Divorce with cross-border assets in the EU

Divorce with cross-border assets is without any doubts of the utmost importance for many international coupes having their property in different countries of the EU. The principal questions to be settled in this respect are the following:

  • the court of which country has jurisdiction in the particular case,
  • which law is to be applicable.

Sixteen EU states  including Germany, Spain, Czech Republic, Italy, the Netherlands wishing to establish an enhanced cooperation in these matters initiated the creation of COUNCIL REGULATION (EU) 2016/1103 implementing enhanced cooperation in the area of jurisdiction, applicable law and recognition and enforcement of decisions in matters of matrimonial property regimes.

Divorce with cross-border assets – which country has its jurisdiction under Regulation 2016/1103?

The general rule reflected in Article 5 of the Regulation envisages that the court of a Member State, which is seized to rule on an application for divorce, legal separation or marriage annulment, has also jurisdiction in cases related to matrimonial property division. However, it might be so that no court has been seized to rule on a divorce matter. Then the jurisdiction will consequently lie (according to article 6) with the courts of those member states:

  • in whose territory the spouses are habitually resident at the time the court is seized, if no
  • in whose territory the spouses were last habitually resident, in case one of the spouses still lives there, if no
  • in whose territory the respondent is habitually resident at the time the court is seized, if no
  • of the spouses’ common nationality at the time the court is seised.

It should be admitted that pursuant to article 7 the parties may agree that jurisdiction lies within the court of a MS where the marriage has been concluded or of a MS which law is applicable under the described Regulation. Moreover, article 9 of the Regulation gives a chance to decline jurisdiction, if the marriage in question is not recognised in a MS for the purposes of matrimonial property regime proceedings. In that case according to Article 9(2), the parties might choose a court in another MS.

However, even if no state has its jurisdiction under the provisions mentioned above, the factor of immoveable property location comes on the scene. Article 10 gives jurisdiction to courts of that  MS where immoveable property of one or both spouses is located.

Divorce with cross-border assets  – which law should be applicable under Regulation 2016/1103?

As for the law applicable in such proceedings, two major options are available. Firstly, according to article 22, the spouses are entitled to choose the law applicable for matrimonial property matters. That law might be the law of the country where they (or at least one of them) are habitually resident or of the country of their nationality (or nationality of at least one of them). In absence of the choice, the following option arises. The applicable law in such situation is the law of the State (1) of the spouses’ first common habitual residence after the conclusion of their marriage; or, failing that, (2) of the spouses’ common nationality at the time of the conclusion of their marriage; or, failing that, 3) of the State with which the spouses jointly had the closest connections at the time of the conclusion of their marriage.

Divorce with cross-border assets  –  what in case of countries countries, such as Poland, which are not parties to the Regulation?

It should be taken into account that 12 EU states including Poland, UK, Denmark, Estonia, Lithuania, Latvia, Hungary, Ireland, Romania and Slovakia are not parties to the Regulation and, hence, its provisions are not applicable in the mentioned countries. In case of Polish citizens facing divorce and having common property in different countries, the key point in matters of applicable law and jurisdiction is in which particular country the property is.  The matrimonial property regime after divorce might vary depending on the fact, whether Poland has agreements with the state on the matter. Anyway, the provisions of Polish international private law should be taken into account.

Divorce with cross-border assets – Article 1103 of the Polish code of civil procedure

Article 1103 of the Polish code of civil procedure mentions the cases where jurisdiction in matters of matrimonial property is vested in Polish courts. It covers situations in which both spouses have Polish citizenship, or both of them lived in Poland and one of the spouses still remains there, or the claimant habitually resident in Poland (and has been living in Poland at least for a year before the start of  proceedings) or has Polish citizenship (and lives in Poland at least for half a year before the start of  proceedings). Article 1106 adds to this provision that the jurisdiction should be given to Polish courts in case if a significant part of the matrimonial property is located in Poland.

As for applicable law on the matter, the Polish Act on International Private Law (Article 51) states that the applicable law is the law of the country where the spouses are residing or (if they are residing in different states) of the country with which both spouses have the closest ties.

In any case, the issues related to divorce with cross-border assets, i.e.  matrimonial property division in situations where the property is in different states,  are quite intricate for the countries, which are not parties to the Regulation, and require expert advice.

Child abduction case dismissed by court in Poland – legal chances to return the child to another EU country

Child abduction case dismissed by court in Poland – Are there any legal chances to return the child abducted to another EU country?

It goes without saying, that for international couples the issues related to their common children are of vital importance. Unfortunately, even very strong marriage ties sometimes tend to break causing a wave of clashes and legal disputes between former spouses. In practice, it happens quite often that one of the spouses leaves the country with his or her child without any prior consent from another spouse. In such a case the Hague Convention on the Civil Aspects of International Child Abduction comes on the scene and can be applicable (more than 100 countries of the world are parties to this Convention). A spouse is entitled to lodge a claim for the return of the unlawfully removed child before the competent court of the country where his or her child is retained. That fact causes a question: are there any possibilities to get back the child if such a claim has been dismissed.

Child abduction case dismissed by court in Poland  – how to have the child returned ?

