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Divorce - Poland
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1. What are the conditions for obtaining a divorce?
The court issues a divorce decree, ruling on whether one of the spouses is responsible for break-up of the marriage, and if so which spouse. If the spouses both so request, the court omits the ruling on responsibility.
Divorce is not conditional upon previous separation.
2. What are the grounds for divorce?
The grounds for divorce are that a marriage has broken down completely and irrevocably. Both conditions must obtain.
3. What are the consequences of a divorce as regards:
a) the personal relations between the spouses? (e.g. name)
For three months after the divorce ruling takes final effect, a divorced spouse who changed their surname when they married may, by submitting an application to the manager of the registry office, revert to the surname which he or she bore before marriage.
A divorced spouse may marry again.
b) the division of property of the spouses?
From the moment the spouses are married, the joint property of husband and wife is established by law. It covers the property they acquire (statutory joint ownership). This joint ownership ceases when the marriage comes to an end, i.e. when the final divorce decree takes effect.
At the request of one of the spouses the court may divide the joint property in the divorce decree. The acquired property of the spouses is composed of the items acquired by one or both of them while joint ownership applied.
Both spouses have equal shares in the joint property.
If they have serious grounds for so doing, either spouse may ask the court to divide the joint property according to the degree to which each spouse contributed to the acquisition of that property.
Furthermore, where the spouses inhabit joint accommodation, the court rules in its divorce decision on the way that the accommodation is to be used while the divorced spouses continue to share it. The court may also, if an application is made to this effect, rule on the division of joint accommodation or award the accommodation to one of the spouses if the other consents to leave it without replacement accommodation being provided.
c) the minor children of the spouses (e.g. parental responsibility and maintenance claims?)
In the divorce decree the court decides parental rights over the minor children of both spouses and the amount that each spouse must pay to cover the children's maintenance and education.
The court may entrust the exercise of parental rights to one parent, limiting the parental rights of the other parent to specific obligations and rights in relation to the child(ren).
d) the obligation to pay maintenance to the other spouse?
A divorced spouse who has not been found to be exclusively responsible for the breakdown of the marriage and who is in material difficulty may demand maintenance from the other spouse in accordance with his/her reasonable needs and the earning capacity and financial possibilities of the other spouse.
If the divorce entails a substantial deterioration in the material situation of a spouse who is not responsible for the breakdown of the marriage, the spouse who is found to be exclusively responsible for the breakdown of the marriage is obliged to provide funds to meet the needs of the spouse who is not responsible, even if the latter is not in material difficulty.
The maintenance obligation ceases when the spouse receiving maintenance contracts a new marriage. Where the spouse required to pay maintenance was not found to be exclusively responsible for the breakdown of the marriage, his or her obligation to pay maintenance ceases five years after the divorce.
4. What does the legal term “legal separation” mean in practical terms?
It is a formal separation, i.e. it is the subject of a court decision under sections Articles 61(1) to 61(6) of the Family and Guardianship Code
5. What are the conditions for legal separation?
The condition for separation is the finding that the marriage has completely broken down.
If the spouses have no children in common, the court may decree a separation at the request of the spouses.
6. What are the legal consequences of legal separation?
The legal consequences of separation are the same as those of a divorce, but a separated spouse may not contract a new marriage.
7. What does the term “marriage annulment” mean in practice?
"Marriage annulment" means the cancellation, with retrospective effect, of all the results of the marriage, except the status of children of the annulled marriage, who retain the status of children born in wedlock.
8. What are the conditions for marriage annulment?
The reasons for annulling a marriage are enumerated in the Family and Guardianship Code:
- one of the spouses is under the legally required age for marriage,
- a spouse is completely legally incapacitated,
- a spouse is mentally ill or mentally retarded,
- a spouse is already married to another person,
- there is a relationship of lineal consanguinity or collateral consanguinity (brothers and sisters, including stepbrothers and stepsisters and extra-marital brothers and sisters) or lineal affinity between the spouses,
- there is an adoption relationship between the spouses,
- submission of a statement that a spouse contracted the marriage when in a state not permitting a conscious expression of will for any kind of reason, under the influence of an error concerning the identity of the other party or under the influence of a wrongful threat.
Any of the aforementioned causes must have arisen at the time when the marriage was contracted.
9. What are the legal consequences of marriage annulment?
A decision annulling a marriage is constitutive and has consequences for third parties (erga omnes). There are two types of consequences:
- ex tunc, i.e. they go back to the date of contraction of the marriage, e.g. the spouses resume the marital status which they had prior to the marriage and resume their previous surnames; the relationship of affinity between the spouse and the family of the other spouse is cancelled, statutory inheritance is impossible;
- ex nunc, i.e. they arise at the moment the judgement of marriage annulment becomes final and valid, e.g. with respect to property relations.
