Pre-Divorce Agreements in Poland – Are They Legally Binding?

Divorce is rarely just an emotional matter. Alongside the personal difficulties, there are almost always practical questions: who gets the car, who stays in the flat, who pays what and when. Many couples try to resolve these questions before the court proceedings through a mutual agreement. But are such agreements actually valid under Polish law? Can you rely on them later in court? And what happens when one party stops honouring their commitments?

Table of Contents

1. Can spouses enter into agreements of this kind at all?
2. What can a pre-divorce agreement cover?
3. A commitment not to seek a fault finding – valid but unenforceable in court
4. What happens when one party does not comply?
5. The trap of mutual obligations
6. Practical guidance
7. FAQ

Can Spouses Enter Into Agreements of This Kind at All?

Yes – and on solid legal grounds. The principle of freedom of contract under Article 353¹ of the Civil Code (Kodeks cywilny) allows parties to shape their legal relationship as they see fit, provided the content or purpose of the agreement does not conflict with the nature of the relationship, the law, or the principles of social coexistence. This principle applies between spouses just as it does between any other parties – regardless of whether proceedings for separation or divorce have already begun.

The Court of Appeal in Poznań confirmed this in its judgment of 27 February 2013 (case reference I ACa 72/13). The case involved spouses who, before initiating separation proceedings, entered into a financial agreement. The husband undertook, among other things, to transfer ownership of a car to his wife once the lease agreement expired – and in the event he failed to do so, to pay the sum of 110,000 PLN as a contractual penalty.

The court upheld the validity of the agreement without hesitation. This is an important signal for anyone wondering whether signing anything “before the verdict” serves any practical purpose. It does.

What Can a Pre-Divorce Agreement Cover?

The scope is broad. Spouses can use such an agreement to address, among other things:

Division of assets – an undertaking to transfer ownership of specific items (a car, personal property, company shares), to make a financial payment, or to settle particular components of the joint estate.

Future obligations – for example, a commitment that one party will take a specific action after the proceedings conclude (selling a property, closing a joint bank account, settling a debt).

Contractual penalties – in case one party fails to honour their commitments. This is a particularly practical tool: a contractual penalty (kara umowna) is enforceable even where the underlying obligation itself cannot be directly compelled by a court. More on this below.

Conduct during the proceedings – for example, an undertaking that one party will not seek a finding of fault (orzeczenie o winie) in the divorce. This is a special case that deserves separate attention.

A Commitment Not to Seek a Fault Finding – Valid but Unenforceable in Court

This is one of the most practically significant aspects of the judgment cited above. The Court of Appeal in Poznań held that an undertaking by a spouse not to seek a finding of fault in separation or divorce proceedings is in principle permissible – but simultaneously unenforceable by compulsion.

What does this mean in practice? If a spouse signs an agreement committing to refrain from requesting a fault finding, and then does so anyway, the other party cannot go to court and ask for the commitment to be enforced in kind. No court can compel a person to refrain from making a particular claim in legal proceedings.

But – and this is the important part – the parties can effectively secure such a commitment through a contractual penalty. If the agreement provides that breaching this undertaking will trigger an obligation to pay a specified sum, that provision is valid and enforceable. In other words: you cannot silence a spouse in court, but you can make silence financially worthwhile.

This distinction – between the validity of an obligation and its enforceability – is one of those legal nuances that carries enormous practical weight, and that most people do not consider before signing.

What Happens When One Party Does Not Comply?

This is where things get complicated – and where clients most often come to us for help. One party signed the agreement; the other has stopped honouring it. What now?

The first and most important point: the failure of one party to perform their obligations does not automatically extinguish the agreement or release the other party from their own commitments. The agreement remains in force – unless the party who has not received performance takes active steps to end it.

Under Article 491 § 1 of the Civil Code, the party affected by non-performance may set an appropriate additional deadline for performance, with a notice that they will withdraw from the agreement if performance does not occur within that period. Only after that deadline passes without result can they effectively withdraw from the contract and seek damages.

Without that formal step, the agreement continues to bind both parties. This often surprises people – there is a common assumption that if the other side “hasn’t delivered,” the agreement “stops applying.” That is not how Polish law works.

The Trap of Mutual Obligations

In the case examined by the Court of Appeal in Poznań, the parties’ obligations were structured as mutual: the husband undertook to transfer the car, while the wife undertook not to seek a finding of fault in the proceedings. The court confirmed that such obligations can be treated as equivalent and reciprocal.

