Divorce and separation in Poland

Case law regarding the property consequences of divorce:

resolution of the Supreme Court of June 21, 2001.

(III CZP 16/01, OSNC 2002/1/4)

The final divorce decree may be the basis for the entry in the land and mortgage register of joint ownership in fractional parts in favor of former spouses.

Chairman of the Supreme Court Judge Stanisław Dąbrowski (rapporteur).

Judge SN Henryk Pietrzkowski, Judge SA Jan Kremer.

The Supreme Court in the case from the application of Krystyna G. and Sławomir G. for entry in the land and mortgage register, after a decision in the Civil Chamber at a public hearing on June 21, 2001, with the participation of prosecutor of the National Prosecutor's Office Iwona Kaszczyszyn, legal issue presented by the Regional Court in Lomza, by order of 27 February 2001:

"Is it necessary in the land and mortgage register proceedings to enter former spouses as co-owners in fractional shares with shares equal to filing as a basis for the entry next to a copy of the divorce decree also a copy of the decision or agreement on the distribution of the assets, or other document determining the size of shares of former spouses in the joint ownership of the property the form provided for in Article 31 of the Law on land and mortgage registers and mortgage? " adopted a resolution:

The final divorce decree may be the basis for the entry in the land and mortgage register of joint ownership in fractional parts in favor of former spouses.

The presented legal issue arose against the background of the following facts.

In the land and mortgage register kept for real estate situated in ZP, in the second section as co-owners, Krystyna and Tadeusz spouses are entered into by marriage. Their marriage was dissolved by divorce with the verdict of the District Court in Warsaw of November 18, 1999. After the verdict became final Krystyna G., who divorced the divorce without any division of the property, gave her the right to share in 1/2 part of the above real estate with son Sławomir G. Both parties to the donation agreement filed for inclusion in the land and mortgage register as a co-owner in the fractional part, Krystyna G.

District Court in Zambrów by decision of November 8, 2000 pursuant to art. 48 par. 2 of the Act of 6 July 1982 on land and mortgage registers (Journal of Laws No. 19 item 147 with amendments - hereinafter "ukwh") appointed Krystyna G. a seven-day deadline to remove an obstacle to the entry by submitting a copy of the court's decision division of the joint property of the applicant and Tadeusz G.

In the justification of the decision, the District Court stated that pursuant to art. 31 para. 2 u.k.w.h. the entry needed to remove the inconsistency between the contents of the land and mortgage register and the actual legal status may occur in the case of proving this by court order or other relevant documents. In the course of the land and mortgage register case, the court examines only the content and form of the attached documents, which must in an indisputable way testify to the existence of a certain legal status of the property.

In the opinion of the District Court, this requirement is not met by a divorce decree in a specific case. It only proves that the legal status resulting from the land and mortgage register is not consistent with reality, because the divorce has ceased as a result of divorce, which has transformed into co-ownership in fractional parts. Art. 43 k.r.o. creates only a presumption of equal shares of spouses in this property. However, a document confirming the conformity of this presumption with the actual legal status, indicating specifically the size of these shares, is indispensable.

Expressing the above view, the District Court referred to the decision of the Supreme Court of January 14, 1998, II CKN 177/97 (OSP 1998, No. 10, item 168). Recognizing the applicant's complaint against the decision of the District Court, the District Court took serious doubts as to the legal issue of the resolution quoted at the outset.

The Supreme Court weighed the following:

The long-standing practice established in the case-law allowed the entry in the land and mortgage register of co-ownership in fractional parts in favor of former spouses based on a valid divorce decree as a document confirming the end of the matrimonial property unity. The above practice was contested in the District Court's decision of the Supreme Court of 14 January 1998.

In this decision, the Supreme Court, first analyzing the provisions of art. 31 and 32 of the United States of America, indicated that the document being the basis for an entry in the land and mortgage register must be in writing and constitute evidence, as well as the existence of a legal status of the real estate that should be disclosed on its basis. Next, he stated that these requirements are not met by a judgment declaring divorce of spouses entered in the land and mortgage register as co-owners with statutory communal rights, because it does not result in the legal status of the real estate to be disclosed in the book, but only that the legal status resulting from it became inconsistent with the actual legal status regarding the end of statutory unity. This creates only the duty of the courtat the entry of an alert pursuant to art. 57 zl.w.h. and take steps to remove non-conformities. Admittedly, by way of an exception to that provided for in Article 31 para. 2 u.k.w.h. the principle that the entry may only be based on a document, this basis may be directly provided for by law, however, this is only if the provision states that the ex lege acquisition of the right subject to disclosure in the land and mortgage register does not require statutory certification of the acquisition. Meanwhile, the provision of art. 43 k.r.o. it creates only a presumption of equal shares, and not a certain legal status of the real estate.

