In the judgment of May 29, 2023 (I ACa 42/22), the Court of Appeal in Kraków stated that in Art. 58 § 2 of the Family and Guardianship Code three types of decisions regarding a shared flat are provided for, namely: a ruling on the manner of using the flat for the duration of the joint residence of divorced spouses, a ruling on the eviction of one of these spouses, and a ruling on the division of the joint flat or on awarding it to one of the spouses. The first of these decisions is of a transitory nature, as it regulates housing relations temporarily, i.e. for the duration of the divorced spouses’ cohabitation, while further types of decisions are of a final nature, as is the division of the divorced spouses’ joint property. Moreover, the first of the discussed decisions comes into play when the court did not order the eviction of one of the spouses or did not divide the joint flat or did not award it to one of them. The scope of the court’s jurisdiction is also different when it comes to each of these decisions, because the court decides ex officio on the manner of using the shared apartment, on the eviction of one of the spouses at the request of the other spouse, and on the division of the shared apartment or on awarding it to one of the spouses. decides at the request of both spouses.
The Court of Appeal in Kraków recalled the guidelines of the judiciary and judicial practice in the scope of adjudicating in a divorce judgment on the joint apartment occupied by the spouses and the division of joint property (III CZP 30/77, OSN 1978, item 39). In this resolution, the Supreme Court stated, among other things, that „the decision on the manner of using a shared apartment during the period of joint residence there (…) of the spouses (Article 58 § 2, first sentence of the Family and Guardianship Code) covers basically every apartment occupied by them , i.e. an apartment that is actually at their disposal, regardless of the legal title held. (…). Moreover, the decision on how to use the apartment does not violate the rights of third parties, i.e. the owner of the building or apartment. It does not eliminate the right of ownership to the apartment. a spouse who acquired this apartment before entering into marriage and therefore constitutes the separate property of this spouse. (…) The decision on the manner of using the shared apartment during the period of residence in it (…) of the spouses usually involves the temporary separation of the spouses by assigning each of them a specific part of the common apartment for separate use. This ruling has consequences such as the division of things quo ad usum. If necessary, the court may also normalize the parties’ mutual relations during their joint residence by issuing appropriate orders and prohibitions.
In the present case, he granted the defendant the living room room he had requested for exclusive use with shared use of the other rooms on the ground floor. He also regulated the plaintiff’s exclusive use of the rooms on the first floor and made the remaining rooms in the parties’ house available for shared use. Allocating separate rooms for the exclusive use of spouses while they live together will isolate them to some extent. The court also ordered the plaintiff to give the defendant the keys to the house and the allocated premises within 14 days from the date of the judgment becoming final, because the defendant does not currently live there and does not even have the keys to the house. The court also regulated the manner of use by spouses of the above-mentioned. rooms. He prohibited the defendant from bringing people other than his biological children into the allocated rooms due to the intentions that the defendant wanted to achieve by moving into one room with his entire current informal family. In the light of the plaintiff’s attitude, past conflicts, and, above all, for the good of the parties’ minor child, the plaintiff’s living with people who were strangers to his minor son would be very destructive to the minor’s psyche. The defendant’s concubine has three children of her own, it is difficult to imagine their life in one room. This would lead to further numerous conflicts between the parties, and the task of the divorce court is to regulate the use of the shared apartment in such a way as to avoid such conflicts for the duration of the divorced spouses’ cohabitation in one apartment. The court assessed the defendant’s behavior very reprehensibly as, without the knowledge and consent of the remaining co-owner, i.e. his wife, he registered his concubine with her children in the apartment and then, together with her, started a quarrel in front of the plaintiff’s house, demanding to be let into the house. This fact already shows what the relationship would be between the plaintiff, the minor son of the parties, and the defendant’s concubine. Not only the parties’ son but also the concubine’s children would be exposed to such behavior, and it would also be contrary to the principles of social coexistence.