by Redaktor | May 3, 2024 | news-en
Pursuant to the judgment of the Court of Appeal in Lublin of November 21, 2019 (III AUa 912/18), separation decreed by the court may end as a result of dissolution of the marriage by divorce, annulment of the marriage or abolition of the separation by a court decision (Article 616 § 1 of the Family and Guardianship Code ). This judgment is constitutive, so the effects of separation cease only when the separation is abolished by the court (Article 616 § 2 of the Family and Guardianship Code). Therefore, the mere commencement of cohabitation by separated spouses does not result in its termination and the effects resulting from the judgment establishing separation continue.
by Redaktor | Apr 4, 2024 | news-en
Divorce of citizens of different countries falls into the category of cases with a foreign element. This means that before resolving such a case, it is necessary to assess which country's law should be applied to it. The answers to the question about applicable law are provided by the provisions of private international law. Poland is a party to numerous bilateral international agreements that contain such provisions in relation to matters between citizens of Poland and another country. One of the countries with which Poland has concluded such an agreement is the Republic of Belarus - this is the Agreement between the Republic of Poland and the Republic of Belarus on legal assistance and legal relations in civil, family, labor and criminal matters, drawn up in Minsk on October 26, 1994. It is applied, among others, in divorce cases of spouses, one of whom is a Polish citizen and the other a Belarusian citizen.
Law and authority competent in the case
Pursuant to Art. 28 of the above-mentioned agreement, the law of the country of the country of citizenship of both spouses at the time of initiating the proceedings (i.e. filing for divorce) has priority in divorce cases - for example, if a citizen of Belarus is recognized as a Polish citizen based on the fact of being in a relationship married to a Polish citizen and from now on will have dual citizenship, then Polish law will be applicable to the divorce case. The case will then be heard before the court of the country of common citizenship of the spouses. The exception is the situation when the spouses live in a country other than the one whose citizenship they share - then the law of the other country applies and its authorities will be competent to conduct divorce proceedings.
If the spouses do not have common nationality, the decisive factor for determining the law applicable to the divorce, as well as the competent authority before which the proceedings should be brought, will be their common place of residence (thus, if the spouses live in the same country, the law of that country applies). state and its authorities will carry out the proceedings). Finally, if the spouses live in the territory of two different countries, both Polish and Belarusian authorities will be entitled to conduct divorce proceedings. The decisive factor will be which of them one of the spouses turns to first. The law applicable to the divorce will be the law of the country in which the divorce proceedings will take place (so in the situation in question, if the lawsuit was filed in a Polish court, Polish law would apply).
An important issue is that the court competent to rule on divorce is also competent to rule on parental authority and alimony for children who are under 18 years of age.
Service of procedural documents
The authority of the country in which divorce proceedings are pending may, if necessary, apply to the competent authority of the other country (of which one of the spouses is a citizen) to provide legal assistance, for example in the matter of serving documents to the party to the proceedings (one of the spouses). The authority requested to provide legal assistance serves documents in accordance with the legal provisions in force in its country, if the documents served were prepared in the official language of that country or if their certified translation is attached. Otherwise, it will serve the documents on the party only if he voluntarily accepts them.
Recognition of documents
Importantly, documents drawn up or authenticated in the appropriate form by the competent authority of one of the countries, bearing the official seal and signature of the authorized person, have evidentiary value in the territory of the other country without the need for legalization. This also applies to copies and translations of documents certified by the competent authority. Moreover, documents that are treated as official documents in the territory of one country are also considered as such in the territory of the other country.
by Redaktor | Mar 4, 2024 | news-en
Pursuant to the judgment of the Court of Appeal in Szczecin of May 24, 2018 (III AUa 453/17), complete and permanent breakdown of marriage between spouses, pursuant to Art. 56 § 1 of the Family and Guardianship Code constitutes a condition for the court to dissolve the marriage by divorce, but it does not affect the issue of financial liability for contribution obligations towards ZUS, unless an agreement on the limitation of statutory community or on the establishment of separation of property has been previously concluded.
by Redaktor | Feb 2, 2024 | news-en
One of the problems related to emigration is the issue of divorce outside Poland. Questions may arise as to whether a divorce decree issued abroad will have any effects in the Polish legal system. These questions concern not only the Polish legal order, but all countries in the world.
