It is not uncommon for individuals who have a connection with Poland to choose to undertake their divorce, property or children proceedings in the UK. Their family and living circumstances will dictate whether this is an option. It is certainly worth seeking early advice from a lawyer regarding your options as the choice of country in which proceedings take place may well be important, particularly in terms of the financial outcomes.
The Polish rules on division of property in a divorce are set out below. The English rules on financial arrangements in a divorce are set out in our financial settlements page.
The Polish Courts
The Polish courts have jurisdiction in relation to divorce, property and children proceedings if a defendant has a domicile or habitual residence in Poland. The concept of domicile involves permanent location of the party within Poland. Temporary absence will not affect domicile. A habitual residence may be a place where a person lives for any period of time. Polish courts have jurisdiction if;
- both spouses had their last domicile or their last habitual residence in Poland or if one of them still has domicile or habitual residence in Poland;
- the plaintiff spouse had for at least one year prior to commencing proceedings, domicile or habitual residence in Poland;
- the plaintiff spouse is a Polish citizen and had for at least six months prior to commencing proceedings, domicile or habitual residence in Poland; or
- both spouses are Polish citizens.
Just because a marriage took place in Poland, this does not mean that the Polish Courts necessarily have jurisdiction, and it does not mean that divorce proceedings have to be taken out in Poland. Because the UK and Poland are both parties to the Brussels II Regulation (EC) No 2201/2003, this means that whichever country proceedings are filed in first takes precedence, provided its jurisdictional requirements are met. This again underlines the importance of contacting a lawyer as early as possible.
On divorce, at the demand of one of the spouses, a Polish court will divide community property as long as the division does not cause undue delay to divorce proceedings.
Community property includes everything that has been acquired by the married couple or either spouse during the marriage, unless otherwise provided by statute. In particular, community property includes remuneration received from employment or other gainful activity of either spouse as well as the income from the community property and/or the separate property of either spouse.
Separate property consists of property acquired by either spouse prior to the establishment of the community property system. For all practical purposes, this means that all pre-marital property remains separate.
Household appliances used by both spouses also form part of the community property if they were acquired by inheritance, bequest or donation, unless the testator or donor stipulated otherwise.
The court has a substantial range of possibilities with respect to structuring a division of community property. The court can award certain assets to one spouse and certain assets to the other, or order that it be sold and the money divided. Each spouse should receive assets of the same value. To equalise the division of assets, the value of individual shares can be compensated by additional cash payments. These payments can be spread out in instalments for a maximum period of ten years. However, each spouse could demand that the court establish different shares when dividing community property, taking into account each spouse’s contribution to the property. When assessing the degree of each spouse’s contribution to the property, the court will consider raising children and homemaking activities. The court will also consider the fault of the spouse in the breakdown of marriage.
There is a reciprocal obligation of spouses to support each other. Both spouses are obliged according to their strength, earning capacity and resources to contribute towards meeting the needs of the family founded by their marriage. On divorce this obligation ceases. The divorced spouse who has not been found exclusively guilty of the breakdown of marriage and who finds him/herself in poverty can demand the other spouse to provide maintenance within their earning capacity and resources, appropriate for the justified needs of the entitled spouse. Poverty should be understood as the state in which one cannot meet one’s own basic needs.
The divorced spouse found exclusively guilty of the breakdown of the marriage is not entitled to spousal maintenance. Regardless of whether the innocent spouse is in poverty or not, if their standard of living reduces slightly then the spouse found guilty is obliged to pay spousal maintenance. To decide whether the standard of living of the innocent spouse has deteriorated, the court will compare the financial situation after the divorce with the situation they would have been in prior to the divorce. The obligation to pay spousal maintenance expires only on death or remarriage of the innocent spouse.
If the ex-spouse has not been found guilty of the breakdown of marriage then his/her obligation to pay spousal maintenance expires after five years from the date of the divorce verdict, unless extended by the court at the request of the entitled spouse.
Poland is a party to the Hague Convention on the International Abduction of Children. It also is bound by the Brussels I and Brussels II Regulation (EC) No 2201/2003. The UK is a party to the same treaties. This means that if a child is taken from Poland to the UK without both parents agreeing or permission of a Polish Court the Courts in the UK will treat that as a child abduction. Likewise if a child who is habitually resident in the UK is removed to Poland without the agreement of both parents or permission of the Court, the Polish Courts will treat that as a child abduction and return the child to England. There are only very limited defences to applications for return. On divorce, the court must determine custody over the minor children.
The court takes into account the agreement of the spouses on exercising parental responsibility and visitations if it is in the best interest of the child. Siblings should not be separated unless in the children’s best interest. The court can designate one parent as the custodial parent, limiting the parental responsibility of the second parent to specific rights and duties in relation to the child, for example, participation in decision-making concerning the child’s education, health and religious upbringing.
In determining custody in divorce proceedings, the gender of the parent still seems to be one of the most important factors. The courts favour mothers of young children. The preference for the mother as custodian especially of younger children is traditionally explained by the alleged existence of the greater emotional commitment of women to children. However, this may in time produce a conflict with the EU regulation requirement.
Regardless of parental responsibility, the parent and child have the right and duty to maintain contact with each other. If the parents are not able to reach an agreement to maintain contact, the court will decide on visitation rights. Contact with the child can include, visiting the child, taking the child outside his place of residence, direct and distant communication and maintaining correspondence. In extreme situations where the visit could seriously endanger the child, the court can deny the right of visitation.
Conflict of Law
When one of the parties applies to stay proceedings in favour of a foreign jurisdiction, the Polish court will consider both the Polish Code of Civil Procedure and any relevant European Regulations, such as Brussels II, or international agreements signed by Poland that relate to the relevant issues. If one of the parties in divorce proceedings applies for a change of jurisdiction in favour of one of the other member states of the European Union, the Polish courts will take into account matters concerning jurisdiction, the enforcement of judgements in matrimonial matters and the issue of parental responsibility.
Rather the same kind of rules apply in the UK. Possibly the country where proceedings were first filed will take precedence pursuant to the Brussels II Regulation (described above) or other matters may be taken into account by the Courts in the UK.
What this means in practice is that if you have competing Court proceedings in both countries, there has to be a careful look at all the surrounding issues such as whether there was jurisdiction for those proceedings, which was first, what the proceedings relate to, and whether the rules that would allow you to stay one or other country’s proceedings will apply.
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