KIELTYKA GLADKOWSKI HAS EXPERTISE IN HANDLING DIVORCE CASES WITH ALL ASPECTS OF INTERNATIONAL ELEMENTS
Our law firm in the field of family and guardianship law specializes in handling all types of divorce cases. It should be noted that in Poland only the court decides on divorce and in many situations it will be unacceptable to conduct divorce due to other rights or interests that the institution of marriage protects. Such rights or interests will be, for example, the common good of the minor children of the spouses, or situation when divorce would be contrary to the principles of social coexistence or is requested by the spouse solely culpable of the breakdown of the marriage without the consent of the other spouse. Even if there are no conditions for the impossibility of dissolving the marriage, in order to dissolve the marriage before the Polish court, it will be necessary to prove the complete and permanent breakdown of the marriage, which in jurisprudence is considered a weakening or disappearance of spiritual, physical and economic ties.
– conducting proceedings regarding the grounds for divorce in Poland,
– building a strategy based on witnesses testimony to demonstrate a complete and permanent breakdown of marriage,
– analysing foreign documents in the event of permanent breakdown of marriage,
– translation of certified foreign documents, such as lease agreements, reports, financial documents from banks, employment contracts, civil status records, decisions and certificates issued by public administration bodies, notarial deeds, children’s school certificates, health certificates and all other documents proving the fact that the foreigner lives in a different country than the other spouse,
– developing evidence that the divorce does not interfere with the principles of social coexistence,
– preparing evidence for the sole fault of the spouse,
– developing evidence that divorce does not interfere with the child’s welfare,
– we also advise clients on mediation in divorce cases.
In this regard, KIELTYKA GLADKOWSKI advises foreign law firms and their Clients in the assessment of cases that are also evaluated under Polish law abroad. We prepare reports, affidavits and legal opinions in respect of cross border elements of family and guardianship cases.
In Polish law, the legislator provides for a situation in which the termination of a marriage occurs without a divorce. Such a legal institution consists in acknowledging a spouse as dead in a situation where, in accordance with the Polish Civil Code, the spouse has been declared missing and the court has marked the moment of death of such a spouse in the judgment. In such a situation, Polish law provides for the possibility of remarriage without a divorce, even if the person declared dead is actually alive, provided that the persons entering into the marriage did not have knowledge of this fact. Our law firm, when handling cases based on the institution of acknowledging a spouse as deceased, deals with:
– conducting proceedings for foreign clients in the event of a spouse’s disappearance in Poland and proceedings to declare such a spouse dead,
– preparation of certified translations of judgments on recognizing the missing spouse as dead, as well as preparation of certified foreign documents proving or negating the possibility of recognizing the missing spouse as dead,
– drawing up applications for recognition of the spouse as deceased and for confirmation of the spouse’s death in Poland and abroad,
– preparation of evidence for circumstances that substantiate or contradict the possibility of recognizing the spouse as dead or missing,
– preparing evidence and analysing documents and circumstances proving the conclusion of a new marriage by the parties in bad or good faith after the missing spouse was declared dead.
A judgment given in one Member State is recognized in other Member States without the need for any special procedure.
The court of the Member State of origin shall, at the request of a party, issue a certificate concerning judgments in matrimonial matters using the appropriate form.
The certificate shall be completed and issued in the language of the judgment. The certificate may also be issued in another official language of the institutions of the European Union requested by one of the parties. This in no way obliges the issuing court to provide a translation or transliteration of the translatable content of the free text fields.
In such a situation, the party is required to submit:
– a copy of the decision that meets the conditions necessary to establish its authenticity;
– a certificate on the prescribed form.
The court or competent authority before which the party invokes a judgment issued in another Member State may, if necessary, oblige the party invoking it to provide a translation or transliteration of the transliterated content of the text fields of any certificate as well as the judgment of the foreign court itself.
If the required documents have not been produced, the court or competent authority may set a time limit within which they must be produced, may accept equivalent documents or, where it considers that it has sufficient information, may waive the obligation to produce them.
A court before which a judgment given in another Member State is invoked may stay the proceedings pending before it, in whole or in part, if:
(a) an ordinary appeal has been lodged against that judgment in the Member State of origin;
(b) an application is made for a decision finding that there are no grounds for refusal of recognition or for a decision refusing recognition on the basis of one of those grounds.
The court may refuse to recognize foreign divorce judgment in the following situations:
– if such recognition is manifestly contrary to the public policy of the Member State in which recognition is invoked;
– where the judgment was given in default, if the opposing party was not served with the document instituting the proceedings or an equivalent document in time and in such a way as to enable him to arrange for his defence, unless it is established that the opposing party has expressly 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;
– if the judgment is irreconcilable with an earlier judgment given in another Member State or in a third country between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is invoked.
Public instruments and agreements on separation and divorce which are legally binding in the Member State of origin are recognized in other Member States without the need for any special procedure.
For the purposes of enforcement in Poland of a judgment given in another Member State, the party seeking enforcement shall submit to the authority competent for enforcement:
– a copy of the decision that meets the conditions necessary to establish its authenticity;
– the relevant certificate included in the form, which is also referred to in the section on recognition of judgments.
