In situations of divorce of an international couple the issue of jurisdiction for ruling on the matter is of a core importance. In other words it is sufficient to establish the courts of which state will be competent to judge in that situation. If spouses from the member states of the EU are involved, it is worth to look at the provisions of 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 (Brussels II bis).
EU Rules on Jurisdiction in Cases of Divorce and in Matters of Parental Responsibility
According to Council Regulation (EC) No 2201/2003 of 27 November 2003, as a rule (reflected in article 8) the courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State. In turn, in matters related to divorce, legal separation or legal annulment jurisdiction is established in accordance with article 3 of the mentioned Regulation. In such situations jurisdiction depends on the country where the spouses live or which citizenship they possess. A situation may arise, when the jurisdiction for divorce and for parental responsibility in the process between the same parts is different. In this context one should take into account the rules contained in article 58 paragraph 1 of the Polish Family and Guardianship Code establishing the principle of integrity of a ruling on the divorce matter. Under the article the mentioned ruling shall also concern the issue of parental responsibility. Hence, the question arises: can Polish courts, adjudicating in an international divorce case, skip the issue of parental responsibility, since jurisdiction for the latter is vested in the courts of another member state according to EU law?
Different Jurisdiction in Divorce Matter and in the Matter of Parental Responsibility
The posed question is not merely theoretical and abstract. In practice one may come across a situation, where, basing on EU law, jurisdiction for divorce and for parental responsibility are different. On exactly the same situation the Court of Appeal in Białystok ruled in December 2015 (I ACz 1487/15). In that case the respondent was a Polish woman residing with the child in Germany. A Polish applicant, who also resided in Germany, lodged a divorce claim before the Polish court asking for the decision related not only to divorce, but also to parental responsibility. Polish jurisdiction for the divorce matter stemmed from the common Polish citizenship of the spouses which is in accordance with EU norms. However, the situation caused the question whether the Polish court is allowed not to rule on parental responsibility in the divorce case contrary to the provisions of the Polish Family and Guardianship Code. The district court decided that, pursuant to article 58 of the mentioned code, Polish Courts are to adjudicate on both matters, namely: divorce and parental responsibility. Nevertheless, the respondent appealed the court’s decision. The Appeal Court stated that provisions of EU law shall prevail over Polish laws. This statement was based on the content of Article 91 paragraph 1 of the Polish Constitution. Taking into account the mentioned fact, the Appeal Court ruled that in the case reviewed jurisdiction regarding parental responsibility lies with German courts.
Summing up, it should be noted that in Poland courts may separate issues of divorce and parental responsibility despite the rules contained in the Polish Family and Guardianship Court. This might happen when, according to EU law provisions, jurisdiction in the mentioned matters is diverse.