However, due to the free movement of people, this problem is particularly relevant for European Union citizens. Therefore, this issue was regulated at the EU level by means of a regulation, i.e. an act binding on all EU member states.
These issues are regulated by Regulation 2019/1111 of the Council of the European Union of 25 June 2019 on jurisdiction, the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility and on international child abduction.
Pursuant to Art. 30 section 1 of the Regulation, the general principle is that a judgment given in one Member State is recognized in other Member States without the need for special proceedings.
As provided in section 2 does not require special proceedings for the purpose of making entries in the civil status registers of a Member State on the basis of a decision on divorce, separation or marriage annulment given in another Member State, against which no further appeal is available under the law of that Member State. (That is, from a judgment that has already become final.)
This means that a divorce judgment from a court of a Member State should, in principle, be recognized ex officio in every other Member State. Thanks to this, for example, it is possible to mention a divorce in a marriage certificate without any additional court procedure in Poland.
To effectively invoke a judgment given in another Member State, the following must be submitted to the national authority:
- copy of the judgment of a foreign court;
- certificate issued by a foreign court on an officially specified form.
The certificate is issued at the request of a party. They shall be completed and issued in the language in which the judgment was drawn up. The certificate may also be issued in another official language of the European Union institutions that one of the parties has requested, but the court is not obliged to do so.
Moreover, although the certificate is officially defined, the national authority before which such a certificate is presented may request the production of a sworn translation of the certificate as well as of the judgment itself.
The regulation also sets out the grounds for refusing to recognize a judgment of a court of another Member State. Recognition may be refused when:
- the recognition of such a judgment is manifestly contrary to the public policy of the Member State in which recognition is invoked;
- in the case of a judgment given in absentia - if the opposing party was not served with the document initiating the proceedings or an equivalent document in time and in a manner enabling it to prepare its defense, unless it is established that the opposing party unambiguously agreed with the judgment;
- if the judgment is irreconcilable with a judgment given in proceedings between the same parties in the Member State in which recognition is invoked; or
- if the judgment is irreconcilable with an earlier judgment given in another Member State or in a third State between the same parties, provided that the earlier judgment satisfies the conditions necessary for its recognition in the Member State in which recognition is invoked.
To sum up, in the event of dissolution of a marriage in another Member State (either a marriage concluded in Poland or abroad), the judgment of another Member State will, as a rule, have legal effects in the Polish legal space. Likewise, on the same principle, divorce judgments issued in Poland will be effective in other European Union member states.
by Redaktor | Jan 4, 2024 | news-en
In accordance with the Agreement between the Polish People's Republic and the Czechoslovak Socialist Republic on legal assistance and legal relations in civil, family, labor and criminal matters of December 21, 1987, divorce is subject to the law of the Contracting Party of which the spouses are nationals at the time the proceedings are initiated. above In divorce cases, the court of the Contracting Party of which the spouses are nationals at the time the proceedings are initiated has jurisdiction
If, at the time the proceedings are commenced, one of the spouses is a national of one Contracting Party and the other is a national of the other Contracting Party, the divorce will be governed by the law of the Contracting Party in whose territory they have their common domicile. If one of the spouses is domiciled in the territory of one Contracting Party and the other in the territory of the other Contracting Party, the law of the Contracting Party in whose court the proceedings are brought shall be applicable. above In divorce cases, the court of the Contracting Party in whose territory the spouses have their common place of residence has jurisdiction. If one of the spouses is domiciled in the territory of one Contracting Party and the other is domiciled in the territory of the other Contracting Party, the courts of both Contracting Parties have jurisdiction.
