About the necessity of reform of provisions regulating the matrimonial property regime

Streszcz. ang. s. 218-219

The paper analyzes the provisions pertaining to the matrimonial property relations in the Polish Family and Guardianship Code of 25 February 1964 (hereinafter referred to, after its Polish acronym, as "KR iO"), as amended by the Act of 17 July 2004. Several amendments introduced by the above-mentioned Act should be regarded as controversial, or in some instances, even as defective. Notwithstanding the introduction of a definition of the acts of the management of joint matrimonial property in Article 36 § 2 of KR iO, there continues to be a tendency in the legal literature to interpret this definition broadly. As defective should be considered the regulation that requires consent of the other spouse for the acquisition of property rights against consideration (Art. 37 § 1 points 1-3 of KR iO), the deprivation of the spouse who does not conduct professional or economic activity of the possibility to perform the management acts in relation to items used for carrying out such activities (Art. 36 § 3 of KR iO), as well as exclusion of liability with the joint matrimonial property as to all obligations not arising from acts in law (Art. 41 § 1 KR iO), including such obligations that result in the increase of the value of the joint matrimonial property and alimony liabilities. Moreover, the regulation of the matrimonial property relations adopted in the provisions of the KR iO results in their inconsistency with the provisions of the Polish Civil Code, what in some instances undermines the principle of the real performance of obligations. A spouse, who individually undertakes an act of management of joint matrimonial property, sometimes faces more restrictions with respect to effective performance of acts in law compared to a person who has no rights to items belonging to that property. For these very reasons, a new discussion should begin, both about the method of regulation of the acts of management of the joint matrimonial property, as well as the liability with such property for liabilities of one of the spouses.