Art. 361 of the Family and Guardianship Code introduces the institution of the spouse’s objection to the management of the joint property of the other spouse. Pursuant to § 1 of the provision, the spouse may oppose the activities of the management of the joint property intended by the other spouse, with the exception of activities in everyday matters or aimed at satisfying the family’s ordinary needs or undertaken as part of a gainful activity. In the further part of the provision, the legislator additionally emphasizes that the objection is effective against a third party, provided that it could become acquainted with it before making a legal act.
The legislator does not regulate sanctions for performing a legal act despite the objection raised. The literature agrees that in such a case it should be assumed that the legal act is absolutely invalid (Art. 58 § 1 of the Civil Code) as contrary to the act (B. Kubica [in:] Family and Guardianship Code. Comment, edited by M. Fras, M. Habdas, Warsaw 2021, article 36 (1).).
It is worth referring here to the judgment of the Court of Appeal in Katowice of February 20, 2009, I ACa 32/09, in which the adjudicating panel undertook a broader interpretation of the provision under analysis. Pursuant to SA’s thesis, the form of the spouse’s objection was not clearly defined by the legislator. Nevertheless, the will of the spouse should be clearly articulated, which means that it should be expressed in such a way that it could be read by the counterparty of the intended activity. The aim of the person who wants to oppose the act intended by the other spouse is therefore to take such actions to inform the third person about his position.
The attention of the doctrine often focuses on the relation of art. 361 and art. 37 k.r.o. Some authors indicate that the objection can be applied both in the situations indicated in Art. 37 k.r.o. as well as all the others (except those that have been explicitly excluded), while others argue that the objection does not apply to legal acts for which the obligatory consent of the spouse is required.
Finally, it should be noted that the meaning of the objection referred to in Art. 361 k.r.o. has relatively little practical significance. The objection may only be effectively applied to the intended activity and not to the one already performed. This means that the other spouse is really unable to raise an objection if he does not know about the plans to perform the action (which he can often find out only from the other spouse).