The division of joint property is one of the most common issues that arises after a divorce or separation. Although the topic often stirs strong emotions, understanding it helps avoid disputes and speeds up the financial separation process. It is worth knowing exactly what is included in the joint property, when it can be divided, and how the division can be carried out.
What is marital joint property?
When does statutory community property arise
Upon entering into marriage, a so-called statutory marital community of property automatically arises between the spouses by operation of law. This means that all assets acquired after the wedding (e.g. salaries, savings, real estate) are jointly owned by both spouses.
The community of property lasts until it is terminated, for example through divorce, separation, or the signing of a prenuptial agreement. In practice, many people wonder when this joint property regime ends and what consequences it has for the future division of assets.
The legal basis for marital joint property and its division is set out in the Polish Family and Guardianship Code, particularly Articles 31–46. The key provision governing the division itself is Article 43, which states that, as a rule, spouses have equal shares in the joint property unless the court, for important reasons, decides otherwise and establishes unequal shares.
What is the difference between joint property and separate property?
If the spouses sign a marital property agreement (prenuptial agreement) before or during the marriage, they may establish separate property. In that case, each of them independently manages their income and acquired assets, and in the event of divorce, there is no division of joint property, since such property does not exist. It is worth understanding how a prenuptial agreement relates to the division of assets after divorce – that is, which assets remain personal and which may still be considered joint.
What is included in the joint property?
The joint property includes, among other things:
- remuneration for work and income from other gainful activities (e.g. from a sole proprietorship) of each spouse;
- income derived from the joint property as well as from the personal property of each spouse (e.g. rental income from an apartment belonging to one spouse’s personal assets);
- funds held in bank accounts;
- amounts of contributions recorded in the ZUS (Social Insurance Institution) sub-account.
What belongs to a spouse’s personal property?
Not every asset acquired during marriage becomes part of the joint property. According to Article 33 of the Polish Family and Guardianship Code (KRO), personal property consists of assets that remain the exclusive ownership of one spouse.
Personal property includes in particular:
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assets acquired before the marriage,
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assets and property rights acquired through inheritance or donation, unless the donor or testator decided otherwise,
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non-transferable rights that may belong only to one person (e.g. alimony, compensation for personal injury),
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items for personal use, such as clothing, symbolic jewelry, or everyday personal belongings,
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awards, distinctions, copyrights, and related property rights,
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claims and receivables arising from personal property, such as the repayment of a loan granted by one spouse before marriage,
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income derived from personal property, provided it has not been incorporated into the joint property through an agreement or joint investment.
Joint property vs. personal property – the differences
The fundamental difference between joint property and personal property lies in the source of a given asset and who holds ownership rights to it.
Joint property consists of assets acquired by the spouses during the marriage, mainly from their combined income. Examples include: an apartment purchased after the wedding, a car financed with one spouse’s salary, or savings accumulated in a joint bank account. Both spouses are co-owners of these assets, and their sale or encumbrance (e.g. with a mortgage) requires the consent of the other spouse. After divorce, joint property is subject to division.
Personal property, on the other hand, belongs exclusively to one spouse. It includes assets acquired before marriage or received through inheritance or donation. The spouse may manage and dispose of such property freely, without needing the consent of the other. After divorce, these assets are not divided — they remain with their owner.
In summary, joint property represents the shared assets accumulated by the spouses during the marriage (Articles 31–32 of the Family and Guardianship Code), whereas personal property refers to individually protected assets (Article 33 of the Code), which are excluded from the balance when dividing property after divorce.
How joint property can be divided?
Contractual division: before a notary or in writing
If the former spouses agree on how to divide their property, they may do so by means of an agreement. The safest form is a notarial deed. If the division includes real estate, a notarial form is mandatory.
When to choose a notary
This route is faster, less stressful, and helps avoid court costs. It is especially suitable when both parties can agree on the value and method of dividing the assets.
Mediation as a way to reach an agreement
A mediator can help the parties reach a compromise and prepare a draft settlement, which may then be approved by the court. This solution combines flexibility with legal certainty.
Step-by-step division of joint property – how does the court process work?
Filing an application for property division
The proceedings begin with submitting an application for the division of property to the district court. The application should include a detailed list of the assets and a proposed method of division.
Evidence proceedings and determination of the property composition
The court examines documents, expert opinions, and witness statements to determine the value of the property and what actually belongs to the joint estate.
Methods of property division (physical division, compensation, sale)
The court may:
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carry out a physical division of the property (e.g. assign a car to one spouse),
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assign assets to one party with an obligation to compensate the other,
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order the sale of assets and divide the proceeds.
Moment when joint property ceases to exist
The composition of the property is determined as of the date the joint property regime ends, not the date the application is filed. Therefore, even if one party sells an asset after the divorce, the court will take into account its value as of the day the community ceased.
