Matrimonial Property in Poland
| Date | 01 March 1963 |
| Author | Jan Górecki* |
| Published date | 01 March 1963 |
| DOI | http://doi.org/10.1111/j.1468-2230.1963.tb00705.x |
MATRIMONIAL PROPERTY
IN
POLAND
Social and Comparative Background-Rules-Evaluation
1.
SOME
GENERAL
REMARKS
Tm acceptance in principle of the rule of equality between husband
and wife is today beyond discussion in Western, as well as in
Eastern Europe. However, the draftsmen of statutes, and mainly
the draftsmen of statutes in the Western world, have been faced
with difficulties when trying to base family law upon this rule;
and difficulties emerge particularly in the matter of matrimonial
property.
The legislator who intends to codify questions of matrimonial
property, and especially to choose the statutory regime, meets
various patterns in contemporary legal systems. The two extremes
are full community and complete separation of property of husband
and wife. Between them there exist several kinds
of
limited
community, more
or
less
comprehensive
:
the community
of
acquests, of movables, of the matrimonial home and its contents,
and some other kinds of community confined to certain types
of
property. Among
all
these systems, the separation of property
has been frequently recommended in various countries, mainly by
the feminist movement of the nineteenth century, as a statutory
regime which
will
realise the principle of equality between the
spouses in the proper way.
In
fact, separation seems to deserve
this approval, when compared with some former systems
in
which
feudal influences prevailed. The common law is here a good
instance: under the common law marriage caused, generally
speaking, an assignment to the husband of the whole
of
the wife’s
property. Not having any rights subject to her management
or
disposition, she suffered
a
serious
loss
of civil status and was legally
dependent upon her husband. Compared with this dependency,
separation
of
property appears to be
a
considerable step forward.
It
enables the wife to preserve, to manage and to dispose of her
property, whether owned by her at the time of marriage
or
acquired later, and
so
it
puts the spouses, at least legally,
on
an equal footing. Moreover, it has some further merits:
it
makes
the matrimonial property easy to handle and avoids the intricacies
of the community systems.
However, in spite of all its advantages, separation of property
in fact encroaches upon the principle of equality in those numerous
cases in which one of the spouses, usually the husband, earns
an income through being employed, active
in
business
or
exercising
a profession, and the other one, usually the wife, is occupied
in
the household and brings up the children. The wife, even though
156
MAECE
1968 MATRIMONIAL PROPERTY IN POLAND
157
working
at
home
no
less hard than her husband as income earner,
does not participate in his gains either during the marriage,
or
after its termination.
As
was pointed out
by
those members of
the Morton Commission, who proposed the removal of separation
as the statutory regime from English law:
“
A
married woman
may spend years of her life looking after and improving the home.”
She may, on marriage, have to give up
“
her paid work in order
to devote herself to caring for her husband and children.”
Nevertheless “often the house and its furniture are the sole
property of the husband and he may dispose of them without
her consent
or
he may leave them by will to someone else.
. . .
It
is an unwarrantable hardship when
in
consequence she finds herself
in the end with nothing she can call her own.” Similar ideas
appeared in numerous decisions of English courts which, in cases
of separation (like
Rirnmer
v.
Rimmer
*)
or
divorce (like
Jones
v.
Maynard
a)
divide some assets in equal shares, without regard to
the strict rights of husband and wife
at
the end of consortium
or
marriage. This trend is especially evident concerning the matri-
monial home and its contents, because they are
‘‘
the material
substratum
of
the matrimonial consortium
”
and it would have
been particularly unrealistic and unjust to insist here
“
on an
uncompromising enforcement of the property norm between
husband and wife.”
These difficulties are unknown to the most comprehensive
of
community systems,
i.e.,
the full community and the community
of
acquests. The common property is,
at
the end
of
the regime,
divided between husband and wife usually in equal shares.
However, these rCgimes also encroach upon the principle of equality
of
the spouses, although for reasons different from the case of
separation, especially in countries where the economic system is
based on the existence of private investment property. Common
assets and particularly common investments, cannot, for practical
reasons, be administered jointly by both spouses
:
the joint adminis-
tration would be a frequent source of conflicts, undermining the
management of the common property and the marriage itself; as a
German writer has pointed out,
it
“
would jeopardise the assets of
the spouses
.
.
.,
produce quarrels and sometimes even lead to
divorce.” It seems that mainly for this reason, under those
West European and North American legislations which have
adopted community of property as the statutory regime, the
1
Report
of
Royal Commission
on
Marriage and Divorce (1956; Cmd. 9678). para.
2
rig531
1
Q.B.
63
(C.A.).
3
[1951] Ch. 572.
4
0.
Kahn-Freund,
”
Matrimonial Property
:
Some Recent Developments
”
(1959)
22
M.L.R.
241,
258.
5
0.
Kahn-Freund,
op.
&.,
p.
‘24
et
aeq.
6
F.
&fLbssSfdler,
“
Matrimonial
Property
L8W
in
Germany,”
in
Friedmann (ed.),
Matrimonial
Property
Law
(1955), p.
380.
652.
p.
177
et
seq.
To continue reading
Request your trial