Actio pauliana against legal actions decreasing the joint property of spouses

Streszcz. w j. ang. s. 103-104

The article deals with the issue of protection of the creditor of the spouse against fraudulent conveyances made by the spouses. The first part of the paper discusses the problem of challenging the legal actions decreasing the conjugal joint property taken by the spouse who is not the debtor. Generally, each spouse is free to manage the joint property of spouses (Article 36 para. 2 of the Family and Guardianship Code), whereas actio pauliana is a protection measure against the debtor's acts made with the intent to avoid satisfying the creditor. Specific problems arise therefore, when the fraudulent conveyance decreasing the joint property of spouses is made by the spouse who is not the debtor. The author analyses the measures available to the creditor in situations when the non-debtor's fraudulent conveyance requires the other spouse's (debtor's) mandatory consent (Article 37 of the Family and Guardianship Code), as well as cases, when the non-debtor's fraudulent conveyance does not require such a consent. The second part of the paper consists of the analysis of the protection of obligations that can be satisfy only from specific items of the joint property of spouses (Article 41 para. 2-3 of the Family and Guardianship Code) in cases when the subject of the fraudulent transfer was an item of joint property of spouses, which the creditor may not demand satisfaction from. The paper aims to answer the question of whether such a transfer is capable to defraud the creditor and how should the creditor proceed in order to obtain satisfaction from the joint property of the spouses in such cases.