Separation of partners - how homosexuals can share joint property

Despite repeated attempts to pass various bills on civil partnerships over the past two decades, the issue of entering into and dissolving civil partnerships has not been legally regulated in Poland. Despite the fact that homosexual persons constitute an increasingly large social group, the principles they can follow in organising their life together have to look for in regulations scattered in various legal acts. It is no different when it comes to regulating the separation of partners.

Partnership’ property

Unfortunately, there is no such thing in the Polish legal system. Persons in a partnership (informal relationship) are treated as strangers from a legal point of view. Emotional, financial as well as physical ties, which, after all, constitute a marriage, have no meaning in relation to a same-sex relationship. The rules governing, for example, the division of joint property between spouses cannot therefore be applied (per analogiam) to it.

Joint property

Although Polish law recognises persons in a civil partnership as strangers to each other, there is nothing to prevent them from buying a property together (or even taking out a mortgage together). Of course, they will appear in these contracts as co-owners (and co-borrowers). A jointly bought flat, house or building plot, due to its value, is most often the main object of division in the event of separation. It is important to note that, depending on the provisions of the specific contract of sale of the property, as a rule, the partners acquire it in equal shares (half each). After separation, the former partners are mainly faced with deciding which of them is to remain in the property (with the obligation to repay the other). They may also decide to sell the property and divide the proceeds 50/50.

Amicably or judicially

If it is decided by the former partners that one of them is to remain in the jointly purchased flat, it is necessary to conduct proceedings for the dissolution of joint ownership of the property. There are two ways to do this: by means of a notarised agreement or by means of proceedings before the court. The first way requires first of all an agreement between the former partners on the future fate of the jointly owned property. The notary is not the authority that will settle disputes. He or she may help to draft the necessary provisions in the agreement, but the quarrelling parties will leave the notary's office with nothing and will only be left with the court route, which is intended precisely for people who are in conflict as a result of their separation. The court will then decide whether to physically divide the property so that each former partner gets his or her own living space within it, or whether it will award the whole of it to one party with the obligation to repay the other or decide to sell it and divide the proceeds.

Goods returned

Another issue is that in a lasting relationship, it is commonplace to give each other gifts. Often, these are very expensive. This is because partners do this as a token of the love they have for each other. There is no doubt that a break-up can give rise to a lot of negative emotions, while at the same time arousing the intention to reclaim valuables. According to the Supreme Court, this is possible, but difficult. The ex-partner will have to prove in a lawsuit for the return of the wrongful consideration (donated object) that the other person gave him or her grounds to believe that the relationship would last longer. In other words, it will be his or her task to show that, for example, that very expensive turntable for the partner collecting vinyl records was intended to make the relationship last as long as possible and was an expression of unflagging affection and care, while at the same time the other party also perceived the gift as an expression of a desire to continue and care for the relationship.

All or nothing?

As the legal status of civil partnerships is still unregulated in Poland, same-sex couples face a lot more legal problems than spouses. The longer the relationship lasts, the more issues may become the subject of settlements in the event of separation. However, if a break-up does occur, it is never a good idea to channel bad emotions into purely material issues. It is necessary to approach these matters in cold blood and, if the situation does not allow it, to hand over to an attorney who will be able to assess all the circumstances in a cool and emotionally unemotional way and bring the parties to a proper settlement.