Property regime of spouses of the same and different nationalities

Upon marriage, the prior personal and property situation of the spouses changes by operation of law. The basic property regime is the community of property regime, which arises between the spouses by operation of law.

However, the community of property regime is not the only property regime provided for in the code. Through a marital property agreement, spouses may extend or limit the statutory community, establish separate property regimes, or establish separate property regimes with equalization of assets. Except for certain exceptions, spouses have the freedom to choose the property regime, which arises even before the marriage is contracted.

The community of property includes property acquired during the marriage by both spouses or by one of them. The common property of the spouses primarily includes compensation for work and earnings from each spouse's gainful activity, as well as income from common property and personal property of the spouses. Of course, during the existence of the community of property regime, each spouse still retains their personal property. However, spouses may shape their property situation differently and extend or limit the statutory community or establish separate property regimes, and when one spouse opposes the changes, the other may demand the establishment of separate property by a court.

Spouses, when they do not wish to remain under the statutory regime, may enter into a marital property agreement, commonly known as a prenuptial agreement. A prenuptial agreement may be concluded by spouses during the marriage or before the marriage. In this respect, the principle of freedom of contracts applies, subject to the limitation that an agreement may be made to extend the statutory community, limit the statutory community, establish separate property regimes, or establish separate property regimes with equalization of assets. Other types of agreements are not permitted.

Each of the aforementioned agreements may be amended or terminated by the parties. Upon termination of the prenuptial agreement, the statutory regime generally applies between the spouses.

Extension of the statutory community. According to the commented provision, instead of the statutory regime, the parties may decide, among other things, to introduce an extended community regime, which means that property items that belong to the personal property of each spouse under the statutory regime may enter the common property (cf. Art. 33 item 1 of the Family and Guardianship Code). However, the extension cannot include items listed in Art. 49 § 1 of the Family and Guardianship Code.

Limitation of the statutory community means that property items that would have entered the common property under the statutory regime will not enter the common property.

It is also possible for the parties, by virtue of the prenuptial agreement, to establish a regime of full separation of property, in which case each spouse manages their property independently. If a prenuptial agreement is concluded before marriage, the statutory community will never arise.

Establishing separate property regimes with equalization of assets after its duration means that a spouse whose gains are smaller than the gains of the other spouse has the right to demand equalization of gains by demanding the equalization of the difference in the growth of the value of their property and the property of the other spouse after the conclusion of this agreement.

Importantly, for a marital agreement concluded by spouses or future spouses to be valid and have legal effects, it must be concluded in the form of a notarial deed. The same form is required for amending this agreement. This means that an informal agreement does not have any legal effects.

A marital property agreement is effective against third parties when its conclusion and nature were known to them before the existence of a legal relationship between the spouses or between one of them and the third party, from which the third party's claim arises. According to the Resolution of the Supreme Court of 16.11.2012, III CZP 60/12, the consequence of the lack of such knowledge is, concerning a particular person, the partial relative ineffectiveness of the marital property agreement, to the extent necessary to protect their interests.

Under Polish private international law, property relations between spouses may be subject to Polish law or the law of any other country. Spouses, or future spouses, in certain circumstances, may enter into a marital property agreement subject to foreign law - other than Polish law.

In the case where spouses come from different countries, they may subject their property relations to the law of the home country of one of them or the law of the country where one of them has their residence or habitual residence. The choice of law can also be made before the marriage. As a rule, the marital property agreement is subject to the law chosen by the parties. In the absence of a choice of law, the law applicable to personal and property relations between spouses at the time of conclusion of the agreement applies. When choosing the law for marital property relations or a marital property agreement, it is sufficient to observe the form provided for marital property agreements by the chosen law or the law of the country in which the choice of law was made.