This raises a natural question: is the consent of the spouse required to file for bankruptcy? And if not, to what extent can their rights and assets be affected by the proceedings? In the following text, we provide clear and practical answers to the most frequently asked questions related to the bankruptcy of a married person.

Is the consent of the spouse definitely required to declare bankruptcy?

No, the law does not require the consent of the spouse to file for bankruptcy. A natural person, regardless of whether they are married or not, may file such a petition on their own. This applies to both business owners and consumers. The law does not provide for any stage at which the spouse would have to give consent or be a party to the proceedings simply because they share joint property with the applicant.

In practice, this means that one spouse may declare bankruptcy without the knowledge or consent of the other. The court does not examine the relationship between the spouses or check whether the application has been consulted with them. The proceedings are conducted exclusively against the indebted person. The spouse is only informed about them later – usually by the trustee – because the effects of bankruptcy may extend to joint property. However, the decision to declare bankruptcy is made independently of the position of the other party.

How does bankruptcy affect the joint property of spouses?

Although the consent of the spouse is not required to file a petition, the effects of declaring bankruptcy often have a significant impact on joint property. If, at the time of declaring bankruptcy, the spouses remain in a joint property regime, then, pursuant to Article 124(1) of the Bankruptcy Law, it ceases by operation of law. No additional court decision or notary intervention is required. From the moment of declaring bankruptcy, a separate property regime is established and all joint property becomes part of the bankruptcy estate.

In practice, this means that the trustee has the right to liquidate joint property – including real estate, movable property, joint savings and even everyday items – if it serves to satisfy creditors. It does not matter whose funds were used to purchase them formally, as long as they belong to the joint property. The spouse cannot dispose of them independently, even if they were not the debtor.

It is possible to establish separate property in advance, e.g. through a prenuptial agreement. However, it should be remembered that such separation will only be effective against the bankruptcy estate if it was concluded at least two years before the date of filing for bankruptcy (Article 125). Property agreements concluded later may be considered ineffective against creditors. This is particularly important to remember when the joint property constitutes a significant part of the couple’s assets.

Does the spouse have any influence on the course of the bankruptcy proceedings?

The spouse of a person who has been declared bankrupt is not a party to the bankruptcy proceedings. They do not participate in them by virtue of the law, because they are not formally a debtor. However, this does not mean that their position is completely passive. The proceedings may directly concern assets that have remained joint until now, and this gives the spouse certain rights.

First of all, pursuant to Article 124(3) of the Bankruptcy Law, the spouse may file claims for their share in the joint property. In practice, this boils down to pursuing claims in bankruptcy proceedings – most often in order to recover a share in items that have been taken over by the trustee and which the spouse considers to belong to the joint property. However, this requires a formal claim to be filed and a verification procedure to be followed in the course of the proceedings.

In addition, the spouse may be required to present documents or evidence confirming ownership or the origin of the property. In certain cases, they may also initiate separate proceedings to exclude specific items from the bankruptcy estate. Although they do not participate in the case as a party, they may actively work to protect their property interests.

How to prepare for bankruptcy when joint property is involved?

If, at the time of the planned filing for bankruptcy, the spouses remain in a joint property regime, preparation for the proceedings should include not only an assessment of their own liabilities and assets. The effects that the declaration of bankruptcy will have on the other spouse should also be taken into account. In such a situation, it is particularly important to take a conscious approach to the issue of property. It is necessary to determine what will actually become part of the bankruptcy estate. This includes not only personal property, but also joint assets – even those that are used on a daily basis by the other spouse.

The first step should be to draw up a clear list of assets. It is worth separating items acquired before the marriage, gifts and inheritances (personal property) from joint assets. The latter group includes, for example, property acquired during the marriage, joint accounts, vehicles and household equipment. This division makes it easier to organise the situation and allows for better preparation for discussions with the trustee.

When considering separate property, it is worth consulting in advance whether such a move makes sense and what the consequences might be. It is also necessary to assess what consequences it may have in the light of the applicable regulations. In practice, it is often safer to document reliably who owns what. Entering into a prenuptial agreement at the last minute may be ineffective – it will be considered invalid in relation to the bankruptcy estate. It is equally important to prepare your spouse for what may happen. Many people do not realise that some everyday items may also be subject to proceedings and put up for sale.

Cooperation with a law firm during bankruptcy proceedings

At RBBC, we have been supporting both individuals declaring consumer bankruptcy and entrepreneurs going through formal bankruptcy proceedings for years. We also handle cases where the bankruptcy of one party affects the joint property of spouses. We know that filing a petition is only the beginning – it is equally important how the assets are analysed, how the joint assets are documented and whether the other spouse is properly prepared to deal with the trustee. We assist in completing documents, assessing the effects of property separation and determining whether the spouse should file claims against the bankruptcy estate.

During the proceedings, we act not only in the debtor’s interest, but also in a manner that minimises the risk of losses on the part of the spouse. We represent clients in their dealings with the trustee, support them in actions related to the exclusion of assets from the estate, respond to the actions of the proceedings authorities and ensure that procedures are followed. Especially in the case of joint property, it is important that all steps are well planned and synchronised. Are you planning to declare bankruptcy, but do not know how it will affect your joint property? Consult RBBC about your situation before making a decision.