1. society
2. social institution
3. divorce

CHAPTER 10
REVISIONS OF FAMILY LAW IN POLAND AFTER 1989
WITH PARTICULAR FOCUS ON PROPERTY RELATIONS
BETWEEN SPOUSES
Dr Piotr Fiedorczyk
University of Białystok
Poland
1. The state of civil law inherited from the past political system is still
characterized by the existence of two parallel codes from 1964—the Civil
Code, as well as the Family and Guardianship Code. This solution, in which
family law is separate from civil law, was the result of the impact of the
Soviet legal doctrine which, in the communist times, indicated the path of
development for the entire legal system. 1 It is only obvious to say that Soviet influence was not limited to the formal shape of law but it extended to
the solutions of merits. An example of such impact in the area of family law
is, inter alia, the law-based system of marital joint property regime in existence in all countries of the Eastern Block. The present text focuses on the
developments in the system upon the democratic breakthrough, taking into
consideration the broader context of family law transformations in this period.
Polish Family and Guardianship Code after 1989 did not require speedy
amendments, as was the need in case of the Civil Code. 2 The reason for the
situation was such that the code had not included any regulations which
would explicitly express the communist ideology obligatory thus far, as the
publication had no general introduction part, typical of modern codes, which
was the usual place for the inclusion of such expressions. It should also be
noted that the two main principles of family law, which are the basis for
code regulations, i.e. the good of the child and the equal rights of women in
a family—were in line with the general direction of the development of
family law in democratic Europe. 3 Despite the fact that in the early 1990’s a
postulate of fast recodification of family law emerged, which would be
based on including this area into the civil code, this opinion was rather isolated. 4 The prevailing position has been to the contrary—amendments to
family law should be proceeded with slowly, partially and only as a final
resort, i.e. only when there is no possibility of achieving positive results by
means of changes in the jurisprudence. Such a view impacts the development of Polish family law which, also due to sluggish introduction of solutions stemming from European law, is becoming even more conservative in
comparison to other systems.
The opinion presented above does not mean, however, that the scope of
changes in Polish family law is small. On the contrary, at least three out of
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nine amendments to the Family Code after 1989 are of fundamental significance. It should also be mentioned that before 1989 the Code had been
revised only twice (a particularly important amendment was introduced in
1975).
When revising civil law (family law included), an important role is
played by the Civil Law Codification Commission functioning at the Ministry of Justice since 1996. The Commission is headed by Prof. Zbgniew
Radwański and the body itself includes a working team on family law. The
composition of the team is subject to frequent rotations. 5 In reforming civil
law the Commission functions as the initiator by developing draft legislative
amendments. Among the nine amendments to the Family Code the three
most important ones were put forward by the Commission and only in one
case was the Commission’s proposal significantly changed by the Parliament; all other ones were adopted in a shape very similar to the original
form proposed by the Commission. 6
The aim of the first two revisions of the Family Code after 1989 was
first of all to adapt Polish family law to all the international conventions
ratified by Poland. The most important of these was the Convention on the
Rights of the Child, 7 adopted by the General Assembly of the United Nations in 1989, which determined, among other issues, the rules for foreign
adoption. In this context a provision of particular importance is the new art.
1142 of the code which permits foreign adoption if this is the only way to
provide the adoptee with a proper surrogate family environment.
A very important revision took place in 1998, with an amendment to the
provisions stipulating the forms of entering marriage, 8 which was related to
the ratification of the concordat with the Holy See. The amendment introduced an optional form of concluding marriage, which allowed the couple to
choose between a civil and canonical marriage (the so called concordat
marriage). 9 A canonical marriage now leads to civil legal consequences,
without the need for a separate civil marriage. It should also be noted that
the denominational form of marriage leading to civil legal results is not
limited to the Catholic church but can also take place in the case of other
denominations: Orthodox, Protestant (Auxburg Evangelical and Reformed
Evangelical), Methodist, as well as in case of Adventists of the Seventh
Day. 10 The introduction of this regulation was a response to the expectations
voiced by the majority of the society however it should be stressed that this
solution can lead to certain problems in its application in practice.
