Legal Eye: 'Til debt do us part
One of my partners recently brought to my attention important changes concerning transactions with married persons. As of January 20, 2005, the Family Code contains a new set of rules on spousal consent for transactions. These rules apply not only to consumer transactions, but to small businesses as well.
I consider myself very fortunate that my husband and I have similar taste. In nearly a decade of marriage, we have disagreed on only a handful of larger purchases. In accordance, though, with the adage that contracts and law are meant to protect when matters go awry, the Family Code delineates the types of transactions for which you need spousal consent and states the consequences if the spouse refuses to give consent.
Consent required
The list of the transactions requiring spousal consent is fairly short and to the point. It includes the purchase, sale, mortgaging or renting of land, houses or apartments, sale or purchase of a small business or working farm, and the granting of larger gifts (such as a property, a car or a portfolio of stocks). The consent may be given immediately or afterwards.
Let's say my husband decides to buy a vacation house in Zakopane. The owner would be wise to set a deadline for obtaining my consent. If I sign, the transaction becomes valid, and Sergiusz has another excuse to go skiing. If I refuse to sign, the transaction is void. It is possible for a spouse to request a court to issue a consent if the transaction is necessary for the good of the family. However attractive a vacation home is, it probably would not meet the "necessity" threshold, particularly as I am not fond of skiing.
Single signature consequences
All other transactions do not require the consent of the other spouse. Sounds easy? Well, lawyers would quickly be out of jobs if it were so. Although no consent is required, the consequences of not obtaining the consent of the other spouse can be significant.
Let's say that in a moment of madness I decide to buy a new red Jaguar convertible on credit, despite my husband's objection. If the dealership could have found out in advance about Sergiusz's objections, the payment obligation only burdens me, not our joint marital assets. If I fail to pay, the car dealership could only collect from my personal assets, such as my pre-marital savings, my salary or other separate income.
On the other end of the spectrum, let's say that I decide to go on a raw food diet and stock the refrigerator solely with carrots, broccoli, sprouts and whole-grains. Sergiusz may be unhappy about the lack of a hearty meal, but he cannot object to more broccoli. A spouse may not object to transactions involving everyday household goods or satisfying normal family needs.
Small businesses
Finally, a spouse's consent is not required for a small business owner to enter into transactions, unless it is one of the types of transactions that absolutely require spousal consent. Thus, a small business owner could decide to buy a Jaguar as a company car, despite spousal objections.
The moral of this tale is when in doubt, have both spouses sign contracts for larger transactions, or at least don't ignore the grumblings of your better half.
Judith Gliniecki is the managing partner of Rymar and Partners
I consider myself very fortunate that my husband and I have similar taste. In nearly a decade of marriage, we have disagreed on only a handful of larger purchases. In accordance, though, with the adage that contracts and law are meant to protect when matters go awry, the Family Code delineates the types of transactions for which you need spousal consent and states the consequences if the spouse refuses to give consent.
Consent required
The list of the transactions requiring spousal consent is fairly short and to the point. It includes the purchase, sale, mortgaging or renting of land, houses or apartments, sale or purchase of a small business or working farm, and the granting of larger gifts (such as a property, a car or a portfolio of stocks). The consent may be given immediately or afterwards.
Let's say my husband decides to buy a vacation house in Zakopane. The owner would be wise to set a deadline for obtaining my consent. If I sign, the transaction becomes valid, and Sergiusz has another excuse to go skiing. If I refuse to sign, the transaction is void. It is possible for a spouse to request a court to issue a consent if the transaction is necessary for the good of the family. However attractive a vacation home is, it probably would not meet the "necessity" threshold, particularly as I am not fond of skiing.
Single signature consequences
All other transactions do not require the consent of the other spouse. Sounds easy? Well, lawyers would quickly be out of jobs if it were so. Although no consent is required, the consequences of not obtaining the consent of the other spouse can be significant.
Let's say that in a moment of madness I decide to buy a new red Jaguar convertible on credit, despite my husband's objection. If the dealership could have found out in advance about Sergiusz's objections, the payment obligation only burdens me, not our joint marital assets. If I fail to pay, the car dealership could only collect from my personal assets, such as my pre-marital savings, my salary or other separate income.
On the other end of the spectrum, let's say that I decide to go on a raw food diet and stock the refrigerator solely with carrots, broccoli, sprouts and whole-grains. Sergiusz may be unhappy about the lack of a hearty meal, but he cannot object to more broccoli. A spouse may not object to transactions involving everyday household goods or satisfying normal family needs.
Small businesses
Finally, a spouse's consent is not required for a small business owner to enter into transactions, unless it is one of the types of transactions that absolutely require spousal consent. Thus, a small business owner could decide to buy a Jaguar as a company car, despite spousal objections.
The moral of this tale is when in doubt, have both spouses sign contracts for larger transactions, or at least don't ignore the grumblings of your better half.
Judith Gliniecki is the managing partner of Rymar and Partners