For the purposes of enforcement in Poland of a judgment given in another Member State in which an interim, including protective, measure has been ordered, the party seeking enforcement shall submit to the authority competent for enforcement:
– a copy of the decision that meets the conditions necessary to establish its authenticity;
– an appropriate certificate on a form certifying that the judgment is enforceable in the Member State of origin and that the court of the Member State of origin has jurisdiction as to the substance of the case;
– proof of service of the judgment – if the measure was ordered without summoning the opposing party to appear.
The authority competent for enforcement may, if necessary, require the party requesting enforcement to provide a translation or transliteration of the translatable content of the text fields of any certificate specifying the obligation to be enforced, as well as the judgment of the foreign court itself.
The party seeking enforcement of a judgment may apply for partial enforcement of the judgment. If the judgment has settled several claims and enforcement is refused in respect of some of these claims, enforcement is nevertheless possible in respect of the parts of the judgment that are not affected by the refusal of enforcement.
The authority competent for enforcement or the court in the Member State of enforcement shall, ex officio or at the request of the person against whom enforcement is sought, stay the enforcement proceedings if the enforceability of the judgment has been suspended in the Member State of origin.
The competent authority may do so for the following reasons:
– an ordinary appeal against the judgment has been lodged in the Member State of origin;
– the time limit for lodging an ordinary appeal has not yet expired;
– an application for refusal of execution has been filed.
In principle, the grounds for suspension or refusal of enforcement under the law of the Member State of enforcement also apply.
The law of the Member State of enforcement applies to the procedure for submitting an application for refusal of enforcement, to the extent that it is not regulated by EU Regulation 2019/1111.
Either party may appeal or challenge the decision on the application for refusal of enforcement.
The authority competent for enforcement or the court to which an application for refusal of enforcement has been made or which is dealing with an appeal may stay the proceedings for one of the following reasons:
– an ordinary appeal against the judgment has been lodged in the Member State of origin;
– the time limit for lodging an ordinary appeal has not yet expired.
The Polish legislator provides for situations in which a spouse may demand alimony claims from the other spouse at the request of the other spouse, however, under certain conditions.
A spouse may claim alimony (support, maintenance) if the court has ruled that he or she is not solely to blame for the breakdown of the marriage and is in need, or if the innocent spouse’s financial situation has deteriorated significantly as a result of divorce. A sufficient reason justifying the alimony claim of a spouse who is not culpable of the breakdown of the marriage is the fact that the divorce results in a significant deterioration of his/her financial situation. In such a case, it must be proved that after the divorce the spouse who is not culpable will have a worse financial situation than in the marriage and that this deterioration is significant, i.e. perceptible, and will even be in a state of deprivation. The entitled person has the right to satisfy their justified needs, and even needs of a higher order, and at a higher than average level in society, but at the same time at a lower level than before in marriage.
The amount of alimony in the above situations is determined on the basis of the earning and financial capabilities of the obligated spouse and the justified needs of the innocent spouse. Such needs will be all the needs that ensure the satisfaction of a decent existence, such as paying for housing, food, clothing or healthcare.
When representing Clients in cross border divorce cases, our lawyers pursue maintenance claims between spouses, including assistance in:
– drawing up and submitting alimony claims against the other spouse,
– conducting proceedings regarding the grounds for adjudicating, repealing and changing the amount of alimony,
– preparing evidence in respect of the circumstances of the finding of insufficiency of the spouse solely to blame for the breakdown of the marriage,
– preparing evidence in respect of the circumstances of stating the deterioration of the financial situation of the spouse not culpable of the breakdown of marriage,
– developing evidence strategy specifying the justified needs of the spouse,
– advising in respect of the circumstances of the expiry of the maintenance obligation between spouses living in Poland and abroad.
The obligation to provide the means of subsistence will always expire when the entitled party remarries. In this case, the right to receive maintenance always ceases, regardless of the fact which of the spouses is found to be solely responsible for the breakdown of the marriage. Importantly, this rule relates to the remarriage of the spouse entitled to receive maintenance. The conclusion of a new marriage by the spouse responsible for the breakdown of the marriage does not result in the expiry of the alimony obligation, but it may be an argument in the course of a possible trial for reducing the scope of alimony.
If none of the spouses was at fault in the breakdown of the marriage or the court issued a divorce decree without adjudicating on fault, the period for possible alimony is 5 years from the date of the marriage judgment becoming final. This means that after 5 years from the date of the divorce judgment becoming final, the obligation to provide the means of subsistence expires. No additional court order is needed here. This period may be extended due to the exceptional circumstances of the case. This may be done by the court in a court judgment at the request of the entitled party. Such exceptional circumstances include, for example, the beneficiary’s illness, permanent incapacity for work, i.e. these are primarily circumstances limiting the earning capacity of the beneficiary.
