Getting married is connected with the creation of joint property. This means that from now on we dispose of our assets together, but we are equally burdened with possible debts. All property benefits and obligations arising from the time of marriage are borne by both spouses.
Is this then synonymous with the fact that, being married, we cannot independently (often without the consent of the other spouse) incur obligations? Can I take a loan without my spouse’s consent?
Do we have a chance for a loan without the consent of the spouse?
We should begin our considerations with the fact that marriage is a combination of two people on various levels. We take this step for various reasons. However, life verifies everything and it quickly turns out that it has nothing to do with what we can see in the movies. Marriage is not only great love but also a life together, and therefore finances. And they are the ones that most often cause the biggest problems.
The legislature itself in the Act of February 25, 1964. The Family and Guardianship Code (hereinafter referred to as the Act) stipulates that spouses are obliged to cooperate in the management of joint property, in particular to provide each other with information on the state of joint property, on the performance of management of joint property and on obligations encumbering joint property. So this means that when we decide to live together, we should also act together in financial matters. However, how is it in practice?
Loan without the consent of the spouse and property separation
By law, what we bring into marriage is personal property. Since the marriage, the acquired goods belong to both. If, when entering into marriage, one of the parties, for example, clearly earns better and is in a better financial situation, or simply want to secure your finances, we can decide to establish property separation. In this case, each of the spouses retains both the property acquired before the conclusion of the contract and the property acquired later. Equally important, each of the spouses manages their property independently. Therefore, due to the fact that he is also responsible for financial obligations, he can take them without the consent of the spouse and there are no restrictions in this matter, except of course his creditworthiness. A loan without your spouse’s consent is then possible, and it is normal practice. In this case, banks do not even have the right to request the consent of the other party. At this point, despite entering into marriage, a separate notarial deed establishes that the property of each of the spouses, both before and after marriage, is personal property. Hence, as a rule, only the person to whom the credit or loan relates will be responsible for all financial obligations.
When it comes to credit without the consent of your spouse, property separation gives the greatest protection. In the event of a lack of repayment by the party who took the loan, the other person is protected by art. 47 of the Act, according to which a spouse may rely on a matrimonial property contract to other persons when its conclusion and type were known to those persons.
YOU MUST REMEMBER – due to legal consequences, when taking a loan without your spouse’s consent, we must notify the lender that we have established property separation. The funding provider must be informed that despite being married, we do not have joint property. Only in this case is the intercyza effective against the creditors and thus protects the other party. If this obligation is not met and the creditor was not aware of the intercourse (if the other party does not prove that the financial institution had knowledge of the property separation of the spouses), in the event of recovery, it may reach the assets of both spouses.
Property community and credit
As a rule, however, when entering into marriage, joint property is also created. In the main, Poles do not decide to sign the intercry. Therefore, on the day of the marriage they work for good, which is their common property and also collectively responsible for all obligations. In practice, this means that no matter how much financial contribution you make during the marriage, the benefits are shared. Also in the case of liabilities, the obligation to pay is equally borne by both parties. Can I take a loan without my spouse’s consent?
One would think that a loan without the consent of the spouse is impossible to obtain. Since the legislator himself says that together we are also responsible for the obligations, as possible to receive financing alone, when the responsibility for debt rests on both sides. However, let us go even further and note that the same legislator provides that by deciding to get married, we agree to cooperate in the management of joint property, and in particular to exchange information on matters concerning him. However, as life shows, we do not always act as above. Hence the question that is constantly arising whether a loan is possible without the consent of the spouse and what are the consequences for both parties?
Loan without the consent of the spouse for joint property
Marriage is voluntary, and the responsibilities that fall on us with this step should be clear and understandable to everyone. This is not a limitation on our “freedom” and therefore we cannot absolutely deprive someone of such rights as the possibility of contracting. Therefore, a loan without the consent of the spouse is also possible in a joint property. However, given the good of both sides, certain restrictions are introduced that are intended to protect, above all the party who did not know about the loan.
We can definitely apply for a loan without your spouse’s consent, but with certain restrictions. Banks introduce, among others limitation on the amount of credit that we can take out while married and not having the consent of the spouse. It does not mean that we can take such loans indefinitely. Not only the amount of a single loan is limited, but also the total amount of all liabilities that we can have on the account without the consent of the other party. This is a kind of protection for your spouse, but it does not give us full guarantee or complete protection.
What is also worth mentioning is the fact that neither we nor the bank have the power to check the credit history of our spouse. When applying for a loan alone, we will not find out whether our spouse had or is currently repaying any liabilities. On the other hand, when we are not aware of the fact that the spouse has applied for a loan, we can be sure that our data is properly protected.
Loan without the consent of the spouse up to what amount
If, being married, we decide to take out a loan without the consent of the spouse, the banks introduce maximum loan amounts to secure themselves. However, there is no single amount imposed in advance. This depends on the branch we choose and, as in all other cases, on our creditworthiness. Loan without consent of the spouse up to what amount? We can count on amounts up to several tens of thousands of zlotys (this is also the maximum sum of all loans without the consent of the spouse). What if we want to apply for larger amounts?
Mortgage without the consent of your spouse?
Higher loans are usually associated with the need to establish collateral. In the case of marriages with joint property, we can unequivocally say that we will not receive a loan secured by a jointly owned property. Pursuant to the Act, the consent of a second spouse is needed, among others to perform a legal act leading to encumbering the property or perpetual usufruct, building or premises. So if we have a loan secured by a mortgage, which is our joint property, we can be sure that the bank will require the consent of both spouses.
Loan without the consent of your spouse – who will pay any debts?
In the case of having joint property and an obligation, to which both spouses are a party, for any debts, the spouses are responsible for joint property and personal property.
When we have established joint property, and only one of the spouses is a party to the financial liability, but the other spouse has agreed to this, the creditor may seek payment of debts from the joint property and from the personal property of the debtor (i.e. one of the spouses who is a party to the contract). At this time, only the personal property of the other spouse who is not a party to the contract is secured.
When it comes to credit without the consent of your spouse in a joint property, the situation is as follows. If the loan agreement was concluded without the consent of the other party (the contracting party is one of the spouses and the other did not know about the contracted obligation), the creditor will be able to seek satisfaction of the debtor’s personal assets (the spouse who is a party to the loan agreement) and his remuneration, income or other financial benefits – that is, from some of the components that are part of the joint property of the spouses.
This, however, does not protect against the spouse’s debts if the money has been allocated to the normal needs of the everyday life of the marriage and thus has been allocated to joint expenses arising from the needs of the family. In this case, the spouses are jointly and severally liable, irrespective of who made the commitment. Of course, as long as the party who decided to pay back the loan regularly, we may not even know about it. The problem arises when it is in arrears and the bank starts looking for people from whom it can demand repayment.
In this case, however, some protection was provided. In accordance with art. 30 of the Act, for important reasons, the court may, at the request of one of the spouses, decide that only the spouse who incurred them is responsible for the above obligations.
On the one hand, we can think that this is at least ridiculous, however, it is us ourselves who decide on the choice of a life partner and, deciding to live together and conduct finances, it is primarily for us to control it. When entering marriage, we trust the other person in financial matters.