This article will be helpful for foreigners who are married to a Polish citizen.
In recent years, due to globalization, migration and the freedom of movement within the EU, the number of mixed marriages has significantly increased.
Such marriages can be a big challenge because of cultural differences, separation with one spouse’s family, and others problems which sometimes result in separation or even divorce.
Which law is relevant? Where can you file for divorce?
There are two important issues – court jurisdiction and the legal system. Sometimes it is possible to file for divorce in several countries – in this case, it is the petitioner (spouse who is filing for divorce) who chooses the court.
In order to answer these questions we should refer to the provisions of international civil procedure, to the Polish Code of civil procedure and international agreement ratified by Poland. The EU Member States must comply with 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, repealing Regulation (EC) No 1347/2000. This regulation takes priority over domestic provisions.
We should not forget that Council Regulation (EC) No 2201/2003 doesn’t cover the marital property regime.
According to Article 3 Council Regulation (EC) No 2201/2003
- In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State
(a) in whose territory:
— 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 applicant 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 or, in the case of the United Kingdom and Ireland, has his or her ‘domicile’ there;
(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the ‘domicile’ of both spouses.
John and Anna have been married since six years. Anna is a Polish citizen and John is a British citizen. In 2011 Anna moved to England where they had been living together until 2015. Anna decided to came back to Poland where she has been staying until today. Anna intend to file for divorce – in which country should she file a petition?
The following requirements are met:
- the spouses were last habitually resident, insofar as one of them still resides there (England)
- the respondent is habitually resident (England)
- 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 or, in the case of the United Kingdom and Ireland, has his or her ‘domicile’ there; (Poland)
Therefor Anna can decide wheter she would file for divorce in England (point one and two) or in Poland (point three), referring to point number 3, i.e. polish citizenship of spouses.
- For the purpose of this Regulation, ‘domicile’ shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland.
If application of this Regulation is unjustified, the divorce case (and the issue of custody) will be heard by the Polish court if:
- – last domicile of spouses or their habitual residency are in Poland, given that one of them has still the place of residence or place of habitual residence in Poland
- – the petitioner has been a resident or a habitual resident in Poland for at least one year directly before the start of the proceedings
- – petitioner is a Polish citizen and has been resident or habitual resident in Poland for at least six months directly before start of the proceedings
- – both spouses are Polish citizens
If you would like to learn which law is relevant in your divorce case, follow my blog – an article about it will be published soon.
Solicitor / Attorney