Polish PIL – Int’l Family
and Inheritance Law
Dr. Mateusz Pilich
Chair in Int’l Private and Trade Law,
University of Warsaw
Law Applicable
to the Effects of Marriage
Notion
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Widely understood, the ‘effects’ of the marriage mean every legal consequence following
from the fact that two natural persons are married
Otherwise speaking: both property and personal effects, which may comprise:
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The change of the family name of the persons concerned
The obligations and duties weighting on them, e.g. the duty to contribute to the satisfaction of
the family’s needs
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The legal representation of one of the spouses by the other
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The patrimonial relations between the parties
Issues excluded from the scope:
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Filiation: e.g. the presumption of the legitimate descent, the descent from the man having an
intercourse with the mother within the legal conception period, or of the motherhood according to
the fact of giving birth to a child, etc.
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subject to the law designated by Article 55 PILA
Succession matters: the question whether a surviving spouse belongs to the circle of statutory
heirs in the case of death of the other
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law designated by Article 64 ff PILA applies
Effects of Marriage- Basic Rules
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All covered by the same applicable law, which is
(Article 51 PIL 2011) the law of their current
common nationality (paragraph 1), and in the absence
of this, their common country of permanent
residence (domicile) or habitual residence
As the ‘last resort’, the law otherwise strictly
connected with both parties shall apply
„Current”  the law governing the relationships
between spouses may change with the lapse of time
(according to the change of common nationality,
residence, etc.)
Change of the Law Applicable
Example
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A woman of Polish nationality married in 2001 an Austrian. They
have no common nationality and did not conclude any marriage
agreement regulating the property issues between them. Both lived
until 2009 in Poland, where they bought an immovable. Their title of
ownership was entered into the land register (ksiega wieczysta):
„Owners: spouses A. indivisible joint marital co-ownership”
(according to Polish law). In 2009 the couple moves to Austria. Does
it make any difference as to the marital property?
Comments
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Law applicable to marital property changed, the law of Austria now applicable
The standpoint of the latter with regard to the matrimonial property regime
differs considerably from the law of Poland (here: the joint and undivided
matrimonial estate – with certain exceptions, in Austria: spouses' separate
estates)
Hence the immovable property is in fact transferred to the fractional coownership, the rights in fractions being considered as the personal property of
each spouse
But it should not prejudice the previous position of the third parties (e.g.
of the Polish bank which credited the purchase of the immovable and secured its
rights against the debtors with a mortgage) – see Article 53 PIL 2011
EU legislative initiative – Proposal for a Council Regulation on jurisdiction,
applicable law and the recognition and enforcement of decisions in matters of
matrimonial property regimes, Doc. No. COM(2011) 126 final, published on 16
March 2011
Matrimonial Property
and the Marriage Agreements
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The property regime under the marital property agreement differs as to the time of
connection: the law applicable is more stable and unlikely to change
Under the new Law of 2011 (Article 52), the spouses may choose the law applicable to the
marital property from among one of following laws: the law of nationality, domicile or
habitual residence of the either of them
Admittedly, the choice may be changed afterwards, but it is without the prejudice to the interests
of the creditors (Article 4(2) PIL 2011) – "vested rights" doctrine
In the absence of such choice, the law applicable to the effects of marriage at the time of
entering into the marriage agreement shall apply
Europeanization of the marital property regimes – Proposal for a Council Reg. on jurisdiction,
applicable law and the recognition and enforcement of decisions in matters of matrimonial
property regimes COM(2011)0126 final
Marriage and the Family Name
Example
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Polish national Monika H. married a Turk
Mehmet F. The marriage took place in
Warsaw where the marriage certificate was
drawn up. Several days later the newlyweds
left for Istanbul, where the bridegroom is
domiciled. Which law should apply?
Comments
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Article 15(1) PIL 2011 subjects the
name (or surname) of the natural
person to the law of his or her
nationality – the same about the
choice of the (sur)name by the spouse
The exception is, however, the change
of the name which basically shall be
subject to the law applicable to the
Law Applicable
to Dissolution of Marriage
and Legal Separation
Marriage dissolution – a case
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The former Iraqi national Iusuf S., who used to
serve as the translator to Polish troops in his
country of origin, moved to Poland in 2003.
