Today a marriage between a Polish citizen to a foreign national is not unusual. As a result divorce cases in which one of the parties is a foreign national appear more frequently in court hearings. I have had the opportunity to conduct several of these cases, in today’s post I would like to answer a few questions most often raised by those who decide to separate.
IN WHICH COUNTRY SHOULD THE PROCEEDING TAKE PLACE?
If the spouses are Polish citizens and reside in Poland , the location is simple. The situation is different in the case of divorcing a foreign national. It is also necessary to determine if one of the plaintiffs is a European National or not.
DIVORCE FROM A CITIZEN OF AN EU MEMBER STATE
In order to determine which country the proceedings should take place in, the case of divorce with a citizen of a European Union Member State, refer to Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. Pursuant to the above mentioned Council Regulation, the competent courts are the courts of the Member State in the territory of which:
- • the spouses are habitually resident, or
- • the spouses were last habitually resident, insofar as one of them still resides there, or
- • the respondent is habitually resident, or
- • in the event of a joint application, either of the spouses is habitually resident, or
- • the plaintiff is habitually resident if he or she resided there for at least a year immediately before the application was made, or
- • the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question.
DIVORCE FROM A NON-EU CITIZEN
If the spouse is a from outside of the European Union, then when determining the country in which the court proceedings take place, one should refer to the provisions of the polish Code of Civil Procedure. According to Art. 1103 (1) of the Code of Civil Procedure the Polish court will be competent if:
- • the last place of residence or usual stay of both spouses was in Poland, or if one of the spouses still has his/her place of residence or usual stay in Poland, or
- • the plaintiff had his/her place of residence or usual stay in Poland for at least one year prior to the commencement of proceedings, or
- • the plaintiff is a Polish citizen and had his/her place of residence or usual stay in Poland for at least six months prior to the commencement of proceedings. Please note the divorce case may also be pending in another country. In a situation where the plaintiff applies for divorce in different country, then it is important to which country the proceeding where initiated as this is where the case will be heard.
APPLICABLE LAW FOR A DIVORCE FROM A FOREIGN NATIONAL
Finding that a divorce case can be pending before a Polish court does not mean that the court will always apply Polish law. It may happen that, in accordance with the above rules, the case will be referred to a Polish court, but the substantive law of another country will also apply.
Pursuant to the rules of private international law, dissolution of marriage is a subject to the common domestic law of the spouses at the time of the request to dissolve the marriage. In the absence of the common domestic law of the spouses, the applicable law is the law of the state in which both spouses have their domicile at the time of requesting dissolution of the marriage, and if the spouses do not have a joint domicile at the time of requesting dissolution of the marriage - the law of the state in which both spouses last had their common domicile, if one of them still habitually resides there. If the applicable law cannot be determined according to the above rules, Polish law applies to dissolution of the marriage.
Do you need additional legal assistance? Do you have further questions? I am available for your consultation!
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