Ta king on an obligation with the consent of the other spouse : (selected issues)

Under Article 41 § 1 of the Family and Guardianship Code, if one spouse takes on an obligation with the consent of the other spouse, the creditor may demand satisfaction also from the joint property of the spouses. According to the view almost unanimously accepted by legal scholars, this provision should be applied to obligations of one of the spouses irrespective whether the consent of the other spouse is required under Article 37 § 1 of the Family and Guardianship Code for the performance of the legal act. In this paper the Author focuses on situations where an obligation is contracted with the consent of the other spouse, however such consent was not required for performance of a legal act by one of the spouses. The Author analyses selected issues concerning that category of spouse's consent (the so-called facultative consent), such as the essence of such consent, its legal nature and the form in which the declaration of the spouse expressing such consent should be made. The Author also discusses the issue whether the facultative consent may be expressed not only before or simultaneously with taking on an obligation by one of the spouses, but also thereafter. Finally, the Author presents her opinion about the legal construction provided for by the legislator in Article 41 § 1 of the Family and Guardianship Code and formulates proposals de lege ferenda for one case when the spouse’s creditor is not protected by law in such extent as the creditor named in the above mentioned provision, i.e. the case where a spouse is encumbered with a duty of maintenance.