Forced separation of property between spouses: who and when can request its establishment?

Marital property regime: joint property and separation of property

Upon entering into marriage, a joint property regime arises by operation of law between you and your husband or wife. This means that alongside your personal property (covering what you accumulated before marriage), a joint marital property also comes into existence. Importantly, it does not absorb your existing personal assets. However, from the moment it arises, most assets acquired during the marriage will form part of the joint property.

Joint property is only one of the marital property regimes. Another is separation of property. You may establish it through a special agreement (a marital property agreement), either before marriage or during the marriage. In some cases, separation of property also arises by operation of law—for example, upon divorce or legal separation. There is also a third option: forced establishment of separation of property by a court.

What does forced separation of property consist of?

As the name suggests, forced separation of property means that the existing joint property regime comes to an end without the mutual consent of both spouses. It is enough for one of you to take the initiative and convince the court that important reasons exist. It may also happen that you do not wish to change the property regime, yet the court will do so at the request of a creditor.

What happens after separation of property is established?

From that point on, you have only personal property; there is no joint property anymore.
Each of you independently disposes of your own property (e.g., earned income).
Each of you is also independently liable for obligations incurred by you—this refers, of course, to obligations arising after the separation of property is established (for those incurred during the joint property regime, you remain jointly liable).

From the moment of marriage until the establishment of court-ordered separation of property, you may have accumulated joint property. This means that you may divide it—according to rules analogous to those applicable to the division of property after divorce or after the establishment of legal separation.

Who may request the court to establish separation of property?

The law allows separation of property to be established:

at the request of either spouse at any time during the marriage—for important reasons;
at the request of a creditor of one of the spouses—if the creditor makes it plausible that, in order to satisfy a claim confirmed by an enforceable title, it is necessary to divide the spouses’ joint property.

You may now be wondering what exactly is meant by “important reasons” for establishing separation of property. You may also be unsure what it means for a claim to be confirmed by an enforceable title. Let us take a closer look at these issues.

When may a spouse request the establishment of separation of property? Important reasons and the lawsuit

Introducing a separation of property regime by a court constitutes a serious interference in the spouses’ financial sphere. For this reason, the law stipulates that only for important reasons may either spouse request its establishment.

The concept of “important reasons” is not defined by statute. This means that, in determining what it entails, one must rely on court case law.

Courts assume that important reasons are circumstances under which the continuation of the joint property regime does not serve the interests of one spouse or even the interests of the entire family. Examples include:

squandering of property by one of the spouses;
addiction to gambling, alcohol, or drugs;
situations in which managing the joint property by both spouses (which should be their right) is impossible or at least significantly hindered—e.g., due to constant disputes between the spouses in this regard;
incurring debts that burden the joint property by one spouse;
retaining joint property exclusively for oneself;
long-term factual separation.

These are, of course, the most common—but not the only—situations in which a court may find that “important reasons” exist. However, whenever considering a request to establish separation of property, the court must examine whether the interests of a spouse or the entire family have indeed been violated.

To this end, it will assess the size of the joint property, the existence of debts and their scale, the size of the spouses’ personal property, issues relating to the maintenance and upbringing of children, as well as the circumstances under which any debts arose and the overall circumstances of the case.

For example, if a spouse does not contribute to the joint property or diminishes it due to inability to work or a serious, chronic illness, this will not constitute grounds for establishing separation of property. On the other hand, incurring certain debts may justify a court-ordered separation of property, but much depends on the circumstances of the case. Therefore, if you are wondering whether you may file such a request and whether your claim would be upheld, it is best to consult a law firm.

Forced separation at the initiative of a creditor

Pursuant to Article 52 of the Family and Guardianship Code, a creditor of one of the spouses may also request the establishment of forced separation of property. In this case, however, two requirements must be met:

the claim must be confirmed by an enforceable title;
it must be made plausible that dividing the joint property is necessary to satisfy that claim.

An enforceable title is an official document that entitles a creditor to conduct enforcement proceedings and bears an enforcement clause. Such a title may be, for example, a payment order with an enforcement clause.

The second issue is plausibility. Note that the provision does not require proof. It is sufficient for the creditor to show that it is probable that, through the establishment of separation of property, they will be able to recover the debt from the spouse-debtor. To this end, the creditor may, for example, present a written statement describing the circumstances of the claim and justify why, in their view, it would be more advantageous to seek satisfaction from the portion of the property that would be allocated to the spouse-debtor. Helpful evidence may include files from enforcement proceedings or information from a bailiff indicating that no assets of the spouse-debtor have been identified.

The date of establishment of separation of property. Separation with retroactive effect

Separation of property arises on the date specified in the judgment establishing it. This means that the court issuing such a judgment must determine the date from which the regime will apply. This is particularly important when one of the spouses has debts—then, from the moment separation is established, the creditor can no longer enforce claims against the personal property of the spouse who is not the debtor.

The date set by the court should not be earlier than the date on which the lawsuit was filed; however, in exceptional cases, the court may establish separation of property with retroactive effect. This is an exception to the rule and applies only in special circumstances.

A retroactive separation of property is ordered primarily when, for a long period, the spouses lived in so-called factual separation. During that time, they did not manage the joint property together, and for this reason it may be justified to determine that separation of property arose earlier than the date the lawsuit was filed.

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