The court competent to rule on divorce is also competent to rule on parental authority and alimony for minor children.
by Redaktor | Dec 4, 2023 | news-en
In the judgment of May 29, 2023 (I ACa 42/22), the Court of Appeal in Kraków stated that in Art. 58 § 2 of the Family and Guardianship Code three types of decisions regarding a shared flat are provided for, namely: a ruling on the manner of using the flat for the duration of the joint residence of divorced spouses, a ruling on the eviction of one of these spouses, and a ruling on the division of the joint flat or on awarding it to one of the spouses. The first of these decisions is of a transitory nature, as it regulates housing relations temporarily, i.e. for the duration of the divorced spouses' cohabitation, while further types of decisions are of a final nature, as is the division of the divorced spouses' joint property. Moreover, the first of the discussed decisions comes into play when the court did not order the eviction of one of the spouses or did not divide the joint flat or did not award it to one of them. The scope of the court's jurisdiction is also different when it comes to each of these decisions, because the court decides ex officio on the manner of using the shared apartment, on the eviction of one of the spouses at the request of the other spouse, and on the division of the shared apartment or on awarding it to one of the spouses. decides at the request of both spouses.
The Court of Appeal in Kraków recalled the guidelines of the judiciary and judicial practice in the scope of adjudicating in a divorce judgment on the joint apartment occupied by the spouses and the division of joint property (III CZP 30/77, OSN 1978, item 39). In this resolution, the Supreme Court stated, among other things, that "the decision on the manner of using a shared apartment during the period of joint residence there (...) of the spouses (Article 58 § 2, first sentence of the Family and Guardianship Code) covers basically every apartment occupied by them , i.e. an apartment that is actually at their disposal, regardless of the legal title held. (...). Moreover, the decision on how to use the apartment does not violate the rights of third parties, i.e. the owner of the building or apartment. It does not eliminate the right of ownership to the apartment. a spouse who acquired this apartment before entering into marriage and therefore constitutes the separate property of this spouse. (...) The decision on the manner of using the shared apartment during the period of residence in it (...) of the spouses usually involves the temporary separation of the spouses by assigning each of them a specific part of the common apartment for separate use. This ruling has consequences such as the division of things quo ad usum. If necessary, the court may also normalize the parties' mutual relations during their joint residence by issuing appropriate orders and prohibitions.
In the present case, he granted the defendant the living room room he had requested for exclusive use with shared use of the other rooms on the ground floor. He also regulated the plaintiff's exclusive use of the rooms on the first floor and made the remaining rooms in the parties' house available for shared use. Allocating separate rooms for the exclusive use of spouses while they live together will isolate them to some extent. The court also ordered the plaintiff to give the defendant the keys to the house and the allocated premises within 14 days from the date of the judgment becoming final, because the defendant does not currently live there and does not even have the keys to the house. The court also regulated the manner of use by spouses of the above-mentioned. rooms. He prohibited the defendant from bringing people other than his biological children into the allocated rooms due to the intentions that the defendant wanted to achieve by moving into one room with his entire current informal family. In the light of the plaintiff's attitude, past conflicts, and, above all, for the good of the parties' minor child, the plaintiff's living with people who were strangers to his minor son would be very destructive to the minor's psyche. The defendant's concubine has three children of her own, it is difficult to imagine their life in one room. This would lead to further numerous conflicts between the parties, and the task of the divorce court is to regulate the use of the shared apartment in such a way as to avoid such conflicts for the duration of the divorced spouses' cohabitation in one apartment. The court assessed the defendant's behavior very reprehensibly as, without the knowledge and consent of the remaining co-owner, i.e. his wife, he registered his concubine with her children in the apartment and then, together with her, started a quarrel in front of the plaintiff's house, demanding to be let into the house. This fact already shows what the relationship would be between the plaintiff, the minor son of the parties, and the defendant's concubine. Not only the parties' son but also the concubine's children would be exposed to such behavior, and it would also be contrary to the principles of social coexistence.
