- Business in Poland -
Prenuptial and Postnuptial Agreement – Before the Wedding and During Marriage. What Protects Your Assets?
A prenuptial agreement, known in Poland as an intercyza, is a marital property agreement executed in the form of a notarial deed. It modifies the statutory property regime between spouses or future spouses. It is often associated with separation of property, but it may also extend or limit statutory community property, establish separation of property with equalisation of accrued gains, or restore community property after an earlier separation of property [1].
For business owners, management board members, investors and professionals exposed to increased financial risk, a prenuptial or postnuptial agreement is not merely a document “in case of divorce”. It is a tool for organising liability for obligations, rules for managing assets and the consequences of business decisions made during marriage.
Prenuptial agreement before marriage - when does it take effect?
A prenuptial agreement before marriage is signed by future spouses before a notary. If it is intended to establish separation of property, it takes effect upon the conclusion of the marriage. Until that moment, there is no joint marital property yet, so the agreement sets the rules for the future.
In practice, a prenuptial agreement before marriage may be particularly important where one party runs a business, holds shares in companies, plans to finance an investment with a loan, or expects to inherit significant assets and wants to organise the financing of their maintenance or investment. Setting the rules before entering into marriage reduces later evidentiary disputes and makes it possible to clearly separate private assets from assets connected with professional activity.
Postnuptial agreement during marriage - can it be signed later?
A marital property agreement during marriage is allowed and also requires a notarial deed. It may be concluded at any time during the marriage, provided both parties agree. As a rule, it has effect for the future, from the date specified in the agreement, most often from the date of signing.
This does not automatically “erase” the joint marital property created earlier. If, until the date of signing the postnuptial agreement, the spouses were subject to the statutory community property regime, the joint property created up to that point still needs to be settled. After separation of property is established, each spouse acquires assets into their own separate estate.
In cases requiring an assessment of joint marital property, shares, outlays and settlements after the termination of community property, support in the area of family law may be helpful, especially where the case combines family, business and evidentiary aspects.
Separation of property - what does it actually protect?
Separation of property means that, once it is established, no new joint marital property is created. Each spouse retains the assets acquired before the agreement was concluded and independently acquires assets after its conclusion. Each spouse also manages their own property independently.
In practice, separation of property may reduce the risk that the obligations of one spouse will affect the assets generated by the other. This is important in business activity, contractual liability, sureties, loans, enforcement proceedings and risks arising from managerial functions.
However, it is not an absolute protection mechanism. The effectiveness of a prenuptial or postnuptial agreement depends on the date it was concluded, the type of obligation, the creditor’s knowledge, the wording of the documents and the specific facts of the case.
Three exceptions that must be taken into account
A marital property agreement does not always protect assets fully. A risk analysis should take into account, in particular, three exceptions:
- First: obligations incurred before signing the agreement. A marital property agreement does not operate retroactively against obligations that arose earlier. If a debt arose during the statutory community property regime, the later introduction of separation of property alone does not determine that there is no liability involving assets previously covered by community property.
- Second: effectiveness against a creditor depends on the creditor’s knowledge. Under Article 471 of the Family and Guardianship Code, a spouse may rely on a marital property agreement against another person if that person knew of the conclusion and type of the agreement [1].
- Third: liability for the ordinary needs of the family. Article 30 of the Family and Guardianship Code provides for the joint and several liability of spouses for obligations incurred by one of them in matters arising from meeting the ordinary needs of the family [1].
In addition, there are creditor protection instruments, including the actio Pauliana, or fraudulent conveyance claim, under Article 527 et seq. of the Civil Code, where a transaction was made to the detriment of creditors and the statutory conditions are met [2].
Prenuptial agreement and business, shares and managerial liability
A person running a business should treat a prenuptial or postnuptial agreement as part of broader risk management. A marital property agreement alone does not replace properly drafted articles of association, internal regulations, contractual safeguards, compliance procedures or control over liabilities. It may, however, reduce the risk of overlap between the family and business spheres.
The following are particularly important:
- sources of business financing and loan security,
- sureties granted by a spouse or with a spouse’s consent,
- acquisition of shares, stocks, real estate and intellectual property rights,
- remuneration of management board members and benefits from business activity,
- possible enforcement, white-collar criminal or tax proceedings.
