Divorce with a foreigner - how to approach it?

Nowadays, marriage between a Polish citizen and a foreigner is not unusual. As a result, more and more often the following cases appear on court dockets divorce cases, in which one of the parties is foreigner. I have had the opportunity to handle several such cases and in today's post I want to answer some of the questions most often asked by spouses determined to separate.

IN WHICH COUNTRY SHOULD THE PROCEEDINGS TAKE PLACE?

This is the first question that needs to be answered when making a decision on divorce with a foreign spouse. In the case where the spouses are Polish citizens and reside here, the matter is simple - the court with jurisdiction over the divorce case will be a Polish court. In an earlier post, I analysed the situation when one of the spouses lives outside Poland - entry is available here.
The situation is different in the case of divorce with a foreigner. It is also necessary to establish whether our spouse is from a Member State European Union or not.

DIVORCE WITH AN EU MEMBER STATE NATIONAL

In order to determine in which country the divorce proceedings should take place in the event of a divorce with a spouse who is a national of a Member State of the European Union go to 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 .
Thus, in accordance with the aforementioned regulation, the courts of the Member State in whose territory the jurisdiction is situated shall have jurisdiction:

• - the spouses habitually reside, or
• - the spouses last habitually resided there, if one of them still resides there, or
• - the defendant 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/she lived there for at least one year immediately prior to submitting the application, or
• - the applicant is habitually resident if he or she lived there for at least six months immediately prior to the application and is either a national of the Member State concerned or, in the case of the United Kingdom and Ireland, has his or her „domicile” there;

DIVORCE WITH A NON-EU CITIZEN

If the spouse is a non-EU foreigner, it is necessary to refer to the provisions of the Code of Civil Procedure when determining the country in which the court proceedings should take place.

According to Article 1103(1) of the Code of Civil Procedure, a Polish court will have jurisdiction when:

• - both spouses had their last residence or habitual abode in the Republic of Poland, if one of them still has his or her residence or habitual abode in the Republic of Poland, or
• - the plaintiff spouse has had, for at least one year immediately prior to the commencement of the proceedings, his or her place of residence or habitual abode in the Republic of Poland, or
• - the plaintiff spouse is a Polish citizen and has had, for at least six months immediately prior to the commencement of the proceedings, a place of residence or habitual abode in the Republic of Poland.

It should be borne in mind that in the above-mentioned cases, the case may also be pending in another country. In the event that the spouses file for divorce in different states, it is important which state the proceeding was initiated in first, as this is where the case will take place.

LAW APPLICABLE TO DIVORCE WITH A FOREIGNER

A determination that a case may proceed before a Polish court does not mean that the court will always apply Polish law. It may happen that, in accordance with the above rules, the case will be brought before a Polish court, but the substantive law of another country will apply.

According to the Private International Law, the dissolution of marriage is subject to the common paternal law of the spouses at the time of the request for dissolution of marriage. In the absence of a common national law of the spouses, the law of the State in which both spouses have, at the time of the request for dissolution of marriage, the following shall apply residence, or, if the spouses do not have their common habitual residence at the time when the dissolution of marriage is requested, the law of the State in which the two spouses had their habitual residence last place of common habitual residence, if one of them still has his/her habitual residence there. If the applicable law cannot be determined according to the above rules, Polish law shall apply to the dissolution of marriage.

Do you need additional legal assistance? You have questions about your divorce, email me!