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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.

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.

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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