The Polish legal system has introduced the institution of separation between the spouses, which, compared to divorce, does not constitute the cessation of marriage, but only temporary marital separation. The most important difference between these two legal institutions is the fact that in separation, as in divorce, the property community is abolished, but the spouses cannot remarry during the separation. In Poland, when deciding on separation, the court also decides on the issue of parental authority and contacts with the minor children of the spouses, which gives rise to the same effects as during divorce. We offer professional legal assistance in the entire scope of separation cases, including:
– assistance in deciding on the optimal divorce or separation procedure for the client, depending on the individual situation;
– representing Clients in the court proceedings regarding all grounds for separation;
– building a strategy based on witnesses testimony to demonstrate a complete breakdown of marriage;
– developing strategy and guidelines on evidence to demonstrate the sole fault of the spouse for breaking the marriage;
– preparing evidence and examining the fairness of the fact that a separated spouse is in need of financial maintenance;
– advising on the abolition of separation and regulation of parental authority over the minor child after the separation has ended;
– conducting all activities related to parental authority and regulating contacts with the child, as well as the division of a joint household and property and the payment of alimony listed in divorce proceedings during the separation due to the same legal basis.
Polish law prohibits the division of joint property during the joint marital property regime. The spouse may also not dispose of or undertake to dispose of the share that, in the event of termination of the commonality, will fall to that spouse in the joint property or in individual items belonging to this property.
However, it is possible to change the marriage regime. By operation of law in Poland, if there are no other agreements between the spouses, the marital property regime applies. During the marriage, the spouses may change this regime to one of the contractual regimes, as well as change the type of such marriage contract regarding property to another, also taking into account the possibility of concluding a matrimonial property agreement.
The Polish Family and Guardianship Code includes the following types of contractual matrimonial property regimes:
– property separation,
– separation of property with equalization of earnings.
The spouses can freely shape these regimes to their needs, within the limits of Polish law.
This legal situation applies to a situation where, during the divorce proceedings, there is a marital community of property between the spouses.
In Polish law, when conducting a divorce, the court may divide the joint property if such a division does not cause excessive delay in the proceedings, moreover, it is possible to conduct such proceedings during a case for separation or annulment of marriage.
In order to divide the joint property of the spouses, it is necessary to determine the value of individual items of joint property. The statutory community of property covers all items that the spouses acquired during the community of property. The other ingredients form the so-called personal property of each spouse.
The division of joint property means that specific assets become the property of only one spouse. The division of joint property is not dependent on divorce. It can occur both before the divorce, during the divorce, and several years after the divorce.
Common property includes in particular:
Common property also includes items of ordinary household appliances used by both spouses, even if they were acquired by inheritance, bequest or donation.
The division of joint property of the spouses is also possible by concluding a court or out-of-court agreement not only as to the entire joint property, but also as to its part.
Under Polish law, the application for the division of joint assets of the spouses should specify exactly what is included in the joint property, what is the value of the individual components of joint property and how the property is to be divided.
KIELTYKA GLADKOWSKI deals with all matters regarding the division of joint property during divorce proceedings, as well as separately, including:
– conducting proceedings regarding all prerequisites for the division of joint property,
– preparation and translation of certified court and out-of-court agreements for the division of joint property in whole or in part,
– preparation of evidence for the circumstances of determining important reasons determining the assessment of unequal shares in joint property,
– preparing evidence for the facts of contributing to the creation of joint property.
The division of joint property can be carried out even before the divorce itself, i.e. before the initiation of divorce proceedings, namely before filing a divorce petition. It is possible to divide property before divorce, while still married, and to divide property without divorce.
During marriage, community of property ceases when:
Each of the above situations justifies the division of joint property during the marriage.
Act of February 25, 1964 Family and Guardianship Code (Journal of Laws of 2020, item 1359, of 2022, item 2140);
In this regard, supplementary law are the so-called interpretative acts in the form of several judgments of the Polish Constitutional Tribunal, such as, for example, the judgment which specifies the time limit for bringing an action to deny paternity (Judgment of the Constitutional Tribunal of 16 May 2018, reference number SK 18/17 (Journal of Laws item 950).
Polish family and divorce law is also influenced by the achievements of Polish courts, i.e. about 30,000 judgments, including civil judgments and decisions in specific family cases, which function in an anonymous manner in online legal databases systematized with information on specific legal provisions of Polish family and divorce law.
Polish family law also includes executive regulations that supplement code solutions and acts that adapt the 1964 family code to modern realities.
Act of April 23, 1964 – Civil Code (Journal of Laws of 2022, item 1360) and related executive acts in the form of government regulations supplementing the regulation at the statutory level, the current number of which exceeds half a thousand.
Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility and on international child abduction (recast) (OJ L.2019.178.1);
In the cross-border aspect, the key legal act in divorce cases is the Act of 4 February 2011 – Private International Law (Journal of Laws of 2015, item 1792), which in Article 54 establishes the main principle that the dissolution of a marriage is governed by the common national law of the spouses at the time when the dissolution of the marriage is requested. Therefore, each cross-border divorce case is individual, because it requires a special analysis and approach, which is always undertaken by KIELTYKA GLADKOWSKI in each respective state of facts.