Marriage concluded abroad vs. divorce and decree of parental responsibility in Poland

Nowadays our world is more and more globalized. It is very often the case that people from different parts of the world are getting married. Often their lives may turn out differently, which of course happens in every marriage. But what if people from different countries, who got married abroad, want to get divorced in Poland and additionally there is the question of custody of a minor child? This issue is very closely connected with the law, therefore in this article we will try to describe step by step how such a path looks like and what should be paid attention to.

Let us start from the fact that pursuant to Article 56 of the Polish Civil Code (KRO), a marriage may be dissolved by divorce only in a situation where there was a complete and permanent dissolution of marriage between the spouses. Matrimonial cases and cases concerning matrimonial property relations belong to domestic jurisdiction in situations described in Article 11031 of the CPC (KPC). In October 2020, the divorce case of a Chinese woman and a Polish man married in the US was referred to by the District Court in Warsaw (VI C 2248/17). In this case the defendant was a Chinese woman living with her daughter in the USA. Her husband, whom she met and married in the U.S., returned to Poland several years later, after his visa had expired, and petitioned the local court for divorce and parental authority. After examining all grounds and circumstances, the court in Poland found that the marriage had broken down permanently and completely, and that the emotional, economic, and physical ties between the spouses had ended, and on that basis dissolved the marriage of the respondent and the petitioner.

The next step after the court dissolved the marriage by divorce was the issue of alimony and custody of the joint minor child. Here you should consider whether the court that granted the divorce will also have jurisdiction to decide on the issue of custody of the minor? In such a situation everything depends on the place of his/her permanent residence. It should be examined where the child has its center of life. In a situation where the child does not reside in Poland but in another country, which is the child’s center of life, reference should be made to Article 5 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children, done at The Hague on 19 October 1996, according to which the competence to take measures for the protection of the child’s person or property belongs in principle to the courts of the country in which the child has his or her habitual residence. After analysis, one may come to the conclusion that it is indeed difficult for a court, which has no real possibility of assessing the situation of a minor, his way of life, to assess parental authority. Thus the issue of custody may change depending on where the child resides permanently. This is what happened in the case cited above. Despite the court’s divorce decree, it did not adjudicate the minor’s situation because her center of life was the U.S.

To sum up, pronouncing a divorce by a court on the territory of the Republic of Poland is not at all equivalent to pronouncing a judgment on the issue of custody of a minor. In such a situation everything depends on the national jurisdiction to hear cases related to parental responsibility. The fact that a court has jurisdiction in one case does not mean that it will also have jurisdiction in the next case, and this is why a Polish court has the possibility to separate the issues of divorce and parental responsibility.