Divorce and separation in Poland

Polish law provides for the possibility of a Polish citizen obtaining a divorce outside the country. The procedure for recognizing a divorce judgment issued by a foreign court depends on the date of its issuance and whether it was issued by a court of a Member State of the European Union or by a court of a non-EU country. Polish law provides for separate procedures allowing for the recognition of this judgment in Poland:

Divorce judgments handed down by the courts of the EU Member States

In the case of countries that are members of the European Union, these countries are obliged to automatically recognize divorce judgments under the Regulation of the Council of Europe No. 2201/2003 of November 27 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility.

Therefore, in the case of a divorce adjudicated in the territory of the European Union after the date of Poland's accession to it, i.e. 1 May 2004, it is not required to conduct proceedings before a Polish court in order to recognize the divorce judgment. In these cases, it is enough to register the divorce with the Registry Office.

Divorce judgments issued by courts of non-EU countries after 1 July 2009

The so-called The 1970 Hague Convention for the Recognition of Divorce and Separation. Article 17 of the Convention states that: "This Convention shall not prevent the application in a Contracting State of provisions of law more favorable to the recognition of foreign divorce and legal separation decisions."

Thus, the decisions of the authorities of these countries on divorce and separation issued since 2 July 2009 may also be recognized under the simpler procedure of the Code of Civil Procedure. In practice, this means that they are also directly recognized by the Polish authorities and are only subject to the registration procedure that can be carried out in Poland at the Registry Office.

Divorce judgments issued by courts of EU Member States before May 1, 2004 or by courts of other states before July 1, 2009

These judgments may only be recognized on the territory of Poland as a result of proceedings in a regional court. They are carried out in the court having jurisdiction over the current or last place of residence.

It is worth noting that an application for recognition of a judgment together with attachments may be submitted:

• personally,
• through persons residing in Poland (in this case, an additional power of attorney must be submitted),
• by sending documents directly to the address of the relevant Civil Registry Office of the place where the marriage certificate was drawn up.

Cases with an international element are an exception to the rule resulting from the Code of Civil Procedure, which requires that in all matters relating to the family, i.e. parental authority, contacts and maintenance for the former spouse or joint minor children of the spouses, the same court should rule. In these cases, the court should first determine whether it has the right to decide substantively.

It is worth noting that the court may have full jurisdiction (then it adjudicates both in matrimonial matters, as well as on parental responsibility and maintenance), partially or not at all.

The act governing jurisdiction in matrimonial matters and in matters of parental responsibility in the EU Member States is Council Regulation (EC) No 2201/2003 of 27 November 2003 (known as the Brussels IIa Regulation).

This regulation deals separately with jurisdiction over matters relating to the dissolution of marriage from jurisdiction over matters relating to children.

Jurisdiction to dissolve a marriage:

According to Art. 3 of the Brussels IIa Regulation, in matters relating to divorce, legal separation or marriage annulment, the courts of the EU Member State on whose territory:

• both spouses are habitually resident,
• both spouses were most recently habitually resident and one of them is still habitually resident there,
• the other party is habitually resident,
• in the event of a joint action or petition, one of the spouses is habitually resident,
• the plaintiff or the applicant is habitually resident if he or she stayed there for at least one year immediately before filing the claim or application,
• the plaintiff or applicant is habitually resident there for at least six months immediately prior to the lodging of the claim or application and is a national of the Member State concerned or, in the case of the United Kingdom and Ireland, has a domicile there.

To determine jurisdiction, the time at which the petition is filed is taken into account, i.e. it is important that the spouses are domiciled in the country at the time the petition for divorce is filed.

Jurisdiction over parental responsibility:

According to Art. According to Article 8 of Regulation No 2201/2003, jurisdiction in matters of parental responsibility is determined on the basis of the ordinary place with exceptions:

• o where the child lawfully moves from one Member State to another, the jurisdiction of the courts of the state of previous habitual residence is maintained for the first three months;
• o in the event of an unlawful change of the child's habitual residence, jurisdiction lies with the court in whose territory the child was habitually resident immediately before the wrongful removal;
• adjudication on parental responsibility is linked to adjudication on divorce.

Jurisdiction to determine the maintenance obligation:

The courts which have jurisdiction to hear matters relating to maintenance obligations are either the court for the place where the defendant is habitually resident or the court for the place where the creditor is habitually resident. Jurisdiction to lay down a maintenance obligation lies with the same court as that relating to parental responsibility if the determination of a maintenance obligation is a consequence of a judgment on that responsibility.

It is significant that the grounds of jurisdiction in matters of parental responsibility laid down in the regulation are shaped in accordance with the principle of the best interests of the child, in particular the criterion of proximity. This means that jurisdiction should lie primarily with the courts of the Member States of the child's habitual residence, except in some cases of a change of the child's place of residence or following an agreement between the holders of parental responsibility.

Jurisdiction in non-EU cases

In matters relating to citizens of non-EU countries, the provisions of the Code of Civil Procedure apply.

According to Art. 11031 § 2 of the Code of Civil Procedure the jurisdiction of Polish courts in matrimonial matters and in matters relating to matrimonial property relations is exclusive when three conditions apply simultaneously:

1. the spouses are Polish citizens,
2. the spouses are domiciled in Poland,
3. the spouses have their habitual residence in Poland.

Matrimonial matters and matters relating to matrimonial property relations also fall within national jurisdiction if at least one of the following conditions is met:

1. both spouses had the last place of residence or the last place of habitual residence in the Republic of Poland, if one of them is still domiciled or habitually resident in the Republic of Poland,
2. the spouse who is the plaintiff has a place of residence or habitual residence in the Republic of Poland for at least one year immediately prior to the initiation of the proceedings,
3. the spouse who is the claimant is a Polish citizen and has been domiciled or habitually resident in the Republic of Poland for at least six months immediately prior to the initiation of the proceedings,
4. both spouses are Polish citizens.