Unequal shares in joint property
When can the court grant unequal shares
The general rule is an equal division of property (50/50). However, at the request of one party, the court may determine unequal shares if that party proves that the other contributed significantly less to the creation of the joint property (for example, by avoiding work or squandering financial resources).
How to prove different levels of contribution to the property
Evidence may include witness statements, documents confirming financial contributions, receipts, as well as proof of work involved in raising children and running the household.
Settlement of expenditures and expenses between joint and personal property
During property division after divorce, the question often arises of how to account for expenditures or investments made by one spouse in the other’s property, or vice versa. Under Article 45 of the Polish Family and Guardianship Code (KRO), a spouse may demand reimbursement of such expenditures.
What does reimbursement of expenditures mean
Expenditures refer to outlays that increased the value of the property — for example, renovation, modernization, or the purchase of equipment. The settlement involves determining whether the funds came from joint or personal property and for what purpose they were used.
Expenditures from joint property on personal property
If, for instance, the spouses used joint funds to renovate an apartment belonging solely to one of them (because it was inherited), during the division of assets, the other spouse may request reimbursement of half the value of the expenditure.
Example: The spouses jointly spent PLN 60,000 on renovating an apartment that the wife inherited. After the divorce, the husband has the right to demand PLN 30,000 as reimbursement for his share of the expenditure.
Expenditures from personal property on joint property
The opposite situation also creates a claim: if one spouse financed, for example, the purchase of household appliances or window replacement in a jointly owned house, that spouse may demand reimbursement of the amount spent from the joint property during its division.
When reimbursement is not allowed
Reimbursement cannot be claimed for ordinary living expenses such as bills, food, clothing, or daily needs of the children. The law treats these as part of the normal costs of family life.
In practice, the court examines whether the expenditure genuinely increased the value of the property, rather than being an ordinary maintenance cost. Therefore, it is advisable to keep receipts, invoices, and other documents proving the amount of expenditures made.
Practical steps and common mistakes
What documents are needed to carry out the division of property?
To effectively conduct the division of property, it is worth preparing complete documentation in advance to confirm the composition and value of the joint property.
In particular, the following documents will be useful::
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ownership deeds (e.g. notarial acts, property purchase agreements, vehicle registration certificates),
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\confirmations of bank account balances, deposits, and insurance policies,
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property valuations (e.g. expert appraisals, invoices for household appliances and electronics),
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documents confirming expenditures from personal property (e.g. invoices for renovations).
The more complete the documentation, the faster the court or notary will be able to finalize the settlement.
What to pay attention to during negotiations with your former spouse?
The most common mistakes made during discussions are emotional reactions and a lack of precision. It is important to focus on the value of the assets rather than sentimental attachment to individual items.
A good approach is to prepare a list of priorities — what is most important to you, and what you can give up. Remember that an amicable agreement (e.g. before a notary) is faster and cheaper than court proceedings.
When is it worth seeking help from a mediator or a lawyer?
A mediator is helpful when emotions make communication difficult but both parties still wish to avoid going to court. The mediator can help establish a mutually acceptable draft settlement, which can later be approved by the court.
A lawyer, on the other hand, is invaluable when doubts arise regarding the composition of the property, the value of certain assets, or the rules for reimbursement of expenditures. Professional support minimizes the risk of formal errors and helps protect your interests during negotiations.
Frequently Asked Questions
Can property be divided before divorce?
Yes, if the spouses establish separate property (for example, through a prenuptial agreement) and then carry out a contractual division of their assets.
How long does a court proceeding for property division take?
Depending on the level of dispute – from several months to even a few years. The duration depends on the number of assets involved, disagreements over their value, and the availability of expert appraisers.
Are the spouses’ debts also subject to division?
Generally not. Liability for debts depends on who incurred them and whether the other spouse consented to them.
How can a mortgage loan be divided after divorce?
A mortgage loan is not divided in the same way as property. The bank is not bound by a court ruling on property division, which means that after the divorce, both spouses remain jointly and severally liable for repayment of the debt.
In practice, three solutions are possible:
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transfer of the loan to one spouse (with the bank’s consent),
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sale of the property and repayment of the loan from the proceeds,
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refinancing the loan in the name of one borrower.
Each option requires the bank’s approval, which assesses the creditworthiness of the spouse assuming the obligation.
Does a business (sole proprietorship) form part of the joint property?
Yes, but only in respect of the assets acquired or financed from income belonging to the joint property. This means that the business as a whole is not divided; instead, its value is settled (e.g. equipment, fixed assets, accumulated funds). Income from business activities conducted by one spouse during the marriage forms part of the joint property. If the business was established before marriage, it remains part of that spouse’s personal property, unless it was later developed using joint funds.
Summary
A properly conducted division of property after divorce requires not only knowledge of the law but also experience in valuing assets.
Would you like to find out which solution would be most beneficial in your situation?
Schedule a short consultation– together, we will analyze the composition of your assets and determine the safest way to divide them.
