Żądanie ustalenia nierównych udziałów w majątku wspólnym w postępowaniu o podział majątku wspólnego
The request to establish unequal shares in the joint property in the course of a procedure aiming at dividing the joint property of the spouses
Languages of publication
This paper deals with a procedure for establishing unequal shares in the joint property of the spouses following the liquidation of the joint property regime (Article 43 § 2 and 3 of the Polish Family and Guardianship Code). The most common way to pursue this claim is by means of court proceedings aiming at dividing the joint property of the spouses. Such claim is considered an accessory (i.e. additional, subsidiary) request in addition to the request for the division of the joint property. This paper presents, in the chronological order, the methods for pursuing such requests in the court proceedings. The views of the scholars as well as the case law of the Polish courts are also discussed. Particular attention is given to the doubts concerning the interpretation of the two grounds for determining unequal shares. The first one is the spouses’ contribution to the joint property, while the second one is the existence of a good reason clause. In the latter case, it is proposed that the “good reason” ground should be interpreted with the use of the concept of the so-called appraisal clause (or a comparative clause). The goal of the paper is to highlight the need for a thorough analysis of the rationale when deciding on the request to determine unequal shares.
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