Postulates of the religious part of society led to yet another revision in
1999. 11 The new amendment was related to the institution of separation of
spouses. In light of the new provisions added to the Code, spouses can file
for separation despite there being satisfied conditions for divorce. It should
be noted that the formulation of regulations reveals a restorative form of
separation, which means that the spouses are free to resume cohabitation at
any time. The introduction of this institution to the Code was highly desired
as it makes it easier for the separated spouses to function in the society—
e.g. in case of accepting different liabilities, starting up own business—due
to the fact that the decision on separation issued by the court revokes the
joint property between them. One could consider, however, whether from
the point of view of the interest of the state it is justified to provide for marriages which are actually nonexistent.
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The fact that there was no optional form of entering a marriage and no
institution of a legal separation was seen in the circumstances of Polish
reality as a means of repression of the Catholic Church, 12 hence the restitution of these provisions was met with great social approval and was positively assessed by legal sciences. 13 One other amendment should be taken
note of—the so called “small revision” of the Code of 2000. It was aimed at
creating a legal basis for the support of the natural family of a child who had
been placed with a foster family or referred to an instructional and educational institution, hence improving the chance for the child’s speedy return
to his/her natural parents. Furthermore, the revision made it possible to
accelerate the process of adoption in case of pathologies present in the natural family. Remaining changes (with the exception of the most recent one which will be subject to a more meticulous elaboration) do not make that
big a difference in the everyday functioning of the society.
2. The provisions on marital joint property thus far, typical for socialist
countries, were justified by the specific character of the economic system.
“The application of the model of marital property relations, common to all
states of real socialism, was rationally justified by the structure of Polish
society then. The reason was that the system of gained property of spouses
was in adamant protection of the wife (and, indirectly, the child), while its
downsides did not play that big a role in the state, the citizens of which had
the role of consumers and not business entities”, says a distinguished expert
of the topic. 14 It should be underlined, however, that even in the conditions
of the old economic system there did appear certain issues of interpretation,
particularly in relation to the management of joint property, especially in
cases exceeding the so called ordinary (common) management. In the conditions of market economy the ambiguities in the form of property relations
were made even more visible and, for example, manifested themselves in
the practice of concluding prenuptial property agreements by spouses with
the exclusion of statutory joint property. The binding character of these
agreements in respect to third persons is, however, limited. Another phenomenon that gained popularity was the practice to revoke the statutory joint
property of spouses by means of a court decision with a past date. Spouses
who had a joint business often resorted to this measure so as to avoid liability to creditors in terms of the more valuable components of the property.
Such a situation could be aggrieving to creditors. 15
The phenomena presented above clearly proved the need to revise the
Code, hence the amendments to marital resolutions on property regimes was
seen as a priority for the Codification Commission from the very start. 16
Works on the draft were started in 1997, however were not carried out continuously as the Commission had to focus on the provisions related to the
concordat and the institution of separation. The final draft (consulted first
with the legal community) reached the Sejm, i.e. the lower chamber of the
Polish parliament, in 2003 and, having been adopted by the MPs almost
unanimously, 17 entered into force in January 2005.
In light of the amendments introduced, the new regulations pertaining
to property relations were incorporated in chapter III of title I of the Code—
under a changed heading: “Marital property regimes” (art. 31-54). The new
title accentuates the introduction of a pluralism in marital property regimes.
The chapter includes provisions standardizing the statutory regime, three
contractual regimes: joint property, regime of separate estates in matrimony,
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and the new type called regime of separate estates in matrimony with the
leveling of gained property. The last three articles regulate the compulsory
property regime. The regime stipulated in the Code will be subject to further
deliberation later on in this article, when new regulations are presented.
