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Zbycie prawa własności mieszkania rodzinnego, będącego składnikiem majątku osobistego jednego z małżonków

100%
Szczekała A.
Rejent
|
2023
|
issue 12 (392)
36-61
EN
The study deals with the aspect of the so-called family-fortune dwelling (mieszkanie rodzinne), which is the object of a right vested exclusively in one spouse, extremely important in the light of the protection of interests of the spouse and the family. The legislature, in Article 281 of the Family and Guardianship Code (FGC), has explicitly granted a spouse the right to use the dwelling and household equipment which are the subject of a right vested exclusively in the other spouse, in order to meet the needs of the family. The spouse to whom the right of ownership of the family-fortune dwelling is vested may freely dispose of it, and the validity of the legal transaction made does not depend on the consent of the spouse who only has the right under Article 281 FGC. This raises the problem of effective protection of the interest of a spouse and family members against a disadvantageous disposal of the right to the family-fortune dwelling and, in particular, of the right of ownership vested in the other spouse. When looking for legal means of protecting the spouse, some scholars in the field allow for the possibility of assessing such a disposal through the prism of the clause of principles of social coexistence. However, neither the literature nor the judicature has considered the assessment of the disposal of the right to real property forming part of the personal property of one of the spouses in terms of its compliance with the social and economic purpose of this right. It should be noted that upon getting married, the socio-economic purpose of some of the spouses' personal assets, such as immovable property, may change if it is a family-fortune dwelling. The socio-economic purpose of such a property is to meet the housing needs not only of the spouse who is the exclusive owner of the dwelling, but also of the other spouse and other members of the so-called nuclear family. It seems therefore possible, in particularly justified cases, to assess the disposal by the spouse of an immovable asset forming part of his/her personal property, the so-called family-fortune dwelling, not only in the light of the principles of social coexistence, but also of the socio-economic purpose of that right.
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