Divorce Involving a Foreign National — What You Need to Know

Divorce cases with an international element are among the more complex in all of family law. They raise questions that simply do not arise in a straightforward domestic case: which court has jurisdiction, which country’s law applies, and what happens if both spouses file proceedings in different countries at the same time. We have set out the answers below as clearly as possible.

Contents

1. Where to start — bilateral treaties
2. Cases involving EU nationals — EU regulations
3. Which law applies where there is no treaty?
4. Dual nationality — how is it treated?
5. Surname after divorce
6. What if proceedings are started in two countries simultaneously?
7. FAQ

Where to Start — Bilateral Treaties

Poland has concluded bilateral legal assistance treaties with a number of countries, covering among other things the jurisdiction of courts and the applicable law in divorce cases. These treaties take precedence over domestic legislation — which is why the first step is always to check whether such a treaty exists between Poland and the country whose national the other spouse is, and what it provides.

One example is the Convention between Poland and Ukraine on Legal Assistance, signed on 24 May 1993, which contains specific rules on jurisdiction and applicable law for divorces involving nationals of both states.

Cases Involving EU Nationals — EU Regulations

Where both spouses are nationals of EU member states, or live in EU member states, the position is clearer — EU regulations apply and take precedence over domestic law.

Jurisdiction — which court has the right to hear the case — is governed by the Brussels IIb Regulation (Council Regulation (EU) No 2019/1111), which has been in force since 1 August 2022. It sets out when Polish courts have jurisdiction in a case with an EU dimension — for example where both spouses habitually reside in Poland, or where the petitioning spouse has lived in Poland for at least one year before filing.

Applicable law — which country’s law the court applies when assessing the grounds for divorce — is governed by the Rome III Regulation (Council Regulation (EU) No 1259/2010), in which Poland participates. Within certain limits, spouses may themselves choose the law applicable to their divorce. If no choice is made, the Regulation sets out a hierarchy of connecting factors — most commonly the law of the state where the spouses have their common habitual residence will apply.

Which Law Applies Where There Is No Treaty?

Where the case is not covered by a bilateral treaty or an EU regulation, Polish domestic law applies — specifically the Act on Private International Law (ustawa Prawo prywatne międzynarodowe) of 4 February 2011.

Under Art. 54 of that Act, divorce is governed by the following rules, applied in order:

• the common national law of the spouses — where both hold the same nationality,
• the law of the state of their common habitual residence — where they have different nationalities but live in the same country,
• the law of the state of their last common habitual residence — where they no longer share a place of residence, provided one of them still lives there.

It is worth noting that Art. 54 applies only to divorce. Other proceedings — such as annulment of marriage or a declaration that a marriage did not validly exist — are governed by separate provisions.

Dual Nationality — How Is It Treated?

It is increasingly common for one spouse to hold both Polish nationality and the nationality of another state. Art. 2 of the Act on Private International Law sets out how to determine the applicable national law in such cases.

The rule is straightforward: a Polish national is always subject to Polish law — even if another state’s law also regards that person as its national. Where a foreign national holds two or more nationalities, the law of the state with which they are most closely connected applies.

In practice, this means that a spouse who has acquired Polish nationality will be treated as a Polish national — and Polish law will as a rule govern their personal status.

Surname After Divorce

The question of surname following a divorce in a cross-border marriage can also be non-obvious. Under Art. 15(2) of the Act on Private International Law, the choice of surname on dissolution of a marriage is governed by the national law of each spouse separately. This means that each spouse’s entitlement to change their surname is assessed under the law of their own country — and it is possible that different rules apply to each of them.

What If Proceedings Are Started in Two Countries Simultaneously?

It does happen that each spouse files a divorce petition in their own country at roughly the same time. In that situation, the rule of priority applies: the case is heard by whichever court was seised first. The court before which proceedings were started second must stay or dismiss those proceedings.

In EU cases, this principle is set out in the Brussels IIb Regulation. In cases involving non-EU states, Art. 1098 of the Code of Civil Procedure (Kodeks postępowania cywilnego, k.p.c.) applies.

From our experience at the firm, speed matters enormously in cross-border cases. The party who files first often gains a significant advantage in terms of which court will hear the case — and which country’s law will be applied.

FAQ

Can I divorce in Poland if my spouse lives abroad? Yes — provided the conditions for Polish court jurisdiction are met. Key factors include where the spouses last lived together and how long the petitioning spouse has been living in Poland.

Does a Polish court always apply Polish law? No. A Polish court applies whichever law is indicated by the applicable conflict-of-law rules — this may be Polish law, but it may equally be the law of another state, depending on what a treaty, EU regulation or the Act on Private International Law provides.

What if my spouse is a national of a country outside the EU? The first step is to check whether Poland has concluded a bilateral legal assistance treaty with that country. If so, the treaty takes precedence. If not, the Act on Private International Law applies.

Can we choose which country’s law governs our divorce? In cases covered by the Rome III Regulation — yes, within defined limits. In cases outside the scope of that Regulation, the applicable law is determined by statute, without any choice being available to the parties.

Why is it worth taking legal advice in a cross-border divorce? Cases involving a foreign element require familiarity with domestic legislation, EU regulations and bilateral treaties simultaneously. An error in assessing jurisdiction or applicable law can have serious consequences for the entire proceedings — and is difficult to correct once the case is under way.

Need help with a divorce involving a foreign national? Call +48 531 335 713 or email kancelaria@prawnikodrozwodu.pl

This article is for general informational purposes only and does not constitute legal advice in any individual case. Every family law matter requires analysis of the specific circumstances and documents involved. The firm accepts no liability for actions taken on the basis of the information contained in this article. For legal advice tailored to your situation, please contact our office.

Kancelaria Prawa Rodzinnego Adwokat Michalina Koligot, Adwokat Marta Krzyżanowicz, Adwokat Anna Konrady, Radca Prawny Joanna Jędrzejewska ul. Mickiewicza 18a/3, 60-834 Poznań | Tel.: +48 531 335 713 | kancelaria@prawnikodrozwodu.pl | prawnikodrozwodu.pl