3. The basic problem related to the revision performed was the choice
of the appropriate statutory property regime. It is a known fact that even in
the well developed societies, the number of marital contracts is lower than
the number of marriages which apply provisions of the law. Advocates of
the joint property regime—regardless of the time and place or the conditions
of the system—have raised that such type of system is most compliant with
the notion of marriage as a strict personal and property union. Opponents of
the regime, on the other hand, point to the conflicts that such a solution can
evoke—e.g. in relation to the management of joint property, as well as with
respect to the liability of spouses for debts. This does not change the fact,
however, that joint property regime is the statutory one (and in some cases
has been so for a very long time) in many of the developed European countries (France, Italy, the Netherlands). Functioning in the conditions of a
market economy, it neither weakens the confidence and speed of commercial dealings, nor does it limit private autonomy and the freedom of activity
of the spouses, particularly in the sphere of economy. 18 It should also be
mentioned that standards of European law do not restrict the choice of marital property regime. In the course of the works of the Commission some of
the members opted for amending the statutory regime by replacing it with a
system of separate estates in matrimony with a calculation and leveling of
gained property. 19 Such a system had been functioning in Poland until 1950.
It should also be stressed that the system of separate estates in matrimony
had had a long standing tradition in Poland, reaching back to the times from
before the partitions. It had been rooted in Polish territories by means of the
ABGB, BGB provisions, as well as the Set of Laws of the Russian Empire
(Svod Zakonov). 20 In the end, however, the opinion that prevailed was such
that the experience stemming from the practical application of the statutory
joint property model presently functioning did not provide sufficient arguments for the withdrawal of the current solution. It has been decided that in
order to secure the due interests of spouses in the new social and economic
circumstances, amending the statutory regime is not indispensable, as it
would mean a revolution of a sort in the sphere of property relations, not
only for the future but also with regard to the marriages already in existence. 21 The present statutory marital regime was therefore maintained,
having modified it pursuant to the following assumptions. Firstly, joint
marital property should not lead to excessive limitation of personal and
property freedom of spouses, nor should it hinder the speed of commercial
transactions and weaken their confidence. Furthermore, new solutions are to
guarantee a balance between the interests of the spouses, family, as well as
third parties having legal relations with the spouses. Finally, the amended
regulations in the field of joint property management are based on the assumption that spouses perform their duties in a proper and accommodating
manner and not—as was the case before the revision—on the assumption of
a possible conflict of interests between them. 22
Pursuant to the assumptions above, the legislator has made a distinction
between two types of property: joint property of spouses (before: gained
property) and personal property (before: separate) of each of the spouses.
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The catalogue of the components of joint property has remained relatively
unchanged (with the addition of funds saved on pension fund accounts), but
an important change was made to the components of personal property,
which was the introduction of surrogacy. The solution, based on including
in the personal property those elements of property which had been gained
in lieu of components of personal property, should be seen as profoundly
justified. Thus a departure has taken place from those solutions, which by
means of the current narrow scope of surrogacy led to the effect which was
typical of the statutory regime of the general joint property. The financial
element is also important here—the new regulation does not discourage
investing one’s own funds. It eliminates the fear that the material objects
would become part of joint property. Furthermore, the introduction of full
surrogacy improves the situation of creditors, as it facilitates the claim procedure in relation to the personal property of the debtor and not the joint
property of spouses. 23
A very important change in the statutory system of joint marital property was the determination of totally new rules in terms of joint property management, 24 as the division into an ordinary management and activities exceeding such management have been eliminated. Pursuant to the code—
based assumption on the agreeable and loyal cooperation of the spouses for
the good of the family, it has been decided that each spouse has the right to
independently manage the joint property. Hence another regulation was
added which imposed on each of the spouses the duty to provide to each
other information on the state of the joint property, management of the joint
property and liabilities encumbering the joint property. Failure to perform
this duty can result in the limitation or deprivation of the right to independent management of joint property, or to the institution of a compulsory
separation of estates in matrimony.
