DIVORCE LAW

Justyna Kaczmarczyk-Otawa handles divorce-related cases on a daily basis, often assisting international clients who need legal representation in Polish courts.

Below you will find short articles on getting divorced in Poland, division of marital property pursuant to Polish law, jurisdiction of Polish court in divorce cases etc. 

Articles:

1. Divorce basics - how and when you can get divorced under Polish law.

2. Marital property after the divorce.

3. What evidence can be used during divorce proceedings?

4. Who's at fault for the breakdown of a marriage?

5. What happens with your money and other assets when you get married under Polish law?

6. Alimony for ex-wife/ex-husband after the divorce.

7. Do I need my husband's/wife's consent to get divorced?

8. What does a ruling on divorce contain?

1. Divorce basics - how and when you can get divorced under Polish law

If you want to get divorced in Poland you or your spouse should file a petition for divorce with the regional court (=sąd okręgowy). The court fee is PLN 600 and the confirmation of payment should be enclosed with the petition. When you file for divorce you should state whether you demand that the court rules on which spouse is at fault for the breakdown of marriage or you just want your marriage to be terminated without determining who is responsible for it. 

Before the court rules on terminating your marriage, it will establish if the breakdown of marriage is permanent and complete. The dissolution of marriage  is deemed complete if all the marital bonds (economic, physical and emotional) have been broken. This means that you should no longer live together (if you do, you should at least have separate rooms, prepare meals and manage finances separately), you  have no sexual relations and you don't love each other.

Even if you think the breakdown of your marriage is irretrievable, there is one thing that can prevent you from getting a divorce - it's your child's/children's welfare. If the judge finds that divorce would be detrimental to the welfare of the (minor) children of both spouses, your petition will most likely be dismissed. It goes without saying that  divorce always affects the children negatively but sometimes, especially if the spouses still live together, the children may not understand that the marriage is over and the news of a divorce comes as a shock to them. In such cases the whole family is usually examined by expert witnesses (psychologists), who will determine if the children are ready for their parents' divorce. 

It is also possible that the court will dismiss your petition if it establishes that it would be contrary to the principles of community life (meaning that it would be immoral, unethical and downright wrong to terminate the marriage). An example of such a situtation would be filing for divorce from a wife who is terminally ill and requires her husband's care and support. 

On a final note, it's important to know that the ruling on divorce is not about termination of marriage only - if there are minor children  the court will also rule on parental responsibility, parental contact with the child and the amount of maintenance. 

2. Marital property after the divorce

Theoretically it is possible for the court to decide not only about the divorce and all children-related matters during divorce proceedings, but also about the division of marital property. However, such situations are very rare and happen mostly when both spouses are in complete agreement about the way their assets should be split. If one of the spouses wants to make their divorce decisions conditional on the division of marital property, it won't work.  In a vast majority of cases only after the divorce ruling has become final, is it possible to initiate the proceedings for the division of marital property.

It's important to realise that while you're married (unless you and your spouse decided otherwise) everything you own is the joint property of you and your husband/wife. This means that you can't sell e.g. your car without your spouse's consent. Once you get divorced, the joint property ceases to exist and you and your spouse become co-owners of everything you owned together while being married (from then on, you can even sell or donate your half-share in the marital property to whomever you choose which is impossible during the marriage). Anyway, when you're finally divorced there are two ways to go about the partition of you marital assets. First thing that you can do is to go to the notary's office and ask the notary to draw up a document stating who gets what. If there is no real estate in the marital property (only movable property, such as household equipment, furniture, cars etc.), you don't even need a notary to split all your assets - you can draw up such a document (an agreement) with your spouse, sign it, keep one copy  for yourself and that's it (if you don't know how to do it you can always ask a lawyer for help). Obviously such 'amicable' partition of assets is only possible when the ex-spouses cooperate and agree as to what each of them shall keep after the divorce.

Very often no agreement is possible and then each of the ex-spouses may file a petition for the division of the marital property with the district court (not the regional court which handled the divorce). The court fee is essentially PLN 1000 (however, if both parties agree to the way the assets will be split between them the court fee is PLN 300).