Apart from an appeal procedure within a country’s domestic legal system there is a certain mechanism at the European Union level which might help to get your child back. Such mechanism exists pursuant to the Brussels II Regulation (EC) No 2201/2003, and obliges the court deciding to refuse the return of the child on the basis of Hague Convention to transmit a copy of the decision to the competent court of the country of the child’s habitual residence before the abduction took place (article 11(6) of the mentioned Regulation). This rule is applied even in case there are parallel proceedings on the child’s custody in both countries and, despite the fact, the non-return decision might be appealed.

The court of a former habitual residence of the child receives the documents and invites the parties to make submissions within 3 months. Then, there are two opportunities: either none of the parties submits the comments and the case is closed, or at least one party submits the comments as to the effects and the court examines the case on the merits.

The court of the place of former habitual residence of the child might decide to return the child to the referring spouse. The decision of the court is accompanied by a special certificate and is recognizable in the whole Union. However, the court’s decision might not entail the return of the child. In that case the courts of the country where the child is retained take the jurisdiction.

Child abduction case dismissed by court in Poland  – Enforceability of the judgement on returning the child in another country.

It should be admitted that due to the Brussels II Regulation (particularly article 11 paragraph 8) all the  judgments requiring the return of the child and made by the competent court are recognizable and enforceable throughout the EU. This provision is applicable to the cases where, firstly, the return of the child has been refused by the court under article 13 of the Hague Convention.

It means that the non-return decision and even failed appeal of that decision in one state does not deprive the applicant of chances to get back the child.

In practice, the cases connected with the abduction of the child and retaining him or her in another country might be quite complicated and stressful. That is why in such situations it is especially important to consult a lawyer competent in international family law as soon as you can.

Online legal advice for foreigners in Poland

Online legal advice for foreigners in Poland: as a convenience to our clients, we started providing online legal service to foreigners facing legal problems in Poland.

We offer online legal advice for foreigners in Poland in a more convenient than before way. It is quicker and cheaper. You do not need to come to our office to talk to us, however, you are always welcome to do so.

If you need urgent legal advice in Poland, we are here to service you. Our lawyers welcome all clients in need of a consultancy in Polish law.

Whether it is a family law, inheritance case, debt collection, criminal case or do you need legal support for your litigation case in Poland, we are here to support you.

How it works? Here are few  easy steps:

  1. Communicate your problem by eMail or phone call
  2. We send you quotation via PayPal
  3. You accept our quotation or give us your feedback and / or counter-offer
  4. You make the payment
  5. We schedule an online appointment within 12 – 24 hours.
  6. We are available 10 AM – 6 PM, Monday – Friday. Appointments on late evening hours ( 6 PM – 10 PM), weekends and bank holidays can be booked in advance or on the same day subject to availability

Recordings in a divorce case in Poland. Can the other party use them?

Recordings in a divorce case in Poland – our clients often ask whether they could  be used gainst them.

The issue of recordings in a divorce case in Poland and the admissibility of referring to recordings in  civil proceedings being a divorce case made by either party or both parties appears more and more often.  This issue generally applies to wiretapped recordings.

Recordings in a divorce case in Poland – the latest judgment of the Supreme Court

The Supreme Court has been repeatedly analyzing the problem of using such recordings. The latest judgment was issued on  April 22, 2016 (file number II CSK 478/15). It  confirms the overwhelming trend in allowing such evidence by courts. In this verdict, we read that the recording might be used as evidence in court. This is provided that the circumstances in which the recording took place do not indicate a serious violation of the principles of social coexistence. At the same time, the court pointed out that the taking of such evidence should be justified by the need to guarantee another person the right to a fair trial.

Recordings in a divorce case in Poland  – Supreme Court opinion

The Supreme Court takes the view that evidence from secret recordings cannot be disqualified in advance. Such evidence, however, requires a fair assessment to determine whether the recording, due to its content and method of acquisition, will not violate the privacy rights of the recorded person. The recorded person’s right to privacy is guaranteed by Article 47 of the Constitution. If such recording violates the privacy rights of the recorded person, then it should be considered whether the violation of this right may be justified by the need to ensure that another person has the right to a fair trial. The right to a fair trial is also guaranteed in the Constitution, in Art. 45.

Recordings in a divorce case in Poland – which circumstances may disqualify a recording?

Exceptionally, certain circumstances in which the recording took place may disqualify evidence from a recording in a divorce case in Poland. If they clearly indicate a serious violation of the principles of social coexistence, e.g. by the unacceptable use of a difficult situation (e.g. difficult family or professional situation), mental or physical condition (e.g. nervous breakdown, depression) of the person with whom the conversation was conducted.

Recordings in a divorce case in Poland – what is the actual value of recordings?

Evidence carried out in the course of proceedings should be assessed in terms of its factual value. An element of the recording such as its integrity or continuity should be subject to evaluation. Lack of continuity may not necessarily mean the manipulate  of its content. It should be assessed here whether the lack of continuity is the result of a  deliberate manipulation or, for example, the effect of the recording activation mechanism. It should also be assessed whether the recording person has not directed the conversation in a specific way to persuade the recorded person to express certain phrases or to react. To carry out such an assessment, an opinion of court experts will be needed.