The revised regulations provide for two exceptions from the rule of independent management of joint estate by both spouses. The first one, which
is of less significance, provides for the spouse, who is active professionally
or who carries out business activities, the right to independently manage the
material objects which are used in these business activities. The second
derogation carries much more weight. The other spouse has to declare permission for legal actions aimed at or resulting in the sale, encumbrance, paid
purchase or handing over for use of realty. Similar regulations apply in
relation to law on real property, the subject of which is a building, office
space, businesses, and farmsteads. Moreover, it is necessary to obtain the
permission of the other spouse in order to make a donation from the joint
property, with the exception of small donations commonly accepted. The
above regulations are justified not only due to the significant value of the
material objects of the property, but also due to their business significance
and, in the case of donations, due to the fact that their free of charge. Professional literature talks about the fact that the catalogue of actions requiring
permission is too narrow as it does not include the waiver of property ownership and other rights. 25 If the agreement was concluded without the consent of one of the spouses, then the validity of the agreement depends on the
confirmation of the agreement by the other spouse. The other party can give
the spouse a deadline for the confirmation of agreement and, upon its ineffective expiry, the agreement is released of being binding. It should also be
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noted that the multilateral legal activity performed without the consent of
the other spouse is invalid.
An important supplement to the above provisions is the right of objection of a spouse against the actions of joint property management intended
by the other spouse. The objection is effective in relation to a third party,
provided the party had the opportunity to get acquainted with it before the
action was undertaken. However, the objection does not apply in relation to
daily life issues or in the case of activities with the intention of satisfying the
ordinary needs of the family, nor those which are carried out as part of business endeavours. The provision gives the spouses a sense of legal security
against disloyal or careless behaviour of the partner.
A change of great importance is the completely new approach to the
problem of satisfying the creditor by means of joint property of spouses,
when only one of the spouses is the debtor. 26 The deciding factor here lies in
the consent of a spouse given at the time of making a debt. For that reason
the creditor can demand payment from the joint property of spouses. On the
other hand, lack of such consent limits the possibilities of the creditor’s
claims being met to personal property, remuneration for work or other paid
for activities or to copyrights and other related rights. Identical principles (as
in the case of lack of consent) refer to the liability in tort of one of the
spouses. The clear reference to the awareness and will of the indebted
spouse at the moment of generating the debt protects the family and confidence of economic transactions. In light of the new provisions the position
of the creditor has deteriorated as the present stipulation means the need to
obtain the consent of the spouse of one’s contractor—otherwise the settlement of debt from the means of joint property is not possible.
4. The new regulation is also related to contractual marital regimes. It
has significantly broadened the scope of freedom of spouses in the area of
concluding marital contracts. It does not mean, however, that there are no
limitations here. First of all, the catalogue of property contracts is restricted
to four types of agreements. Parties can, by means of a notary act, broaden
the scope of joint marital property, limit its scope, provide for a system of
separate estates in matrimony or a system of separate estates in matrimony
with the leveling of gained property. Any other contract is impossible, neither is it possible to merge elements of two different agreements, e.g. a partial extension of the joint property as to some of the elements of the property
and a partial restriction of the contract in relation to others. Furthermore, in
case of a marital contract providing for the extension or limitation of joint
marital property the parties cannot regulate the principles of joint property
management which would be in contrast to the principles provided for in the
statutory regime. They can, however, establish unequal shares in joint property at the moment of the joint property being terminated. Neither is it possible for the marital contract to include provisions related to other contracts,
e.g. on the distribution of inheritance, cancellation of joint property—if third
persons are party to these contracts. The aforementioned most important
restrictions are not exhaustive. 27 It should also be remembered that the effectiveness of marital contract vis a vis third persons is limited, as a spouse
can invoke the marital property agreement before third persons provided
that the conclusion and type of this agreement were known to these persons.
In case of a contract extending joint property, the most important thing
is to determine the catalogue of material items of property which cannot be
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included in the prenuptial agreement for that reason. The catalogue differs
from the old legal state and has been enlarged to five categories of items
now. 28
The biggest novelty in the area of contractual marital property regimes
is the introduction of the regime of separate estates in matrimony with leveling of gained property. The system has had an interesting history in Poland.