3. What evidence can be used during divorce proceedings?

When you have decided to seek a divorce and you want the court to determine that the other spouse is at fault for the breakdwon of marriage, you'll have to prove it (if you think you'll manage just with telling the judge your side of the story, you're wrong).

Let's consider a typical situation - your wife/husbad has cheated on you and you think it's the sole reason for the breakdown of your marriage. Now you need to give evidence to support your claims. In cases where cheating was involved, the innocent spouse often turns to detectives for help. Usually a detective will follow a cheating wife/husband for a few days in order to take some photos of them with their lover/new partner (the photos should show them in situations where the romantic relationship is apparent, e.g. while kissing, holding hands, leaving a hotel together etc.). Such photos can be presented to the court and the detective will usually testify as a witness explaining what exactly he saw. Unfortunately, hiring a detective can be quite expensive and there's no guarantee he/she will be lucky and get the photos you need. 

There's no doubt that the main source of information in divorce cases are witnesses.

Very often parties to divorce proceedings ask the court to summon their next of kin and ask them about the reasons why the marriage didn't work out. Testimony given by the closest family and friends will not be considered any less worthy just because such witnesses might be considered partial or biased. Parents, friends, colleagues etc. usually know the most about the marriage in question so their testimonies may prove to be important for the court. Obviously, every now and  then the witnesses closest to one of the spouses will do everything in their power to malign the other spouse while maintaining that their daughter/son/cousin/friend is the epitome of a perfect wife/husband. If the judge comes to the conclusion that such a witness is incapable of giving impartial testimony (as their story is only one-sided and lacks any credibility), he/she may deem such testimonies as unrealiable and unconvincing. It is always up to the court to decide which witness is most credible and you'll find out about it only after the case has been finished and the judge has written the reasons for the judgement (as long as at least one of the parties applied for the statement of reasons).

If you want your children to testify in your divorce case, it's important to remember that they have to be 17 or older. Your closest family summoned to testify (parents, siblings, children) have the right to refuse to testify and the judge will always inform them about it before the examination begins. When deciding about the witnesses who will testify in your case, it's worth assessing what kind of information they possess and what their attitude toward you is. If a person has been summoned to testify, they have to come to the court and do it (even if they told you they didn't want to). If they don't appear in court, they'll be fined for their non-appearance. However, you really don't want a witness who hates you and wants to help your opponent,  so it's best if you can roughly predict what kind of testimony will be given (obviously, by the witnesses requested by you;  with those requested by your spouse you never know what to expect).

These days it's become quite common that the parties to a divorce also use various recordings, printouts or screenshots to prove their point in court. In an era when everybody has a cell phone (or a smart phone) it's possible to record anything and everything anytime, thus in almost every case there's a recording of the spouses talking on the phone, or a video of one of the spouses doing something wrong or emails confirming an affair, gambling or substance abuse.

It seems like everything goes in divorce cases, no holds barred... as long as the evidence proves your point, you can use it. Obviously, when you record a converstation between your spouse and some other person, you hack into your spouse's email or facebook account, you run the risk of being sued or charged with a crime (breach of personal rights, of privacy of correspondence, stalking, etc.). 

4. Who's at fault for the breakdown of a marriage?

Obviously there can be a thousand reasons for the breakdown of a relationship, but if you're seeking divorce and you want the court to rule that your spouse is responsible for it , here's the list of the most frequent situations making one of the spouses 'guilty' (according to Polish judicial case law):

- cheating

It's no surprise that cheating is one of the most common reasons for people to split up. However, when it comes to divorce proceedings, it's not only the 'adultery' that is considered a culpable behaviour but also any behaviour of one spouse towards someone who is not their wife/husband that might suggest extra marital relations. Obviously the court will not expect you to present evidence of your spouse in bed with another person - photos of kissing or holding hands will usually be more than enough to prove the point of a husband/wife who thinks they're being cheated on. If a husband spends the night at a female friend's place, in some circumstances it could also suggest cheating, even when nothing really happened.

- violence/addictions

It goes without saying that a spouse who commits physical or psychological violence will be considered guilty of the breakdown of marriage. Any form of domestic abuse will be seen as a grievous breach of marital obligations. Repeated hurling of insults (unless it's the customary and accepted way of quarelling of both of spouses) may also be thought to be a culpable behaviour. The same applies to addictions.

