Foreigners getting divorced in Poland are no more an extraordinary situation. Amount of foreigners getting divorced in Poland with Polish partners keeps growing.
Foreigners getting divorced in Poland are not just a question of language barrier. The most important question is to choose the right court and applicale law in order to disolve the marriage.
Whenever there is a foreigner married to a Polish citizen, first we need to establish the applicable law.
As per Art. 54 of private international law of 4 February 2011 (Dz. U. Nr 80 poz 432) in case of lack of common national law of the spouses, the applicable law will be the law of the country in which both spouses have had their place of residence at the moment the dissolution of the marriage was requested. If the spouses do not have joined place of residence at the moment the dissolution of the marriage was requested, the applicable law will be the law of the country where the souses used to have their last joined place of living assuming that one of them still has his/her place of living there. In case of lack of the above mentioned the applicable law will be Polish law.
However, pursuant to the Council Regulation 1259/2010 of 20 December 2010 on the implementation of enhanced cooperation in the area of the law applicable to divorce and legal separation, it is permitted that the spouses choose the applicable law in case of divorce or legal separation. The option to choose the applicable law is not unlimited. The spouses may choose the law governing the country of residence or the country of last residence assuming that one of them still has been residing at the place. This regulation is currently applicable in Belgium, Bulgaria, germany, France, Portugal, Spain, Italy, Malta, Latvia, Luxembourg, Hungary, Austria, Romania and Slovenia.
Poland is not a party to this regulation. Therefore, in case of divorce of for example a Dutch- Polish couple the provision of this regulation will not apply. In such situation, one would need to follow domestic regulation which may not give the oportunity to choose the applicable law.
Foreigners getting divorced in Poland – how to determine jurisdiction of a court
The other important question which foreigners getting divorced in Poland need to discuss is the court juristiction. In this regards, one shall apply EU Council Regulation No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgement in matrimonial matters and the matters of parental responsibility.
According to this law, in the cases of divorce, separation and marriage annulement the courts of a specific Member State of the European Union will have jurisdiction on the territory of which the spouses have their usual residence or the opposing party has his/her usual residence or the requesting party has the usual residence, if the requesting party lived there for at least one year immidiately before submitting the request to divorce or for at least 6 months immidiately before submitting the reuest to divorce and the requesting party is citizen of the specific EU member State or in the case of the United Kingdom and Irelnad where the party is domiciled.
It must be clear emphasized that the above mentioned considerations apply to citizens of the European Union.
Foreigners getting divorced in Poland who are not citizens of an European Union Member State
Is of the spouses not a citizen of the European Union Member State the above mentioned regulations will not apply.
In case of divorce of international couples from outside the EU in terms of jurisdiction will apply the provisions of the Code of Civil Procedures (art. 1103 and art. 1103 (1)). The conent of which is identical to art. 3 para 1 EU Council Regulation 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.
For the applicability of the law the provisions of art. 54 of private international law shall be applied in the same way as in case of marriages between citizens of the EU.
It should be underlined that filing for divorce in violation of the above mentioned regulations will result in dismissing the application for divorce. Thus it won’t be possible to consider the case in terms of content-related arguments. However, the requesting party shall still be charged with proceeding cost.
So, it seems to be very important to consult your decision to apply for divorce with a law firm specializing in divorce proceedings with cross-border element.