As far back as before World War II a proposal was drafted by the Codification Commission of a marital property law which provided for such regime
to be the statutory solution (pursuant to the Swedish model). In 1946, as part
of the unification of civil law, the regime was entered into force as the statutory one. The fact it was chosen stemmed from a compromise reached by
the supporters of the system of separate estates in matrimony and those in
favour of the system of joint gained property. Experience from applying the
decree must have been positive as already in 1948 the regime was maintained as the statutory one in the draft of civil code, introducing minor modifications such as the introduction of the instrument of a claim for the leveling of gained property. The current form of regulations recalls those from
1948 which had not constituted the law in force due to the process of “stalinization” (this was the era of the Stalinist totalitarian rule). 29 Hence the
reinstitution of the regime (despite the fact that it is now a contractual one)
is of a symbolic meaning, as it is a return to the old family relations. It
should also be stressed that when works were carried out on the revision of
the Code, it was postulated for the regime to become the statutory one, 30 as
it combines the assets of both the system of separate estates in matrimony,
as well as joint property. Each of the spouses maintains his/her property
from before marriage and the property gained during marriage. A spouse is
entitled to independent management and is liable for his/her own debts with
his/her own property. At the same time, the regime ensures equal rights of
spouses to the property gained during marriage, providing for a possibility
of leveling gained properties in case the regime is terminated. 31 The advantages of such a system are proved by the fact that in many of the European
countries this solution has a statutory status (Finland, Switzerland, and
Germany). 32 One must not forget, however, that the functioning of this
regime in Poland will be limited as a more common use of marital property
contracts should not be expected. A question thus arises about the reasons
for the legislator withdrawing from the obligation to register contracts—
which used to exist in Polish law in the past and is now in existence in countries such as the Netherlands, Greece, Estonia, Germany, Norway, and
France. 33
5. A few remarks should be made about the so called compulsory property regime. This term, new to the code, had been thus far used in the legal
language of the doctrine and jurisprudence in reference to the regime of
separate estates in matrimony introduced pursuant to the decision of the
court. This construction was used in the aforementioned decree of 1946. The
current state of regulations is in explicit reference to it. Compulsory marital
regime is aimed at protecting one of the spouses against the adverse actions
of the other, particularly in reference to the management of joint property.
The “compulsory” nature of the mechanism is such that the separate estates
in matrimony are not the result of the will of the spouses but of the law
(incapacitation or bankruptcy of a spouse) or decision of the court (separation, as well as “for important reasons” indicated by a spouse). 34
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6. Another change to the marital property relations is the new regulation, which takes into consideration the so called regime primaire. This is
the result of harmonizing Polish law with Recommendation R(81) 15
adopted by the Council of Europe in 1981 on the rights of spouses to inhabit
a family dwelling and to use domestic equipment. Despite the fact that in the
previous legal state the courts did provide legal protection to the spouse who
had not legal entitlement to the dwelling, the magnitude of the issue is such
that the code-based regulation is fully justified. Granting the spouse the right
to use the dwelling and domestic equipment belonging to the other spouse
so as to satisfy family needs (regardless of the binding property regime of
the spouses) is an important element of strengthening family ties. The legal
entitlement of spouses to the inhabited dwelling has not yet been regulated,
which is a faulty solution. 35 Moreover, the revised regulations do not include one pursuant to which the spouse, who is the owner of the dwelling,
could administer the house only upon consent of the other spouse. Such
solution would be compliant with the aforementioned Recommendation. 36
7. The revision of the Family and Guardianship Code presented above
has been the biggest change after 1989 so far. It should be stressed that the
amendments introduced are of fundamental nature for the functioning of
family and society. However, it is difficult to agree with the individually
voiced opinion about a “true revolution” in family law. 37 On the contrary,
the time it took to carry out the revision (15 years after the change of the
system), its scope and, most importantly, the solutions adopted serve as
clear indication of the evolutionary manner of changes chosen by the Polish
legislator. I believe it is justified to stress that the revision has been somewhat late. It does not change the fact, however, that the exercise is commonly extremely positively perceived. The few critical opinions refer to the
specific solutions, 38 but not to the entirety of the regulation.