- relationship with family

It may happen that one of the spouses focuses on his/her family members so much, that they completely neglect their marital obligations, or, that one of the spouses treats the other spouse's children from previous relationships badly. Such situations will be carefully  analysed by the court and  it may turn out that family relations say a lot about who's at fault for the breakdown of a marriage.  However, it would take rather an extreme situation for the court to rule that someone is at fault because of the family relations. The sole fact that your mother-in-law is dreadful and makes your life difficult will not be enough. 

- idleness

 If one of the spouses refuses to financially support the other spouse (and the family they started), this could lead to the dissolution of a marriage. Usually it's when the spouse doesn't want to work although there are no reasons for him/her not to.

- abandonment and desertion

When one of the spouses moves out of the shared house of his/her own accord, against the other spouse's will, it will most likely be seen as a culpable behaviour. Obviously, when a wife deserts her husband who abused her or a husband goes abroad to work and it's been agreed by both spouses, it's a totally different situation.

- disloyalty

Once again, this reason for the breakdown of marriage has to be rather extreme - for instance, when one of the spouses accuses the other of committing a crime and the accused spouse ends up being acquitted - that could lead to the breakdown of marital ties, especially to the loss of   necessary trust between a husband and a wife. Another example of a glaring disloyalty would be when one of the spouses squanders money/property accumulated by both spouses.

Of course, the above-mentioned reasons for the breakdown of a marriage are only examples; every case is different and has to be approached individually. It is very important to stress, however, that when one seeks divorce and wants the court to rule on the other spouse's fault, the latter has to be exclusively guilty for all the 'marriage crimes'. Polish law doesn't distinguish degrees of 'guilt', meaning that if one of the spouses is predominantly at fault for the breakdown of marriage  but the other spouse is also at fault (however, to a small extent), they will both be found responsible for the breakdown of their marriage.

 

5. What happens with your money and other assets when you get married under Polish law?

Admittedly this page is about divorce only, but in order to understand what will happen to your property after the divorce, you need to understand what happens to it when you get married in the first place.

When two people get married they find themselves (in terms of money and property) in a 'joint property regime' also known as the statutory co-ownership, which is created automatically upon marriage. It covers the property acquired during the marriage by both spouses or by either of them, in particular:

- remuneration received for work and income from other activities of each of the spouses (basically all your earnings)

- income from joint property as well as from the personal property of each of the spouses (e.g. when you own a a rental house, the rent will belong  to you and your spouse, even if you acquired  the house before marriage and it's your personal property)

- amounts collected in a bank account or an employee pension fund. 

An important thing to remember is that whatever you or your spouse buy (during the marriage) will be considered your joint property (so its his as much as hers and vice versa). It doesn't matter what the documents say, even if you bought a car and only your name appears on the sale agreement, legally the car also belongs to your spouse, as it was purchased during the marriage.

If it  comes to a divorce, all the joint property will have to be split between the two ex-spouses.

Considering the above, it's important to know what you personal property is, especially that it will always be yours, no matter if you're married or divorced. 

The personal property of each of the spouses include:

-  property acquired before marriage

- property acquired by inheritance or donation, unless the bequeather or donor decides otherwise (if you inherit something from your grandmother during the marriage, it will always be yours only)

- joint property rights that are covered under separate provisions (e.g. one of the spouses is a partner in a civil law partnership)

- property that is used exclusively to satisfy the personal needs of one of the spouses (e.g. one of the spouses uses an expensive wheelchair)

- rights that cannot be transferred and may only be exercised by one person, e.g. right of preemption (=you have a legal priority to buy a certain estate), servitude of dwelling (you have the right to live in a certain flat or part of the house until you die),

- money received as damages for bodily injury or as compensation for harm suffered (e.g. if you've been a victim of a car accident and your health suffered as a consequence, the insurer may pay you damages/compensation for it, which will belong only to you). However, it doesn't include disability benefit paid out to an injured spouse due to a partial or total loss of earning ability or due to an increase in needs or a decrease in prospects for the future (again, if you've been in a car accident and your injuries preclude you from working as before, you'll receive a disability benefit which is a substitute of your previous earnings - therefore it is considered joint property, just like regular earnings)

