The dissolution of a marriage by divorce means not only the end of the marriage itself, but also the termination of the marital community of property. Matters in this area are among the most common causes of court disputes—ranging from the value of real estate to small everyday items. Understanding the basics of property division in the context of marriage is a key issue that requires attention, especially in the case of a statutory marital property community.
A matrimonial property regime is the set of rules under which spouses manage their assets during the marriage. It determines what is joint and what remains separate, and how liability for debts is structured. Polish family law provides several regimes—each works differently and may be important in situations such as purchasing a home, running a business, or dividing property after the marriage ends.
Under the law, if spouses have not entered into a different marital property agreement, they are automatically subject to the statutory community of property. A key feature is that any assets held before the community of property arises remain part of the spouse’s separate (personal) property.
The statutory community of property applies by operation of law unless spouses decide to sign a prenuptial agreement (intercyza):
- Standard separation of property – each spouse manages their own property independently. Only separate property exists; nothing is joint by operation of law;
- Extended community – allows expanding the joint property to include certain assets that would otherwise be separate (see below). Note that even with an extension, not all assets can legally be included in joint property;
- Limited community – introduces separation of property with certain exclusions (e.g., excluding certain types of income);
- Separation with equalisation of accrued gains – spouses have separate property, and if the marriage ends, gains are equalised based on the increase in each spouse’s property value from the date of the agreement;
Alternatively, a mandatory separation of property may be established by a court at the request of one spouse or one spouse’s creditor. In the event of incapacitation, bankruptcy of one spouse, or legal separation, a mandatory regime arises by operation of law and lasts as long as the cause persists. It cannot be changed by a marital property agreement. The mandatory regime replaces the previously existing regime between the spouses.
Joint property includes what was acquired by both spouses or by one spouse during the marriage. It includes:
- assets (movable property and real estate) acquired during the marriage by both spouses or by one of them;
- collected remuneration for work and income from other gainful activity of each spouse;
- income from joint property as well as from each spouse’s separate property;
- funds accumulated in an open or employee pension fund account of each spouse;
- amounts of contributions recorded in a ZUS sub-account.
Separate property belongs exclusively to one spouse and is not subject to division. It includes:
- assets acquired before the statutory community arose—i.e., rights and items acquired before marriage or before an agreement abolishing separation of property during the marriage;
- assets acquired by inheritance, legacy, or gift, unless the testator or donor provides otherwise. In the case of everyday household items, it is presumed they were acquired by both spouses (joint property), unless the testator or donor expressly indicated that only one spouse may use them;
- property rights arising from a joint ownership regime governed by separate provisions;
- assets used exclusively to satisfy the personal needs of one spouse (e.g., clothing, cosmetics, specialist equipment);
- non-transferable rights that may belong only to one person (e.g., the right to a pension/annuity, the right to leave);
- compensation for bodily injury or health impairment, or damages for non-pecuniary harm (pain and suffering); this does not include an annuity due to loss of earning capacity or increased needs or reduced prospects for the future;
- claims for remuneration for work or other gainful activity of one spouse (e.g., a claim for unpaid salary). The funds received from salary, civil-law contracts, etc. then form part of joint property;
- assets obtained as a prize for the personal achievements of one spouse;
- copyrights and related rights, industrial property rights, and other creator’s rights;
- assets acquired in exchange for items forming part of separate property.
Due to the nature of the items below, a marital property agreement cannot extend the community to include:
- assets that will accrue to a spouse by inheritance, legacy, or gift (this protects the freedom of testation and disposal by the testator/donor, who may not know the beneficiary’s property regime was modified);
- property rights arising from a joint ownership regime governed by separate provisions;
- non-transferable rights that may belong only to one person;
- claims for compensation for bodily injury or health impairment (if they do not fall within the statutory community), as well as claims for damages for non-pecuniary harm;
- claims for remuneration for work or other gainful activity that are not yet due.
- After divorce – by far the most common solution,
- During divorce – if the parties agree and it will not prolong the divorce proceedings;
- After separation of property has been established (not necessarily due to divorce)—e.g., by agreement (prenuptial) or by court judgment.
Division of joint property is independent of divorce. It may take place during the proceedings and before the divorce, or long after the divorce is granted. A claim for division of property does not become time-barred. It may be done:
- By agreement – if the spouses are in agreement; in the case of real estate, a notarial deed is required,
- By settlement – concluded before a mediator;
- By court – when the parties cannot reach agreement; the court then decides who receives which assets and whether equalisation payments are due.
1. The first step is to determine the value of the assets, including real estate, cars, bank accounts, and other property;
2. Next, a motion should be prepared, listing the components of the property and proposing a method of division;
3. If the spouses seek division during the divorce proceedings, the motion should be filed with the regional court (sąd okręgowy) handling the divorce. If the matter is separate, the motion should be filed with the competent district court (sąd rejonowy)—typically the court for the location of the real estate or the place of residence of a participant;
4. The motion is subject to a court fee of PLN 1,000 (or PLN 300 if it includes a joint, agreed division plan). The fee may be paid to the court’s bank account (listed on the court’s website), at the court cashier’s office, or via the ePayments portal;
5. Hearing – the court then hears the parties. It may also appoint expert witnesses to value the assets if needed;
6. The case ends with a court decision setting the final division of property and any equalisation payments.
1. The first option is mediation, an alternative dispute resolution method. It can be used in the process of dividing property after divorce and typically involves lower costs. Mediation is an attempt to reach agreement with the help of a mediator, who is a neutral person facilitating communication between the parties. If the parties reach agreement, mediation ends with a settlement, which replaces the need for a notarial deed.
The court will refuse to approve a settlement concluded before a mediator (in whole or in part) if it is contrary to law or principles of social coexistence, aims to circumvent the law, is incomprehensible, or contains contradictions. Court review prevents settlements that would breach legal provisions.
2. If the spouses agree on the division, they can do so by preparing and signing an agreement. The agreement may take any form; however, if the joint property includes real estate or perpetual usufruct, a notarial deed is required. The property may be divided in full or in part. Spouses may allocate specific assets to each of them (which then become their sole property), sell assets and split the proceeds, or—quite commonly—allow one spouse to keep a specific asset while paying the other spouse their share of its value.
At the request of one spouse, it is possible to seek an unequal division of joint property reflecting that spouse’s contribution to maintaining or creating the assets. The court may award unequal shares in joint property when there are important reasons for doing so, such as a gross failure to contribute to the family’s needs, gambling, alcoholism, or drug addiction. The court then considers the degree to which each party contributed to the creation of the marital assets.