Without questioning the principle of legalism as the basis for the system of entries in land and mortgage registers, the Supreme Court in the bench does not share the assessment of the consequences of the final divorce judgment made in the justification of the discussed decision of 14 January 1998.

The assertion that the legal status of the property does not arise out of the divorce decree is true in that the decision of the court is the dissolution of the marriage, but on the other hand, the direct result of that judgment is that resulting from art. 42 and art. 43 § 1 k.r.o. transformation of the legal situation of objects covered by hitherto bezudziałową property community, consisting in the fact that these objects become co-ownership of divorced spouses in equal parts of fractions.

Simplification is the thesis that the provision of art. 43 § 1 k.r.o. introduces only a presumption of equality of shares, leaving an uncertain legal state after the end of the commonality. The provisions of the Act indicate the existence of a presumption. For example, it is in art. 1025 § 2 k.c., which provides that it is presumed that the person who obtained the declaration of acquisition of inheritance is the heir. Meanwhile, art. 43 § 1 k.r.o. explicitly states that both spouses have equal shares in joint property. This means that the equity is equal under the law itself. The fact that in the cases specified in art. 43 § 2 k.r.o. the rights of the spouses may be a court judgment ex tunc differently shaped.

It is true that the possibility of court shaping of shares of former spouses in joint property weakens the certainty of the legal status under Article 43 § 1 k.r.o. the result of the divorce decree. However, this is not a sufficient argument to dismiss the divorce decree as a document that may be the basis for the entry in the land and mortgage register of the right of joint ownership for the benefit of divorced spouses.

Absolute legal certainty is often not achieved. Assuming that the basis for the entry may be only documents stating the legal status of the property in an absolutely certain manner, absurd results could be obtained. You could, for example, challenge the provisions on the acquisition of inheritance, because the shares, and even the heirs may change under the procedure of art. 679 kp.c. and demand that the heirs carry out the division of inheritance.

Assuming that the divorce decree introduces uncertainty as to the legal status of immovable property included in the marriage and the non-compliance with the current legal status, the justification of the decision of 14 January 1998 indicated the obligation of the perpetual court to take steps to remedy the non-compliance. Accepting this view, it would be necessary to recognize the inadmissibility of the former spouses' remaining in the indivisibility and the obligation of the perpetual court to urge them to leave indivisibility through fines (Article 35 paragraph 1 of the Law on Foreign Income). Excerpt from the provisions on the land and mortgage registers of the obligation to withdraw from indivisibility seems to be an unauthorized interference in property relations between former spouses. For these reasons, it is appropriate to return to practice, which was unchallenged before 1998. This practice, which assumes that a valid divorce decree may be the basis for entry in the land and mortgage register, does not jeopardize the rights of any former spouse or the safety of trading.

From the current family code of the resolution of the composition of seven judges of the Supreme Court of October 15, 1962, I CO 22/62 (OSNCP 1964, No. 1, item 2), entered in the book of legal principles, it appears that the sale by a former spouse after the end of the statutory community, it is ineffective as long as it violates the rights of the other spouse, resulting from the provisions on the division of the joint property of the spouses. For the ineffectiveness of such a regulation, it is irrelevant whether, at the time of the regulation in the land and mortgage register, the former spouses were as owners, on the basis of a statutory common law, or whether fractional shares had already been entered. The buyer of the share attributable to one of the spouses as a result of cessation of the community can not rely on the public faith guarantee of land and mortgage registers. Article 5 of the Land Registry and Mortgage Act protects the interests of a person concluding a contract with an unauthorized person, which is disclosed in the land and mortgage register. The purchaser of the share attributable to the former spouse enters into a contract with the authorized person, however, he should be aware of what also applies to further buyers that there is a possibilitypursuant to art. 43 § 2 k.r.o. the decision shaping the shares of former spouses differently than it results from the principle of equality defined in § 1 of this provision. Security of trading is sufficiently ensured by the fact that the divorce decree is described in the land and mortgage register as the basis for the entry. Ignorance of the content of art. 43 k.r.o. it is not protected.

For the above reasons, the Supreme Court ruled, as in the resolution.