But mutual structures carry their own risk. When one party fails to perform, the other is sometimes tempted to conclude that their own obligation has also lapsed. That assumption is legally incorrect – and leads directly to litigation.

Experience shows that imprecise drafting of the interdependencies between obligations is the most common source of disputes arising from pre-divorce agreements. A well-drafted agreement needs to specify clearly: which obligations are conditional on each other, and which are independent and apply unconditionally regardless of what the other party does.

Practical Guidance

A few principles that genuinely matter when entering into this kind of agreement.

Precision above all. Vague language in an agreement is an invitation to dispute. Every obligation should be described unambiguously: what exactly is to be done, by when, in what form, and with what consequences for non-performance.

Contractual penalties as real protection. If you want the other party to honour their commitments, build in a contractual penalty. It is an effective tool even where the underlying obligation cannot itself be directly enforced by a court – as is the case with obligations concerning conduct in legal proceedings.

Do not assume the agreement lapses on its own. If the other party is not performing, you need to act actively – set a deadline, serve notice of withdrawal. Doing nothing does not work in your favour and does not end your own obligations.

Professional legal assistance when drafting. The Court of Appeal in Poznań noted in the cited judgment that the agreement had been drafted with the involvement of professional legal representatives – and that this was relevant to its interpretation. An agreement written informally over coffee rarely provides effective protection for either party when things go wrong.

FAQ

Does a pre-divorce agreement have to be signed before a notary? Not always – it depends on the subject matter. If the agreement involves the transfer of ownership of real property, a notarial deed is required. For movable assets (such as a car) or financial obligations, a written agreement is sufficient, though notarially authenticated signatures provide stronger evidence if the agreement is ever disputed.

Is a pre-divorce agreement binding on the divorce court? Not directly. The court deciding the divorce or property division is not formally bound by the terms of such an agreement. However, the agreement is binding between the parties as a civil law contract and can be enforced in separate civil proceedings.

What if one of the obligations in the agreement turns out to be impossible to perform? The invalidity of one provision does not automatically render the entire agreement invalid – unless the parties would not have concluded the agreement at all without that provision. This is a matter of interpreting the specific agreement in light of the circumstances of its conclusion.

Can I withdraw from the agreement after signing it? As a general rule, no. An agreement is binding from the moment it is concluded. Withdrawal is only possible in cases provided for by law – for example, if consent was given under a fundamental mistake, duress or fraud – or if the agreement itself contains a right of withdrawal. Simply changing one’s mind is not sufficient.

Can a commitment not to seek a fault finding be enforced in court? Not in kind – a court cannot order a spouse not to make a particular claim in legal proceedings. But such a commitment can be effectively secured by a contractual penalty, making its breach financially costly.

I am a foreign national going through divorce in Poland – are these agreements available to me? Yes. The rules described in this article apply regardless of nationality, provided Polish law governs your case. One practical consideration worth noting: in many legal systems, pre-divorce financial agreements operate within a specific statutory framework (such as prenuptial or postnuptial agreements with formal requirements). Polish law takes a more general approach based on the freedom of contract – which is flexible, but also means the strength of the agreement depends heavily on how carefully it is drafted. Taking legal advice before signing is particularly important if you are unfamiliar with the Polish legal context.

What if my spouse signed the agreement but claims they did not understand what they were agreeing to? A claim that consent was given under a fundamental mistake (błąd) is one of the grounds on which an agreement can be challenged under Polish civil law. Whether such a challenge would succeed depends on the specific circumstances – in particular, whether the mistake concerned a fundamental aspect of the agreement and whether the other party knew or could reasonably have known about it. The fact that the agreement was drafted with professional legal assistance, as in the case before the Court of Appeal in Poznań, makes such a challenge considerably more difficult.

Read more about how the division of joint marital assets works in Poland → [link to relevant page]

Do you need help drafting a pre-divorce financial agreement or have questions about its enforceability? Call: +48 531 335 713 or email: kancelaria@prawnikodrozwodu.pl

This article is for general informational purposes only and does not constitute legal advice. Every family law case is individual and requires analysis of the specific circumstances and documents involved. The law 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 (Family Law Office): 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 | www.prawnikodrozwodu.pl