Problem dopuszczalności powstania spółki cywilnej między małżonkami
The issue of eligibility to form a civil partnership between spouses

Summary/Abstract: There appears to be no impediment to qualifying the partnership agreement as a contract that is the source of the spouses' property relationships which are not subject to the matrimonial property regime.The civil partnership agreement between the spouses does not appear to lead to a change in the property regime adopted by them.The conclusion of a marriage by the partners of a civil partnership does not lead ex lege to the regulation of their matrimonial property relations by the partnership agreement. If such partners have not signed a prenup, their property relations will be governed by the system of statutory community upon marriage. Likewise, a civil partnership of spouses will not include their respective acquisitions. On the contrary, it is the company's profits that will be able to be considered as acquisitions within the meaning of Article 32 of the Family and Guardianship Code and become part of the community of origin.The effect of the spouses entering into a civil partnership agreement is to change the individual assets of the spouses. Thus, for example, the effect of a spouse-partner's contribution to a company by way of contribution of the ownership right to real estate which belongs to the spouse's individual property will be the transfer of the ownership right from the separate property to the company's property. The equivalent of this right will be the corporate-bonding rights associated with company membership. Such changes in the spouses' assets are a common phenomenon, resulting from the spouses' participation in civil law transactions.The memorandum of association gives rise to a partnership relationship, which is a property relationship that is not subject to the regime of any property regime. The possibility to conclude a partnership agreement results expressis verbis from the principle of freedom of contract expressed in Article 3531 of the Civil Code.Partnership corporate powers will belong to the contributor spouse's separate property. This will be the case even if the spouses wish to maximise the joint property by means of an agreement. Indeed, pursuant to Article 49 § 1 of the Civil Code, the scope of joint property may not be contractually enlarged to include, inter alia, non-transferable rights, and such is the nature of corporate rights, as has already been demonstrated.In a civil partnership between spouses, the spouses, due to the fact that they are at the same time partners, can control each other's use of funds from joint or separate property, which have been contributed to the partnership. This is an undoubted advantage that may induce spouses to enter into a civil partnership between themselves.Similarly, so-called 'general' partnership rights will apply to the separate property. Only the receivables already due and payable in connection with the operation of the company will become part of the joint assets.

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