supreme Court judgment of 24.11.2017, I CSK 118\/17, LEX no. 2435663.).<\/p>\n\n\n\n

Of course, the court, when considering the demand for a property separation contained in the petition, will also take into account the legal interest of third parties (the spouse's creditor) who cannot be harmed by a retroactive property separation. The possibility of establishing a property separation may also be limited by the declaration of bankruptcy by one spouse. Pursuant to Article 125(2) of the Act of 28 February 2003 - Bankruptcy Law once bankruptcy has been declared, no separation of property may be established from a date earlier than the date of bankruptcy<\/strong>. The situation is analogous when restructuring proceedings are initiated (Article 74 of the Act of 15 May 2015 - Restructuring Law).<\/p>\n\n\n\n

In addition, within one year prior to the date of filing the bankruptcy petition, it is ineffective to establish property separation on the basis of a court decision, except when the petition to establish property separation was filed at least two years prior to the date of filing the bankruptcy petition (Article 121(1) of the Bankruptcy Law). In the case where the property separation was created by operation of law within one year prior to the date of filing the petition for bankruptcy as a result of divorce, separation or incapacitation of one of the spouses, the above-mentioned provision applies accordingly, and in addition, the divorced spouse is not entitled to bankruptcy. Furthermore, the divorced spouse of the bankrupt or the spouse of the bankrupt may, by way of action or plea, demand that the property separation be declared effective against the bankruptcy estate, if at the time when the property separation arose, he or she was not aware of the existence of grounds for declaring bankruptcy, and the creation of the property separation did not lead to harming creditors. An action in this respect is brought before the bankruptcy court, which may secure the action by prohibiting the sale or encumbrance of property that constituted the joint property of the spouses. (Article 123(3) of the Bankruptcy Law).<\/p>\n\n\n\n

This entry was written with the help of Adam Pelczar, a fourth-year law student at the University of Wroc\u0142aw.<\/p>\n\n\n\n

If you are struggling with a similar problem, contact me!<\/a> I will try to find a suitable solution to help you.<\/p>","protected":false},"excerpt":{"rendered":"

Dzisiaj chcia\u0142bym poruszy\u0107 temat, kt\u00f3ry cz\u0119sto budzi wiele emocji i kontrowersji – rozdzielno\u015b\u0107 maj\u0105tkowa ma\u0142\u017ce\u0144ska z dat\u0105 wsteczn\u0105.Niezale\u017cnie od tego, czy jeste\u015bcie w zwi\u0105zku, macie zamiar wst\u0105pi\u0107 w zwi\u0105zek ma\u0142\u017ce\u0144ski, czy te\u017c jeste\u015bcie po prostu zainteresowani zagadnieniami prawno-finansowymi, ta kwestia dotyczy nas wszystkich.Zapraszam Was do lektury, aby zg\u0142\u0119bi\u0107 ten interesuj\u0105cy temat i podzieli\u0107 si\u0119 swoimi spostrze\u017ceniami […]<\/p>\n","protected":false},"author":1,"featured_media":5058,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[40,43],"tags":[],"class_list":["post-5048","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-rozwod","category-tematy-prawne"],"_links":{"self":[{"href":"https:\/\/adwokat-witecka.pl\/en\/wp-json\/wp\/v2\/posts\/5048","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/adwokat-witecka.pl\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/adwokat-witecka.pl\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/adwokat-witecka.pl\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/adwokat-witecka.pl\/en\/wp-json\/wp\/v2\/comments?post=5048"}],"version-history":[{"count":1,"href":"https:\/\/adwokat-witecka.pl\/en\/wp-json\/wp\/v2\/posts\/5048\/revisions"}],"predecessor-version":[{"id":5066,"href":"https:\/\/adwokat-witecka.pl\/en\/wp-json\/wp\/v2\/posts\/5048\/revisions\/5066"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/adwokat-witecka.pl\/en\/wp-json\/wp\/v2\/media\/5058"}],"wp:attachment":[{"href":"https:\/\/adwokat-witecka.pl\/en\/wp-json\/wp\/v2\/media?parent=5048"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/adwokat-witecka.pl\/en\/wp-json\/wp\/v2\/categories?post=5048"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/adwokat-witecka.pl\/en\/wp-json\/wp\/v2\/tags?post=5048"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}