- debts concerning remuneration or other activities by one of the spouses (if your boss failed to pay your salary for the last couple of months, this "debt" is your personal property until it is paid out to you - then becomes joint property; since the debt is your personal property, you can assign it without your spouse's consent),

- property received as a prize for individual achievements by one of the spouses (if one of the spouses writes a book and wins a contest for the authors, the prize/money received will be personal property)

- the copyrights and related rigths, industrial property rights and other rights of a creator (if one of the spouses writes a book, she/he is the sole owner of copyrights, but any income generated by the book will be joint property),

- property acquired in exchange for personal assets (if one of the spouses had their own house before getting married and then sold it during the marriage, the money received as a price will remain their personal property even if it was used to buy a more expensive house).

One more reservation: ordinary household items used by both spouses are covered by statutory co-ownership (they are joint property), even if they were acquired through inheritance or donation (unless the bequeather or donor decided otherwise). 

6. Alimony for ex-wife/ex-husband after the divorce

As the heading suggests, it is possible to get alimony from your ex-spouse whether you are a man or woman. However, in practical terms it's almost always women who get alimony from their ex-husbands after the divorce. That's because a vast majority of women are in a worse financial situation than their husbands, although it is, of course, possible that it will be the other way round.

So when exactly can you get alimony from your ex?

It all depends on whether the court has found your ex-husband/wife guilty of divorce or not. If the court ruled that your ex is entirely at fault for the dissolution of marriage and you are not to blame for anything (that is crucial -your ex has to be solely guilty for the divorce), then you can claim alimony, as long as the divorce entails a significant deterioration in your standard of living (which is quite common when it was your husband who was the main provider). You don't have to be poor to have the right to alimony in that case - it's enough if you prove that after the divorce your financial situation will get much worse when compared to your life as a married person. If the court awards you alimony, you'll be receiving it until you remarry. 

Another situation is when you got divorced without the court deciding who was at fault or when it decided that both spouses were responsible for the breakdown of the marriage. In such cases, the ex-spouse who finds himself/herself without means to get by, may claim alimony from the other ex-spouse who has not been found solely guilty of the divorce. The amount you will be awarded by court will on one hand reflect your justified needs in terms of your upkeep, and on the other hand - the earning capacity and assets of the other ex-spouse who is to pay alimony. In practice, obtaining this kind of alimony is much harder than in the first case, where you don't have to prove that you're really poor. It's important to note though, that you'll be receiving alimony from your non-guilty ex-spouse only for 5 years (unless the court extends this period due to exceptional circumstances).

7. Do I need my husband's/wife's consent to get divorced?

Sometimes we hear one spouse saying to the other: I'm not going to give you divorce! As if it was up to the wife/husband to "grant" the other spouse divorce and if they don't feel like it, you will stay forever married. Fortunately that's not the case in Polish law.

Let's presume that you want to get divorced but you fear that your spouse doesn't. You file a petition for divorce, the judge will serve a copy of it to your spouse (who'll be called a respondent) and ask them what their opinion on the matter is. The reluctant spouse may then do either of  two things:

- accept the request for divorce (however, if the petitioner wanted a no-fault divorce, the respondent may demand that the court decide on who's at fault for the breakdown of marriage)

- ask the court to dismiss the petition and refuse the divorce for either (or both) of two reasons:

a) because divorce would be detrimental to the well-being of minor children (in practice, it doesn't happen very often, although it's possible if the children strongly oppose their parents' divorce),

b) because the petitioner is (in the respondent's opinion) solely responsible for the breakdown of marriage and according to Polish law the 'guilty' spouse may not request a divorce (theoretiacally he/she may, but the judge will most likely refuse it)

If the respondent doesn't agree to a divorce and asks the court to dismiss the petition it doesn't happen automatically - first he/she has to prove to the court that the petitioner is indeed at fault and the respondent didn't do anything wrong during the marriage. It may seem simple. but in fact it is not - the judge will have to hear the evidence (mostly witnesses' testimonies) and if it turns out that the respondent is even partly (to a small extent) guilty of the breakdown of marriage, the judge will grant a divorce.

