Even in a very harmonious marriage, it is possible for one spouse to take out a loan, not to mention the other. Contrary to appearances, such things happen much more often than it seems. It is not always about debts or drugs that you want to hide from your partner.
Often money is borrowed to pay for a more expensive hobby, a family trip or a bigger surprise to please a wife or husband. When you urgently need funds, you do not think about the fact that the loan may not only affect your finances, but also your partner’s. Before you decide on such a step, think carefully about its consequences.
What is a property community?
The consequences of taking out a loan may vary depending on whether or not there is a property community in your marriage. Such a community is formed at the time of marriage, unless the spouses have signed the intercourse.
Joint property after marriage means that every property acquired during the marriage becomes part of the joint property of the spouses.
Legal regulations emphasize that joint property includes in particular:
- remuneration for the work of each of the spouses,
- income from other gainful activities,
- income from joint and personal property of each of the spouses,
- funds accumulated on the retirement account (open or employee) of each of the spouses.
Despite the joint property, however, you can have assets that will belong only to you. Among them are:
- things acquired before marriage, i.e. before the establishment of joint property;
- items acquired as a result of inheritance, enrollment or donation, unless the testator decides otherwise;
- items obtained as rewards for your personal achievements;
- items acquired in exchange for personal assets, that is, for example, copyright and related rights, industrial property rights and other rights of the creator;
- claims for remuneration for your work;
- claims under other gainful activities;
- items obtained for compensation for bodily injury or for causing health disorder or for compensation for harm suffered; however, this does not apply to the pension due to the injured spouse due to total or partial loss of work capacity.
Liability for debts and the property community
Before the wedding, many people wonder if the property community is certainly a safe solution for them. The question is whether, as a spouse without intercession, you automatically take responsibility for debts incurred by your husband or wife. Fortunately, not always.
The law protects people whose spouse has borrowed without their consent. Article 41 of the Family and Guardianship Code clearly indicates that the creditor may also demand satisfaction from the joint property of the spouses if the spouse has entered into an obligation with the consent of the other spouse. Lack of such consent means that the joint property remains secure.
If you did not know about your spouse’s non-bank loans, then he or she should mainly be worried about how to pay back the debt. In the event of an execution, the bailiff will have the right to take:
- his remuneration for work,
- his income obtained by him from other gainful activities,
- he enjoys the benefits of copyright and related rights, industrial property rights and other rights as the creator.
For a creditor to claim repayment from joint property, he would have to prove that you knew about your spouse’s loans and that you agreed to them, which is very difficult in practice. So if you are in a similar situation, as a rule you don’t have to worry about the shared part of the property.
However, there are exceptions to the above provisions that you should read if you are concerned that your spouse may have taken out a loan or has similar plans. In what situations will the creditor be able to demand repayment also from your joint funds?
- This can be done if the money borrowed has been spent on everyday expenses, such as buying food or paying bills.
- This can also be done if the money from the loan has been used for everyday expenses, i.e. for the purchase of household appliances or similar home accessories.
- This can also be done if it was used for activities related to the gainful activity undertaken by the spouse.
Simply put, if your husband or wife took out a loan for the usual needs of the family related to, for example, maintaining an apartment, buying clothes, raising children or protecting health, you will answer for debts together.
How to take loans in marriage responsibly?
As a spouse, you have the option of taking out a loan without your husband’s or wife’s consent. However, this is a solution that can bring many unpleasant consequences. At best, they will affect your financial position. At worst, they will worsen the legal situation and destroy confidence in your relationship.
If you openly tell your spouse your willingness or need to take out a loan, you can not only count on understanding and support. If you convince a partner to this solution, together you will have a much better chance of a loan on better terms. Often, loans without the consent of your spouse are subject to various restrictions.
Most often, the amount you can apply for is reduced. Usually it amounts to a maximum of several thousand zlotys. A common desire to borrow money is particularly high in the bank. In such a situation, the bank assesses the creditworthiness of the entire marriage, not just one person.
Of course, if you decide to do it, you will be responsible for paying off the debt together with your spouse, i.e. all the components of the joint property. In many cases, however, you have no other choice. It is impossible to take a mortgage or a car loan without the knowledge of your spouse.
A loan taken out without your spouse’s consent – what to do?
If you have just found out about a loan that your spouse took out, you have the right to have concerns about your finances. If the loan has not been taken out without the spouse’s consent in connection with the payment of your spouse’s normal family needs or gainful activity, you will not be liable for debts with your property.
Ideally, however, if you consult your lawyer to make sure that in your case the creditor has no right to demand repayment of the debt from the joint property.
It happens that the creditor tries to force the repayment of the liability from the personal property of the debtor’s spouse. If this happens, you should send a letter to the creditor explaining his mistake. If this intervention does not work, you can report the case to the prosecutor’s office.
How to pay back loans after divorce?
Perhaps in connection with the situation, you are wondering whether divorce will protect you from having to repay the loan taken during the marriage with the property community. Divorce loans don’t go away, but who will have to pay depends on who took out the loan.
If only your spouse made a commitment during the marriage, he or she will have to pay the debt with your money. In this situation, it does not matter whether you knew about the loan and agreed to it, or whether it was concluded without your knowledge.
However, if you borrowed money together, the creditor can help you repay only from one of you. Most often, he will choose the person who, in his opinion, gives a greater chance of paying off the commitment. After paying the debt, however, you will be able to claim half of the money paid back from your ex-spouse.