The consequences of the annulment for the spouses' relationship to children from their marriage and for property relations between the spouses are governed by the relevant provisions of divorce law under which a spouse who contracted the marriage in bad faith is deemed to be the spouse responsible for the breakdown of the marriage.
10. Are there alternative non judicial means for solving issues relating to the divorce without going to court?
Family mediation exists in Poland. Its fundamental objective is to resolve conflicts between spouses so as to avoid divorce or separation. Mediation is usually performed by non-governmental organisations, foundations or the Church.
Spouses suffering from marital conflict can also call seek assistance in numerous forms from family therapists, psychologists, psychotherapists, support groups, etc
11. Where should I lodge my application (petition) for divorce/legal separation/marriage annulment? Which formalities must be respected and which documents should I attach to my application?
Applications for divorce, separation or annulment of a marriage must be lodged with the regional court (sąd okręgowy) with jurisdiction for the most recent place of joint residence of the spouses, in the absence of which the statements must be lodged with the regional court with jurisdiction for the place of residence of the applicant.
A court entry levy is charged on such applications. However, a party whose material situation does not allow him or her to pay the charge may apply to the court for full or partial exemption from the court costs, and may also ask the court to appoint a lawyer ex officio to act for him/her.
The following must be annexed to application as appropriate: copies of civil status documents (marriage certificate, children's birth certificates), evidence of earnings (income), document authorising a lawyer to act for the party (if he/she has elected to chose his/her own lawyer) and any certification of other kinds (medical, administrative decisions, etc.) which may be relevant to the case.
12. Can I obtain legal aid to cover the costs of the procedure?
Yes, see point 11 above.
A person applying for full or partial exemption from payment of court costs or ex officio appointment of a lawyer must annex to the application a statement of his/her material situation on the appropriate form, available from the court.
13. Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment?
Yes, in all these cases it is possible to appeal to a court of second instance. Parties may appeal to the appeal court against regional court decisions.
14. What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State recognised in Poland?
For the decision of a foreign court on a civil case such as divorce, separation or marriage annulment to have legal effect in Poland, it must be recognised by a Polish court.
A foreign court decision on a non-financial case involving foreign nationals, issued by the competent court in accordance with national law, does not require legal recognition unless it is to be the basis on which a marriage is contracted or the basis of an entry in the register of civil status, land register or other Polish register.
Anyone who has a legal interest may apply for recognition of such a decision.
The court with jurisdiction is the regional court which would have local jurisdiction for hearing the case. If jurisdiction cannot be established on this basis, the court with jurisdiction is the regional court of the capital city (Warsaw Regional Court).
15. To which court should I turn to oppose the recognition of a decision on divorce/legal separation/marriage annulment issued by a court in another Member State? Which procedure applies in these cases?
Where a regional court has handed down a decision recognising the legal effect in Poland of the decision of a foreign court, a person wishing to question that recognition may lodge an appeal pursuant to the general rules.
Within seven days of the issue of the decision, such a person may apply for the reasons for the decision to be set down in writing. Within 14 days of receiving the reasons in writing, he or she may lodge an appeal, or he/she may do so within 21 days of issue of the decision.
Both the application for reasons and the appeal must be addressed to the court which issued the decision in question. Once the appellant has completed the formalities (e.g. paid for the appeal), that court will forward the appeal, along with the court documentation, to the court of appeal.
16. Which divorce law does the court apply in a divorce proceeding between spouses who do not live in Poland or who are of different nationality?
Under the Act on Private International Law, the applicable law for cases relating to marriage is the national law of the home country of each spouse. Polish law does not recognise dual nationality. A Polish national, even if s/he also has another nationality, will be treated by the court as having only Polish nationality. This means that in a divorce, separation or marriage annulment case the court will take account of the relevant provisions of Polish law (Family and Guardianship Code). If a Polish court is hearing such a case in respect of (a) person(s) who do(es) not have Polish nationality, but is/are (a) national(s) of another state, it is obliged to take account of the conditions for divorce, separation or marriage annulment in the national law of each of the parties separately.
In addition to the Act on Private International Law, the issue of the applicable law on divorce, separation or annulment is also governed by bilateral agreements between Poland and various other states. The key factor in deciding which country's law is applicable is the nationality of the person concerned by the case.
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Last update: 22-02-2007
