Components of the Marital Community Property under Polish Law
Under Polish law, the determination of what constitutes marital community property begins with Article 31 § 1 of the Polish Family and Guardianship Code (Kodeks Rodzinny i Opiekuńczy, "KRO"). This provision establishes the principle that, as a general rule, all assets acquired during the statutory community of property (wspólność ustawowa) by either spouse or by both spouses jointly form part of the community property. This principle is subject only to the specific exceptions exhaustively enumerated in Article 33 KRO, which defines the scope of separate property (majątek osobisty).
The term "asset" (przedmiot majątkowy) is interpreted broadly under Polish law. It encompasses real rights, contractual (obligatory) rights such as receivables, possession, as well as expectancies (e.g., the expectancy of separate ownership of a cooperative apartment). The illustrative catalogue contained in Article 31 § 2 KRO is not exhaustive; community property also includes, for example, salaries, income from gainful activity and from assets, funds accumulated in open pension funds (OFE), on sub-accounts maintained by the Social Insurance Institution (ZUS), and in individual pension security accounts (OIPE).
The decisive criterion for classification is the moment of definitive acquisition, rather than the mere existence of a legal title that may lead to acquisition in the future. For instance, real property acquired by prescription (adverse possession) falls within the community property if the prescriptive period lapses during the subsistence of the statutory community, even where possession commenced earlier. Similarly, a claim under Article 231 of the Polish Civil Code (Kodeks Cywilny, "KC") arising from the construction of a building on another person's land is classified as community property if it matures during the statutory community. Later enforcement of such claims may, however, require settlements between the separate and community estates. The Polish Supreme Court has consistently held that both claims and expectancies may constitute components of the community property.
Polish law does not establish a legal presumption that every acquisition during marriage automatically falls into community property. However, evidentiary presumptions may be applied in practice. An entry in the land and mortgage register in the name of one spouse does not conclusively determine that the property belongs to his or her separate estate. Such entries may be challenged by way of an action under Article 10 of the Act on Land and Mortgage Registers and Mortgage (ustawa o księgach wieczystych i hipotece, "u.k.w.h."), which allows for reconciliation of the register with the actual legal status.
Income generated from separate property (net income) is generally included in the community property. By contrast, an appreciation in the underlying value of the separate asset itself does not qualify as income and therefore does not enter the community property—save for specific categories such as revenues, natural fruits, interest, or dividends.
The principle of substitution (surogacja), codified in Article 33 point 10 KRO, provides that assets acquired in exchange for components of the separate estate remain excluded from the community property, provided the exchange is functional and economic in character. In practice, disputes often arise in relation to transformations of cooperative housing rights (e.g., tenant's right → ownership right → separate ownership), or in cases where separate funds are invested into businesses, foreign currencies, or shares. In proceedings for the division of marital property, courts must carefully trace the source of funds and the flow of economic benefits.
As regards residential rights, Polish law establishes a joint and indivisible tenancy (wspólność przymusowa i łączna) under Article 680¹ KC, where a lease is concluded during marriage for the purpose of satisfying the housing needs of the family. This joint tenancy right continues even after the termination of the statutory community, creating a special legal regime with distinct consequences for entries in registers and potential eviction proceedings.
Bank accounts are another area of practical significance. The fact that an account is opened in the name of only one spouse does not, under Polish law, determine the classification of the funds held therein. The decisive factors are the source of the funds and the time of acquisition. In proceedings for division of community property, Polish courts may release banks from statutory banking secrecy in order to obtain the account history.
For practical purposes, spouses entering into significant transactions are advised to document clearly the source of funds (community or separate) and the moment of acquisition. Where financial streams are intermingled, it is prudent to keep detailed records of contributions, so as to facilitate later settlements.
In the event of disputes over whether a given asset forms part of the community property or the separate estate, Polish law provides for actions seeking declaratory relief or adjustment of the contents of the Land and Mortgage Register to reflect the actual legal status.