2005 he divorced his wife pronouncing the socalled "talaq" (the divorce formula). 2010 he
was granted the Polish nationality. 2011 he
met a Polish woman whom he intends to
marry. Now he is seeking the recognition of his
previous divorce before the Polish court. Which
law shall govern the substance of his claim?
Law applicable to the divorce
and legal separation
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Polish law treats the divorce as matters reserved for the State court’s decision (Article 56 of
the Family and Guardianship Code)
Whether our law applies or not, depends on the circumstances of the case - it is the law of
common nationality of the parties at the time of the request for the dissolution of
marriage (Article 54 PIL 2011)
no common nationality => the law of common domicile or habitual residence or,
finally, Polish law as the last resort shall apply
„At the time of the request” means obviously not the time of bringing the claim into the
court but it is just the matter of fact (the moment when the spouse disclosed his or her
intention to divorce is decisive)
The law applicable governs:
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The form of the dissolution of marriage (should it be official or private)
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The effects of the dissolution in the sphere of personal and property regime
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Maintenance obligations between the divorced spouses
Comment on the Case #1
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For the Polish court seized with the case of Jusuf S., the applicable law shall
be the law of former spouses' common nationality at the time of making
talaq
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The problem lies in the nature of the divorce according to Polish law – may
we recognize foreign unilateral private divorces?
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Public policy exception plays a role
Unilateral repudiation may violate the durability of marriage and the equality of
sexes- the wife has no such a right (see decision of Appeal Court in Katowice
20/8/2009, I ACa 410/09)
As to the legal facts made abroad, public policy should be weakened (French:
ordre public attenué; German: Innen- or Binnenbeziehung)
The repudiation probably could be recognized in this case; otherwise if e.g.
Jusuf S. was a resident of Poland while repudiating his Iraqi wife
Polish conflicts rules for the divorce
and the Rome III Regulation
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Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing
enhanced cooperation in the area of the law applicable to divorce and legal
separation (Rome III)
The Commission’s Proposal issued in order to put an end to "forum shopping" in
divorce cases (see Brussels IIbis and the ECJ in C-168/08 Hadadi)
The resistance of Sweden (the country with a very ‘divorce-friendly’ regime), whose
government worried about obstacles for its nationals wanting to divorce abroad or
mixed couples initiating proceedings in a country
Poland – rather reluctant (a reversed trend: the policy of the ‘protection of the family’
might be undermined), European policy considerations might have played a role
Enhanced co-operation as the half-measure
The Regulation entered into force on 21 June 2012
14 EU countries participating up to now (the 15th one – Lithuania – applies the
Regulation as from 22 May 2014)
Rome III – does it make
any sense to stay away, Poland?
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Brussels IIbis Regulation (No. 2201/2003)
applicable to international matrimonial and
family cases
It enables the automatic (ex lege) recognition
of a foreign divorce or separation decree
within the whole EU
Forum shopping easier than ever before
Obviously, Poland should participate in the
enhanced co-operation
Law Applicable
to Quasi-Marital Couple Unions
Notion of the Quasi-Marital
Couple Unions
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From the substantive law perspective, natural persons
may live in the couples which may be legally recognized
or not
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cohabitation (certain legal effects may be attached thereto)
‘common-law marriage’ (some US states, e.g. Texas)
registered partnerships
homosexual marriage
Polish family law knows only the ‘classical’ heterosexual
marital union – what about foreign ones?
