Abstrakt
Contracting marriage does not limit spouses in their capacity to take on obligations as regards the proportions of estate which belong to each of them individually (personal property). In order to perform an act in law with regard to the estate which belongs to both spouses (i.e. their joint property), one spouse requires the consent of the other spouse, under pain of invalidity of any act which is not authorised. According to the principles contained in the provisions of the Family and Guardianship Code in the wording effective as of 20 January 2005, satisfaction of an obligation contracted by one of the spouses out of their joint property is possible where the other spouse has expressed his/her consent to contract such an obligation or where the obligation is connected with the spouses? joint enterprise. Enforcement proceedings are carried out in order to enforce execution of the obligation which is incumbent on the debtor with statutory coercive measures referred to in the Procedural Law. The provisions concerned define the framework for observing the aforesaid principles as regards the spouses? responsibility to satisfy their joint or individual obligations with their joint property. In enforcement proceedings debtor is the person who, subject to the wording of the document which forms the basis of enforcement, is obliged to fulfil a certain material performance for the benefit of the creditor, and against whom such proceedings have been initiated. The document concerned usually involves a court order resolving a dispute between creditor and debtor as regards specific claim. Unless such an order states otherwise, it forms the basis for enforcement of the whole performance defined therein out
of the debtor?s total estate. However, enforcement of an obligation out of the spouses? joint property is possible, where both spouses have been named in the court order as debtors who are liable for performing the obligation concerned without limitation, or where the court order indicates one of the spouses as responsible for satisfying the obligation subject to its limitation to the spouses? joint property. The creditor of one of the spouses, who has not initiated court proceedings against both spouses and who has obtained a court order which orders material performance from the one debtor only, may then apply for a court order to have the obligation satisfied out of the spouses? joint property in enforcement proceedings which are initiated against both spouses. Before such an order is issued, the court considers only whether the debtor?s spouse has
expressed his/her consent for contracting the obligation concerned or whether the obligation is connected with the spouses? joint enterprise, and whether the debtor is still married. The debtor?s spouse who is responsible for satisfying an obligation out of the spouses? joint property, may in enforcement proceedings which are conducted against him/her as well use the same protective measures as his/her spouse who is the debtor in the obligation concerned. The spouse of a debtor against whom no former court proceedings have been carried out to adjudicate the performance concerned, and who has only been subject to simplified court proceedings in which the court ordered enforcement out of the spouses? joint property, may ? in the court proceedings which are a form of defence against enforcement ? invoke any circumstances indicative of non?existence of the obligation concerned. Hence, he/she may claim that the obligation concerned has not emerged, that there has been an occurrence which resulted in extinction of the obligation or that the obligation cannot be enforced. In court proceedings, the debtor?s spouse who is responsible for the obligation concerned only out of the spouses? joint property, may also claim that such objects or rights which are
items of his/her personal property are exempted from enforcement.