Management of the Marital Community Property - Autonomy, Cooperation, and Consent
The legal framework governing the management of the marital community property under Polish law is based on two pillars: the internal duty of cooperation between spouses (Article 36 § 1 of the Polish Family and Guardianship Code Kodeks rodzinny i opiekuńczy, hereinafter KRO) and the external principle that each spouse may independently manage the common property (Article 36 § 2 KRO), subject to an enumerated list of exceptions requiring the consent of the other spouse.
Management of the marital community property encompasses legal acts, factual acts, and procedural actions relating to the assets comprising the community property, including acts of preservation. A doctrinal dispute exists as to whether the acquisition of assets into the community constitutes an act of management. However, functional and systemic interpretation, as well as Article 37 KRO, support an affirmative answer.
Article 36 § 3 KRO establishes an exclusive, independent right of management with respect to assets serving the professional or business activity of the spouse who uses them. This category must be construed narrowly, and remains subject to the restrictions under Article 37 KRO, which requires the consent of the other spouse for the following acts:
- any legal act resulting in the disposal, encumbrance, or acquisition for consideration of immovable property or perpetual usufruct, as well as the leasing or granting of use of such property;
- any legal act resulting in the disposal, encumbrance, or acquisition for consideration of a real right in a building or residential unit;
- any legal act resulting in the disposal, encumbrance, acquisition for consideration, or lease of an agricultural holding or an enterprise;
- donations made from the community property, with the exception of customary minor gifts.
The validity of a contract entered into by one spouse without the required consent of the other depends on the subsequent ratification by the non-consenting spouse.
The Family and Guardianship Code further provides protective instruments where one spouse acts disloyally or recklessly with respect to the community property.
These include:
(i) the right of the other spouse to object to a proposed act of management,
and
(ii) the possibility of a court depriving one spouse of the right to manage the community property independently.
Following the 2004 amendment, Article 41 KRO gained particular significance by distinguishing between two separate spheres that are often conflated in practice:
- Management of the community property i.e. the authority to perform legal and factual acts concerning the assets; and
- Liability of the community property towards third parties i.e. the possibility for a creditor to enforce against the community property.
The crucial point is that there is no automatic linkage between the two spheres: the fact that a spouse performed an act of management does not in itself establish liability of the entire community property for the resulting obligation.
For example:
- If a spouse acts as surety (poręczenie) under Article 876 of the Polish Civil Code (Kodeks cywilny), such act does not constitute management of the community property, but creates a personal obligation of that spouse.
- However, under Article 41 § 1 KRO, enforcement against the community property is only permissible if the other spouse consented to the incurrence of the obligation.
In practice, this means that a spouse who unilaterally incurs a debt (e.g., by signing a loan agreement or guaranteeing a third partys obligation) is personally liable with his or her separate property and, upon termination of the community, with his or her share of the community. The community property as a whole is subject to enforcement only if the other spouse provided explicit consent. Absent such consent, the creditor is limited to the debtors separate property and to income which, under Polish law, is included in the community property.
The case law of the Polish Supreme Court (Sąd Najwyższy) since 2004 has consistently emphasized this separation of competence and liability. It has been clarified that the unilateral legal act of one spouse does not automatically extend liability to the entire community; satisfaction of the statutory condition under Article 41 KRO is required.
Scholarly commentary (e.g. K. Pietrzykowski, Kodeks rodzinny i opiekuńczy. Komentarz, 9th ed., 2025) underscores that the legislators intent was to protect the non-acting spouse from financial consequences undertaken without his or her knowledge and consent. Consent under Article 41 KRO thus operates as a filter: the act may be valid, but its enforceability against the community property depends on consent.
For creditors, this distinction is critical: in enforcement proceedings they must demonstrate that such consent was granted in order to reach the community property (e.g. family home, joint bank accounts). Absent consent, enforcement is confined to the debtor spouses separate property and future share in the community.
With respect to procedural acts, each spouse may generally litigate independently in matters concerning community assets (e.g. vindicatory actions). However, if the result (e.g. a settlement or waiver) would entail consequences falling within Article 37 KRO, the consent of the other spouse or court authorization is required.
After the 2004 reform, the system of management of the marital community under Polish law can be described as a two-tier balance:
- Everyday level: each spouse may act independently, ensuring functionality and practicality in daily affairs (e.g. paying bills, household purchases, contracts for ordinary needs).
- Strategic level: enumerated acts of fundamental importance require joint decision-making to protect family interests and the stability of the property.
Scholars (e.g. J. Słyk, in: Kodeks rodzinny i opiekuńczy. Komentarz, 11th ed., 2024) emphasize that this structure represents a compromise between individual efficiency and family protection: it facilitates smooth economic dealings while preventing unilateral dismantling of the community property.
Practical implications under Polish law:
- For third parties: contractual counterparties should be aware that certain transactions exceed ordinary management and require consent under Article 37 KRO (or judicial authorization under Article 39 KRO). Without such consent, the transaction risks invalidity, jeopardizing legal certainty.
- For spouses internally: effective family compliance requires transparent communication and cooperation regarding community property. Recommended practices include mutual disclosure of significant obligations and investments, joint consultation on strategic matters, and alignment on long-term commitments (loans, leases, business investments).
Protective mechanisms for the cautious spouse include: (i) objection to an act exceeding ordinary management (Article 36¹ KRO), rendering the act ineffective against the objecting spouse; and (ii) application to the court to deprive the other spouse of independent management rights in cases of serious abuse or harm.
Thus, under Polish law, counterparties must exercise diligence in verifying spousal consent for strategic transactions, while spouses themselves should implement transparent decision-making processes. The statutory mechanisms of objection and deprivation of management strike a balance between the entrepreneurial freedom of one spouse and the preservation of family interests and stability of the community property.