Orzekanie w sprawach o ustanowienie rozdzielności majątkowej między małżonkami

Abstract

This paper concerns the problem of establishment of mandatory regime of separation of property by a court – both upon request of one of the spouses and upon request of a spouse’s creditor. The first part of the article contains an analysis of the current legal regulations. Legal literature and case law are discussed with regard to interpretation of the statutory reasons for establishment of the regime of separation of property by the court. Moreover, the author critically analyses the possibility of establishing the regime of separation of property upon a creditor’s request, which possibility was introduced into the laws regulating marital property systems, and reconstructs, among other things, the original motives of this amendment. The second part is a report on a survey of case files conducted by the author on a sample of 195 case files concerning the establishment of the regime of separation. The survey permitted the author to evaluate the practice of the administration of justice in this regard and to formulate conclusions. In particular, attention is drawn to a considerable number of non-litigious court cases, where evidentiary proceedings were much reduced and whose course differed from the model assumed in the statutory law.