And what if the petitioner is solely at fault and the respondent is completely 'innocent'? Does that mean that the lack of the respondent's consent makes it impossible to get divorced? Usually this sitation happens when one of the spouses is having an affair that turns into a serious relationship. Even if the other spouse refuses to get divorced but the petitioner has been living with the other person for a longer time (maybe even has a child with him/her) and it seems that the marriage cannot be saved, the judge may still grant divorce if he/she believes that it's the right thing to do.  

Considering all the above, the threats like "I will never give you a divorce" do not sound as bad as they may seem.

8. What does a ruling on divorce contain?

It's important to know that according to Polish family law the ruling on divorce in not about divorce only. Some couples just want to get divorced and they think that other issues connected with the children can be resolved at a later time, preferably only between them (especially if they remain on good terms). This is not possible in Poland as the regulations clearly state that the ruling on divorce contains the following:

- the ruling on the termination of marriage itself (the court grants a divorce and if the parties requested it, also decides who's at fault for the breakdown of marriage)

- the ruling on parental authority of the parents over their minor children (the court decides if the parents will continue to share parental authority or one of them will have his authority limited or even terminated)

- the ruling on child support

- the ruling on parental contact (this concerns the parent who will not live with the child and is not a mandatory part of a ruling on divorce - the parties may ask the court to refrain from establishing timeframe for the contact with the children if they can manage it on their own)

- the ruling on the use of the shared accommodation if the spouses still live together (if they live in a flat the court will decide that each of the spouses will have the right to occupy a separate room and have the access to common areas like the kitchen and the bathroom). Such a ruling has nothing to do with the division of marital property), it's thought to be a temporary solution until one of the spouses moves out (unfortunaltey the law doesn't say how long it can last). In most cases spouses ask the court no to rule on the use of shared accommodation as usually of one them has already moved out or is about to do it in the near future.

If one of the spouses requested eviction of the other spouse from a shared home and the court decided that such a request was justified (which can happen only in exceptional cases when the spouse's behaviour is unacceptable, in the Code it's described as 'grossly reprehensible'), the ruling on divorce will also contain a ruling on eviction.

The last part of the ruling on divorce is about the cost of the proceedings - who pays what and to whom.

 

9. Jurisdiction of the divorce court

 

If you're considering getting divorced, one of the first things you need to establish is which court will handle your case. In Poland we have three kinds of courts dealing with civil cases: district court (the court if 1st instance), regional court (the court of 2nd instance) and court of appeals (the court of 2nd instance). As a general rule, when both spouses resided in Poland, divorce petition should be filed with the regional court in whose district the spouses had their last place of residence as long as one of them still resides or stays there. If none of them lives in that area, the court of the respondent's place of residence shall have exclusive jurisdiction (meaning that if you start the proceedings, the court closest to your spouse's place of residence will be competent, not the court closest to where you live). Only if none of these rules can be applied, the competent court shall be that which is  closest to where the petitioner resides (petitioner is the person who starts divorce proceedings). 

When both spouses (citizens of different countries) lived in any of the member states of the European Union, the Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition adn enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction shall apply. Let's say that one of the spouses is Polish and the other French, yet they both lived in Germany and still live there, although now in different cities. Which court will bo competenet for the divorce proceedings? The above mentioned regulation states that the court in Germany should be considered first, as that was the country where both sposuses resided as a married couple and even though they don't live together as a couple anymore, they still reside in Germany. However, if one of the spouses returned to their homecountry, let's say to France, and the other still lived in Germany, the German court could still handle divorce proceedings (Germany was the country where both spouses last lived together and at least on of them still resides there). If both spouses returned to their homecountries, respectively to Poland and France, and the Polish spouse (living now in Poland) wanted to initiate divorce, they could also file a divorce petition with the French court (as the court of a country where the respondent - the other spouse - resides) or with the Polish court (the court of their homecountry, where they happen to live now), provided that they already lived in Poland for at least 6 months before filing a divorce petition.  However, if one of the spouses moved to France and the other to, say, Greece, the person now living in Greece could file a divorce petition with the Greek  court only if they resided there for at least a year. Of course, if both spouses were French but lived in Germany during their marriage, they could always initiate proceedings in their homecountry - in France. I know it may sound complicated but in truth, it gives many options with regard to the court which could handle the divorce.