8. The process of adapting the family code to the conditions of modern
society obviously does not end with the revision discussed. Although it is
stressed that the compliance assessment of code regulations against the
constitution and standards of the Council of Europe is generally positive, 39
there are still many issues which call for discussion. The decisive role is
played by the aforementioned Civil Law Codification Commission. Its president, whose term in office is for the years 2002-2006 and 2006-2010, has
on numerous occasions underlined that the role of the Commission is not to
create a new civil code (what would require many years) but only to develop
its assumptions. 40 One of the tasks is to determine whether family law is to
be a part of the new code or whether it should remain a separate codification—with a general part added, of course. However, even this problem has
not yet been solved what, to my mind, is indicative of the advancement of
efforts undertaken to create the new code. Although the so called Green
Book has been published upon the expiry of the term in office of the 20022006 Commission, containing de lege ferenda postulates, 41 it must be remembered that this is just the very beginning. Hence the efforts of the
Commission should be concentrated on subsequent partial revisions. At the
end of 2004 a working group for family law began work on the complex
revision of regulations regarding child-parents relations. This revision is to
encompass the following issues: statutory determination of kinship, its line
and degrees; establishing and denial of motherhood; recognition of fatherhood (instead of recognition of the child); inception, scope, and means of
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exercising parental authority; weakening of the obligation of maintenance of
parents towards children of age; contacts of children with parents and other
relatives (which are regulated in too synthetic manner); establishing rules
for foster care of a child. 42 It is underlined that regulating these spheres of
family law is much more difficult than in the case of property relations, as
they enter the customary and psychological sphere of life—touching upon
private aspects of one’s life. The work of the Commission has been completed, the draft forwarded to the Department of Legislation at the Ministry
of Justice. It should be noted that this particular revision of the Code (should
it come to life, of course) will be the most extensive one in terms of scale.
The draft calls for a separate presentation. It seems that much time will pass
before the new members of the Codification Commission, nominated in the
fall of 2006 for a new 4-year term, express their attitude to the proposal. The
presented plans for the new revision indicate what topics will not be taken
into consideration. Issues related to the form of provisions on divorce, unions of partners (common law marriages) are now beyond the scope of the
amendments drafted.
1. A. Lityński, Historia prawa Polski Ludowe j ( History of Law of the Polish
People’s Republic), Warsaw 2006, p. 200-207.
2. Fundamental amendments to the Civil Code were made relatively fast. The
act of 28 June of 1990 removed code provisions regarding, inter alia, the interpretation of civil law norms in line with the objectives of the socialist state, the differentiation of forms of ownership and the degree of its protection (particular protection
of the socialist public ownership), as well as specific characteristics of commercial
transactions between state enterprises.
3. M. Nazar, Problemy nowelizacji prawa rodzinnego (Problems with the Revision of FamilyLaw), ”Rejent” 2005, No 9, p. 81-82.
4. Such postulate was formulated by the nestor of Polish civil lawyers S. Grzybowski, Z problematyki usytuowania prawa rodzinnego w systemie prawa cywilnego
(zagadnienie przepisów części ogólnej oraz oświadczeń o wstąpieniu w związek
małżeński (On the Issues of Locating Family Law within the System of Civil Law (the
question of the general part as well as declarations on entering marriage, in: Księga
pamiątkowa ku czci prof. T. Dybowskiego), “Studia Iuridica” 1994, vol. XXI, p. 206
and following..
5. The team is composed of professors: Andrzej Mączyński, Tadeusz
Smyczyński, Mirosław Nazar, Janina Panowicz—Lipska. See: M. Nazar,
Problemy…(Problems), op. cit., p. 94.
6. M. Nazar, op. cit., p. 83-84.
7. For more see: T. Smyczyński, Reforma kodeksu rodzinnego i opiekuńczego w
świetle Konwencji o prawach dziecka (Reform of the Family and Guardianship Code
in Light of the Convention on the Rights of Children), in: Księga pamiątkowa ku czci
Profesora Leopolda Stockiego), Toruń 1997, p. 293-303.
8. Law of 24 July 1998 on the amendment to the law - Family and guardianship
code, Code of civil procedure, Law on marital status acts, acts on the relation of the
State towards the Catholic Church in the Republic of Poland as well as other laws
(Dziennik Ustaw - Journal of Laws No. 117, Ch. 757).
9. See the basic publication on the topic: W. G ó r a l s k i, Zawarcie
małżeństwa konkordatowego w Polsce (Concluding of Concordat Marriage in Poland), Warsaw 1998.
