Remarks on filing a statement of claim jointly against debtor and his spouse and a position of a creditor of a married debtor

Streszcz. w j. ang. s. 23-24.

The article addresses several problems relating to the enforcement of claims by a creditor from the joint property of the debtor and his spouse. Pursuant to Article 41 § 1 of the Family and Guardianship Code, if a spouse takes on an obligation with the consent of his spouse, the creditor is entitled to demand satisfaction also from the joint property of the spouses. The first part of the paper discusses the problem whether it is possible to sue the debtor jointly with his spouse. Generally, it is sufficient for a creditor to sue only his debtor. In such a situation, a creditor is entitled to append the execution title issued against the debtor with the enforcement clause against the debtor's spouse. Such enforcement clause is issued in a separate, simplified proceedings. However, when the prerequisites for issuing such an enforcement clause against the debtor's spouse are not met, a question arises whether it is possible to sue also a debtor's spouse. The author analyses this problem and presents possible interpretation of Article 41 § 1 of the Family and Guardianship Code. A positive answer to the above question brings the author to the next issue, namely, how to formulate the request in the statement of claim against the debtor's spouse. The same question relates also to the wording of the judgment issued against both spouses. These problems are discussed in the second part of the article. The third part of the paper is devoted to the issue of obtaining injunctive relief on the joint property of the debtor and his spouse. In the next part the author analyses procedural issues concerning the proceedings on establishment of divisibility of the property between the spouses instituted by the creditor (Article 52 § 1a of the Family and Guardianship Code). The final part of the article deals with the consequences of declaration of bankruptcy of the married debtor.