Court experts dealing with similar analyzes often work in teams to give  full picture of the recordings they have examined. These are teams consisting of philologists, speech therapists, psychologists and IT specialists. The role of the advocate  will be a fair use of expert opinions in a divorce case in Poland.

Child abduction in Poland – amendments to the provisions in cases for the return of a child under the Hague Convention

Child abduction in Poland is one of the most critical situations that can happen in a family. Child abduction in Poland is usually the result of a conflict between the child’s parent, very often after divorce. This conflict may last several months and sometimes several years.

The legislator in Poland dealt with the topic of child abduction in Poland. As a result of legislative work, the Act of 26 January 2018 on the performance of certain activities of the central body in family matters within the scope of legal transactions based on European Union law and international agreements was passed.

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Denying paternity in Poland. It is not my child.

Denying paternity in Poland may seem to be quite complecated as you need to comply with deadlines and procedures provided by the Polish law.

As practically every claim, also denying paternity in Poland is time-limited.

Denying paternity in Poland – when?

The husband of the child’ mother may file a pettition for denying paternity in Poland within six months from the moment he got to know that his wife has given birth to a child. It results from art. 63 of the Family and Guardianship Code. Assuming that the husband and wife live together, it will be a period of six months from the date of birth of the child. It may happen that the couple does not live together and remains in a formal relationship but does not decide to apply for divorce. In this situation, the husband of the child’ mother will have to prove that he did not know about the birth of the child or that he got to know about it with delay.

In Poland, if a child is born during a marriage, the husband is presumed to be its father. This is pursuant to art. 62 § 1 of the Family and Guardianship Code. The presumption rule is valid 300 days after the termination or annulemt of the marriage, too. The principle of presumption of paternity is not valid in the case of legal separation.

Who can deny paternity in Poland?

Legal action can be brought by the alleged father. The alleged father sues both the child and its mother. Legal action for denying paternity in Poland can be brought by child’ mother, too. She sues both her husband and the child. The child may bring an action for denying paternity in Poland, too. Children can do it when they come of age and for the period of three years.

Denying paternity in Poland many years later

What can do the husband of the child’ mother if he finds out after many years that he is most likely not the father of the child he has been bringing up and financially supporting?

The solution might be art. 86 of the Family and Guardianship Code, according to which the legal action for denial of paternity in Poland might also be brought by the prosecutor. The prosecutor is not bound by any deadline, i.e. the expiration of the six-months-period is not relevant.  However, there is a not so small „but”. The prosecutor is to uphold the ebservance of the law. The prosecutor neither represents the child not the father not the aleged father.

Based on art. 7, the prosecutor can initiate proceedings in case it is required by law and order, citizens’ rights or public interest. The prosecutor may refuse to initiate proceedings for denial of paternity. This may happen if she or he would consider it to be for example contrary social interest.

Submitting an application to the prosecutor’ office

While submitting your application to the prosecutor’ office, one should substanitate that he is not the biological father of the child. DNA test result should be enough to do so. In addition, you should use arguments that would support the positive decision of the prosecutor to initiate the proceeding to deny one’ paternity. You should formulate your  arguments from prosecutor’ point of view and not from father’ mother’ or child’ point of view.

Denyig paternity in Poland – when is it not possible?

Its is not possible after the death of the child or when the child was conceived as a result of a medical procedure. This assuming that the father of the child has consented for the procedure.

Judge refuses divorce in Poland – locked into marriage for ever?

Judge refuses divorce in Poland. It may happen even if your marriage is broken and  exists only on paper and you and your spouse already started your new life period with a new partners.

In Poland, the judge will not only have to decide whether the marriage is really broken. The judge will also indicate culpability of one or both of the spouses for the breakown of marriage.

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Purchase of agricultural land in Poland. Who can buy a property in Poland?

Purchase of agricultural land in Poland seems to be very attractive for many foreigners. However, the new law turned the market situation.

Conclusion of a preliminary sale agreement for agricultural land by  foreigners does not give them the right to enter into the final purchase  agreement  after a specified time without obtaining permission from the  appropriate authority, being Minister of Interior, according to  the amendment of the law after 30 April 2016.

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Denying visitation of child in Poland

Denying visitation of child in Poland is a quite common practice used by ex-spouses. It is their way to take revenge for breakdown of an relationship or divorce. Such situation applies usually to divorced fathers. Sometimes for years, they do not get to see their children. As reason they hear that the child „must learn for a test” or „went to visit grandparents” or „is sick”.

Denying visitation of a child in Poland cannot be a way of punishing an ex for divorce or separation. The main legal instrument that can prevent it from happening is a financial penalty.

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Foreigner facing criminal case in Poland

Foreigner facing criminal case in Poland should learn his rights while being involved in criminal case in Poland.

From year to year, we can see an increasing amount of foreigners engaging in business activities in Poland. Investments’ opportunities and quite liberal immigration policy encourage people from other countries to come to Poland. Having different cultural background, both legal and business like, may cause many foreigners to unknowingly break norms of Polish criminal law.

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