It is worth distinguishing a marital property agreement from settlements in divorce or division of property proceedings. Separation of property alone does not eliminate all claims between spouses, especially those relating to outlays, repayments, loans or the financing of assets formally owned by one person.
Prenuptial agreement cost - what determines the price?
The phrase “prenuptial agreement cost” most often refers to notarial fees. For a marital property agreement alone, the maximum notarial fee is PLN 400 net [3]. VAT, currently 23%, must be added, as well as fees for copies of the notarial deed, up to PLN 6 net for each commenced page of the copy [3]. If the deed also covers other actions, such as division of property, the costs may depend on the type of action and the value of the assets.
If a prenuptial or postnuptial agreement is part of broader asset planning, the cost may also include a legal analysis of documents, asset structure, liabilities, loan agreements, shares in companies or potential claims. In high-value asset matters, saving money on analysis before signing the document may lead to costly disputes in the future.
What does a prenuptial or postnuptial agreement not resolve?
A marital property agreement does not replace a will, articles of association, succession planning documents or documents concerning business management. It also does not automatically determine maintenance, parental authority, contact with children or fault for the breakdown of the marriage.
Nor should it be treated as a way to hide assets from creditors. If the circumstances indicate action to the detriment of creditors, the transaction may be challenged under civil law. In contentious cases, the court examines the facts, the chronology of events, the parties’ awareness and the documents.
Marital property agreement and unequal shares in joint marital property
If statutory community property already existed and then ended, the starting point is that spouses have equal shares in the joint marital property. In specific cases, it is possible to request a determination of unequal shares if there are important reasons for doing so and the spouses contributed to the creation of the joint marital property to different degrees [1]. This issue is discussed in more detail in the analysis of when unequal shares in joint marital property may be established.
This material is for information purposes only and does not constitute legal advice. Assessing the effects of a prenuptial or postnuptial agreement requires an analysis of documents, dates on which obligations arose, sources of financing and the purpose of the agreement.
If a marital property agreement is intended to protect private or business assets, a prior risk analysis by KKZ lawyers is advisable. You can contact the Kopeć Zaborowski law firm through the KKZ website.
FAQ: Prenuptial agreement before marriage and postnuptial agreement during marriage
Does a prenuptial agreement before marriage take effect on the date of signing?
Not in the full sense. If a prenuptial agreement before marriage establishes separation of property, it takes effect when the marriage is concluded. Before the wedding, statutory marital community property does not yet exist.
Does a postnuptial agreement during marriage operate retroactively?
As a rule, no. A postnuptial agreement during marriage has effect for the future. It does not automatically remove the consequences of obligations and assets created earlier during the statutory community property regime.
Does separation of property protect against a spouse’s debts?
It may reduce the risk of liability, but not always. The date on which the debt arose, the creditor’s knowledge of the marital property agreement, the nature of the obligation and possible liability for the ordinary needs of the family are all relevant.
How much does a prenuptial agreement cost at a notary in Poland?
For drawing up a notarial deed covering a marital property agreement, the maximum notarial fee is PLN 400 net. VAT, currently 23%, must be added, as well as the cost of copies of the deed, up to PLN 6 net for each commenced page of the copy. In the case of more complex assets, the cost of legal analysis should also be taken into account.
Does a prenuptial agreement protect a sole proprietorship?
It may help separate the spouses’ assets, but it does not eliminate risks connected with business activity. Creditors, banks and counterparties may require additional security, and earlier obligations must be assessed separately.
Can a prenuptial or postnuptial agreement be amended or terminated?
Yes. Spouses may amend or terminate a marital property agreement, also in the form of a notarial deed. It is also possible to restore the statutory community property regime if both parties agree.
Author: adw. Maciej Zaborowski, Managing Partner
E-mail: m.zaborowski@kkz.com.pl
Bibliography
- [1] Act of 25 February 1964 - Family and Guardianship Code, in particular Articles 30, 41, 43, 47, 471, 51 and 512.
- [2] Act of 23 April 1964 - Civil Code, in particular Article 527 et seq. concerning the actio Pauliana, or fraudulent conveyance claim.
- [3] Regulation of the Minister of Justice of 28 June 2004 on maximum notarial fee rates, in particular § 8 point 2 and § 12.