10. M. Lech-Chełmińska, V. Przybyła, Kodeks rodzinny i opiekuńczy. Praktyczny komentarz z orzecznictwem (Family and Guardianship Code. Practical Commentary with Jurisprudence), 3rd edition, Warsaw 2006, pp. 20-21.
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11. Law of 21.05. 1999 on amendments to the Family and guardianship code,
Civil code, Civil procedure code and a number of other laws (Journal of Laws No.
52, Ch. 532).
12. Both institutions were eliminated from Polish legal system by means of the
decree of 1945 which unified personal marital law. See: P. Fiedorczyk, Z prac nad
unifikacją osobowego prawa małżeńskiego w 1945 r. (On the Efforts to Unify Personal Marital Law in 1945) , in: Miscellanea historico - iuridica, volume I, ed. A.
Lityński and P. Fiedorczyk, Białystok 2003, p. 80.
13. M. Nazar, op. cit., p. 84.
14. Z. Radwański, Prawo cywilne PRL (Civil Law of the Polish People’s Republic), “Czasopismo Prawno - Historyczne” 1995, volume XLVII, issue 1-2, p. 30.
15. T. Smyczyński, Kierunki reformy kodeksu rodzinnego i opiekuńczego
(Directions of Reform of the Family and Guardianship Code), “Kwartalnik Prawa
Prywatnego” 1999, issue 2, p. 313.
16. Komisja Kodyfikacyjna Prawa Cywilnego. Założenia i ogólny kierunek
zmian w prawie cywilnym, prawie rodzinnym i gospodarczym oraz postępowaniu
cywilnym (Civil Law Codification Commission. Assumptions and Main Direction of
Changes in Civil Law, Family Law and Commercial Law, as well as in Civil Procedure), “Kwartalnik Prawa Prywatnego” 1997, issue 2, p. 323.
17. The course of works has been presented by M. N a z a r, Problemy…(Problems…), op. cit., p. 94-97.
18. See: Motives for the draft law in: Z prac Komisji Kodyfikacyjnej Prawa
Cywilnego (On the Work of the Civil Law Codification Commission), “Przegląd
Legislacyjny” 2000, No. 2, p. 179-180.
19. T. Smyczyński seems to be a supporter of this approach, Projekt ustawy
zmieniającej małżeńskie prawo majątkowe (Draft Law Amending Marital Property
Law), “Studia Prawnicze” 2000, issue 3-4, p. 154-155.
20. P. Fiedorczyk. Z badań nad małżeńskimi ustrojami majątkowymi w
powojennym ustawodawstwie polskim (Rresearch on Marital Property Regimes in
Post-War Polish Legislation), in: Podstawy materialne państwa. Zagadnienia prawno - historyczne, ed. D. Bogacz and M. Tkaczuk, Szczecin 2006, p. 752-753.
21. This argument could be seen as dubious as there was the possibility of determining appropriate adaptation periods (vacatio legis).
22. Uzasadnienie…(Motives), op. cit., p. 180-181.
23. J. Strzebińczyk, Nowelizacja przepisów kodeksu rodzinnego i opiekuńczego
w zakresie małżeńskiego prawa majątkowego (cz. I) )(Revision of the Provisions of
Family and Guardianship Code in the Scope of Marital Property Law, Part I), “Rejent” 2004, No. 8, p. 149; and A. Kozioł, Ustroje majątkowe małżeńskie po nowelizacji Kodeksu rodzinnego i opiekuńczego (Marital Property Regimes upon the Revision of Family and Guardianship Code), “Monitor Prawniczy” 2005, No. 15, p. 742.
24. See: P. Wójcik, Zarząd majątkiem wspólnym małżonków(Management of
Joint Property of Spouses), “Monitor Prawniczy” 2006, No. 1, p. 28-33.
25. K. Pietrzykowski, Nowe przepisy o małżeńskich ustrojach majątkowych
(NewRegulations on Marital Property Regimes), “Palestra” 2005, No. 3-4, p. 26.
