A contribution from the spouses’ joint property without the other spouse’s consent and the limits of a legal person’s autonomy

Abstract

The contribution of assets forming part of the spouses’ joint property to a capital company as an in-kind contribution (aport) without the consent of the other spouse leads to a change in the structure of the joint property by replacing the asset with share rights governed by commercial law. Shares acquired in exchange for such a contribution may belong to the marital joint property; however, the status of shareholder is vested exclusively in the spouse who subscribed for the shares. According to the case law of the Supreme Court, the effectiveness of the contribution in the sphere of company law does not determine its full effectiveness in the property relations between spouses. The lack of the spouse’s consent required under Article 37 of the Polish Family and Guardianship Code does not, as a rule, result in the invalidity of the transaction with respect to the company or third parties, but it produces consequences in the property relations between the spouses, particularly at the stage of the division of marital property. In this respect, the compensatory mechanisms provided for in Articles 45 and 46 of the Family and Guardianship Code are of particular importance. In specific circumstances, such a transaction may also be regarded as an act aimed at circumventing the law within the meaning of Article 58 § 1 of the Polish Civil Code. The autonomy of a legal person is therefore subject to limitations resulting from mandatory rules of family law and the constitutional principle of protection of marriage and the family.