Divorce of citizens of different countries falls into the category of cases with a foreign element. This means that before resolving such a case, it is necessary to assess which country’s law should be applied to it. The answers to the question about applicable law are provided by the provisions of private international law. Poland is a party to numerous bilateral international agreements that contain such provisions in relation to matters between citizens of Poland and another country. One of the countries with which Poland has concluded such an agreement is the Republic of Belarus – this is the Agreement between the Republic of Poland and the Republic of Belarus on legal assistance and legal relations in civil, family, labor and criminal matters, drawn up in Minsk on October 26, 1994. It is applied, among others, in divorce cases of spouses, one of whom is a Polish citizen and the other a Belarusian citizen.
Law and authority competent in the case
Pursuant to Art. 28 of the above-mentioned agreement, the law of the country of the country of citizenship of both spouses at the time of initiating the proceedings (i.e. filing for divorce) has priority in divorce cases – for example, if a citizen of Belarus is recognized as a Polish citizen based on the fact of being in a relationship married to a Polish citizen and from now on will have dual citizenship, then Polish law will be applicable to the divorce case. The case will then be heard before the court of the country of common citizenship of the spouses. The exception is the situation when the spouses live in a country other than the one whose citizenship they share – then the law of the other country applies and its authorities will be competent to conduct divorce proceedings.
If the spouses do not have common nationality, the decisive factor for determining the law applicable to the divorce, as well as the competent authority before which the proceedings should be brought, will be their common place of residence (thus, if the spouses live in the same country, the law of that country applies). state and its authorities will carry out the proceedings). Finally, if the spouses live in the territory of two different countries, both Polish and Belarusian authorities will be entitled to conduct divorce proceedings. The decisive factor will be which of them one of the spouses turns to first. The law applicable to the divorce will be the law of the country in which the divorce proceedings will take place (so in the situation in question, if the lawsuit was filed in a Polish court, Polish law would apply).
An important issue is that the court competent to rule on divorce is also competent to rule on parental authority and alimony for children who are under 18 years of age.
Service of procedural documents
The authority of the country in which divorce proceedings are pending may, if necessary, apply to the competent authority of the other country (of which one of the spouses is a citizen) to provide legal assistance, for example in the matter of serving documents to the party to the proceedings (one of the spouses). The authority requested to provide legal assistance serves documents in accordance with the legal provisions in force in its country, if the documents served were prepared in the official language of that country or if their certified translation is attached. Otherwise, it will serve the documents on the party only if he voluntarily accepts them.
Recognition of documents
Importantly, documents drawn up or authenticated in the appropriate form by the competent authority of one of the countries, bearing the official seal and signature of the authorized person, have evidentiary value in the territory of the other country without the need for legalization. This also applies to copies and translations of documents certified by the competent authority. Moreover, documents that are treated as official documents in the territory of one country are also considered as such in the territory of the other country.