26. The issue is discussed in great detail by A. Lutkiewicz-Rucinska, Uwagi do
art. 41 kodeksu rodzinnego i opiekuńczego po reformie małżeńskiego prawa
majątkowego (Comments to Art. 41 of the Family and Guardianship Code upon the
Reform of Marital Property Law), “Rejent” 2005, No. 12, p. 92-112.
27. As presented by G. Bieniek, Umowne ustroje majątkowe (Contractual
Property Regimes), “Rejent” 2005, No 9, p. 114-117.
28. As discussed by J. Strzebińczyk, Nowelizacja przepisów kodeksu
rodzinnego i opiekuńczego w zakresie małżeńskiego prawa majątkowego (cz.
II)(Revision of the Provisions of Family and Guardianship Code in the Scope of
Marital Property Law, Part II), “Rejent” 2004, No. 9, p. 90-91.
29. P. Fiedorczyk, From research…, op. cit., p. 760-762.
Marriage in Central Europe
153
30. Such position was, for example, adopted by the Legislative Council to the
Prime Minister in 1996. See: Stanowisko Rady Legislacyjnej w sprawie ustawodawstwa regulującego sytuację majątkową członków rodziny (Position of the Legislative Council on the Issue of Legislation Regulating the Property Situation of Family Members), “Kwartalnik Prawa Prywatnego” 1996, issue 4, p. 781.
31. M. Łączkowska, Propozycje zmian regulacji ustawowego małżeńskiego
ustroju majątkowego (Proposals of Amendments to the Statutory Marital Property
Regime), in: Prawo wobec wyzwań współczesności, ed. P. Wiliński, Poznań 2004, p.
89.
32. M. Szydłowska, Ustrój rozdzielności majątkowej z wyrównaniem dorobków
(System of Separate Estates in Matrimony with Leveling of Gained Property),
“Monitor Prawniczy” 2005, No. 3, p. 145-146.
33. T. Smyczyński, Kierunki reformy…(Directions of Reform…), op. cit., pp.
314-315; M. Szydłow s k a, op. cit., p. 144.
34. These solutions are discussed by M. Sychowicz, Przymusowy małżeński
ustrój majątkowy (Compulsory Marital Property Regime), “Przegląd Sądowy” 2006,
No. 1, p. 23-33.
35. K. Pietrzykowski, Nowe przepisy o małżeńskich ustrojach majątkowych
(New Provisions on Marital Property Regimes), “Palestra” 2005, No. 3-4, p. 30.
36. A. Lutkiewicz-Rucińska, Uwagi do projektu zmiany małżeńskiego prawa
majątkowego (Comments to the Draft Amendment on Marital Property Law , “Kwartalnik Prawa Prywatnego” 2001, issue 1, p. 149.
37. K. Gromek, Rewolucja w rodzinnym - co przyniosła nowela czerwcowa?
(Revolution in Family Law - What Has the June Amendment Brought About?) “Edukacja Prawnicza” 2005, No. 1, p. 16.
38. E.g.: E. Skowrońska-Bocian, Rozliczenia majątkowe małżonków w stosunkach wzajemnych i wobec osób trzecich (Settlement of Accounts of Spouses in Mutual Relations and in Reference to Third Parties), issue 3, Warsaw 2005, pp. 235236 indicates at the ambiguities which the amendment has not removed in terms of
the spouse’s liability before third parties.
39. K. Pietrzykowski, Ocena stanu prawa rodzinnego w Polsce (Assessment of
the State of Family Law in Poland), “Przegląd Legislacyjny” 2001, No. 3, p. 178.
40. Z. Radwański, Założenia dalszych prac kodyfikacyjnych na obszarze prawa
cywilnego (Assumptions for Further Codification Efforts in the Area of Civil Law) ,
“Zaństwo i Prawo” 2004, No. 3, p. 7.
41. Zielona księga. Optymalna wizja Kodeksu cywilnego w Rzeczypospolitej
Polskiej (The Green Book. The Optimum Vision of the Civil Code in the Republic of
Poland , ed. Z. Radwański, Warsaw 2006.
42. M. Nazar, op. cit., p. 98.