Uwagi do projektu ustawy o zmianie ustawy - kodeks rodzinny i opiekuńczy
Observations on the bill amending the Family and Guardianship Code

Summary/Abstract: The bill under discussion adapts the provisions of the Family and Guardianship Code to the needs of the free market economy. In particular, it significantly reduces the disadvantages of the joint acquisitions regime, which is still intended to be a statutory regime under the bill.The retention of joint property as a statutory regime should be judged as accurate. For this regime has become well inscribed in the 'consciousness of Polish society'. It is widely perceived to be a guarantor of the preservation of the rights of the woman, who, often occupied with raising children and running the home, does not have the opportunity to carry out active professional activities. The proposed amendments seek to reconcile the interests of the family, on the one hand, and those of creditors owed by a spouse or spouses conducting a business, on the other.The terminological changes (such as the replacement of the term 'separate property' with 'personal property') as well as a more precise definition of the components of joint and personal property, are to be commended. In particular, the introduction of the principle of absolute surrogacy will contribute to a greater clarity as to the composition of joint property and personal property of the spousesThere is no doubt as to the catalogue of legal acts for which the consent of the other spouse is required (Article 37 § 1 of the bill). Likewise, the extension of the scope of matrimonial property contracts to include an agreement introducing a system of property separation with settlement of the acquired property, i.e. a system of division of the acquired property. The amendment according to which the liability of one spouse from the joint property has been extended in the event that he or she agrees to a commitment by the other spouse is considered to be in line with the needs of the market economy.However, some doubts may be raised about specific solutions. Thus, for example, the definition of 'property rights resulting from joint property governed by separate regulations' (Article 33(3) of the bill) as elements of separate property may give rise to many interpretation problems, as it is impossible to include, for example, all the rights related to partnerships as separate property. A partner may be entitled to already matured claims of the partnership, which belong to the joint property under the Family and Guardianship Code. In addition, it would seem that, in the exemplary listing of joint property, the term ‘income from other gainful activity of each spouse’ should be replaced by ‘income from other economic activity of each spouse’. It is appropriate to introduce a provision that answers the question of which regime should apply to the spouses after the separation. Finally, the advisability of introducing court registers, as in e.g. Germany, which would contain information on the property relations of the spouses, requires further discussion. The existing solution adopted in the National Court Register Act only covers only spouses being entrepreneurs and must be considered insufficient. It is also worth considering the reinstatement of the deleted Article 44 of the Family and Guardianship Code, according to which one spouse was also liable for the obligations of the other spouse after the cessation of community. Such a solution seems necessary in the case of a non-debtor spouse benefiting from joint assets.

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