The PIL Act 2011 contains no express rules of conflict
relating to any of these categories
Characterisation
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Ways of characterisation:
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‘marriage’ (we apply conflicts provisions concerning regular marriage institution,
Articles 49 ff PIL)
quasi-‘contract’, ‘co-property’, etc. (we apply various provisions on the law
applicable, depending on the issue at hand)
we apply Article 67 PIL (a general gap-filling rule)
Characterization issues and applicable law:
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homosexual marriage – its common feature in substantive laws is just the
resignation from the sex difference as a constitutive factor of marriage
such unions could fall under the scope of the provisions of the PIL
applicable to marriage
registered partnerships are not marriages even if they are modeled thereon
(a substitute of marriage for gay and lesbian persons) – it is claimed that the
law of the country of registration (lex loci registrationis) shall apply
Public Policy Considerations
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Article 18 of the Polish Constitution: Marriage, being a union of a
man and a woman, as well as the family, motherhood and
parenthood, shall be placed under the protection and care of the
Republic of Poland.
It should not make the obstacle to recognize at least some effects
of foreign marriages or registered partnerships, even not concluded
between the parties of different sex
Changing attitude of the courts may soon iniciate an open
discussion
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Resolution of the Supreme Court of 27 July 2012, III CZP 65/12: right
of tenancy for the homosexual partner of the deceased tenant
Relationship to Children
and Parental Responsibility
Child’s Origin (Article 55 PILA)
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Generally speaking, the child’s origin may be established:
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All the ways of establishing the origin of a child are subject to the law of his or her
nationality (not to the law of the nationality of parents)
Variations as to the authoritative time of connection:
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compulsorily (determination of parenthood = affiliation)
voluntarily (recognition of parenthood)
Compulsory establishment of parenthood/origin – the time of the child’s birth is decisive (except for
the case of no way of establishment of parenthood according to that law- the law as from the day of the
determination of parenthood shall apply)
Voluntary establishment of parenthood/origin – the time of the recognition is decisive (the reversed
scheme: in the absence of the possibility of recognition, the law as from the day of his/her birth applies)
Questions falling within the scope of the applicable law are esp. the affinity (whether the child is
sb’s descendant) and whether or not the child may use the family name of his or her
father or mother
Parental responsibility, property and personal consequences of parenthood are governed
by the law specified by the Hague Convention (see next slide)
Recognition of an unborn child (foetus) subject to the law of the mother’s nationality at the
moment of the recognition
Parental Responsibility
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A variety of questions, inter alia the minor's respresentation by the parent(s), the
power to decide on the child’s personal matters, the place in which the child has
his/her residence, etc.
Since 11 Jan. 2010 governed by the Hague Convention on Jurisdiction,
Applicable Law, Recognition, Enforcement and Co-operation in Respect of
Parental Responsibility and Measures for the Protection of Children
Main features of the Convention:
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A child is defined as a person under 18 (older persons characterized as ‘adults’, no
matter what the age of consent)
Jurisdictional, substantive and conflicts provisions – an interesting combination of
different methods
With regard to the ex lege parental responsibility, law of the child’s (current)
habitual residence applies (subject to change with the lapse of time)
Measures taken by the competent authorities of the Contracting States:
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Parallelism between the jurisdiction (forum) and law applicable (ius): authorities at the place
of habitual residence of the child have jurisdiction (Article 5) and they apply their own law
(Article 15(1))
Automatic effectiveness (recognition) of the protective measures in all the Contracting
States (Article 23)
Guardianship
and Protective Care
Children (Article 59 PILA)
Reference made simply to the 1996
Hague Convention on the Parental
Responsibility
 Problems with the characterization of
the foster care over children (e.g. the
institution of kafala widely known in
Islamic countries)
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Adults (Article 60 PILA)
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Assumption of being placed under the protective care is
the incapacitation ( Article 13 PILA)
Protective measures formally governed by the law of
nationality of the protected person (Article 60(1) PILA)
Polish law applicable where the Polish court decides with
respect to the foreigner domiciled or resident in Poland
(Article 60(2))
The exception is a rule – courts in Poland do not have
jurisdiction as to foreigners resident abroad
Poland signed but did not ratify the 2000 Hague
Convention on the International Protection of Adults
Law Applicable
to the International Adoption
Sources of law
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Article 57 PIL:
1. Single adoption shall be subject to the law of the country
whose nationality the adopter (the adopting party) holds
(paragraph (1))
2.
Common adoption shall be subject to the law of the country
whose nationals both adopters are (failing that, to the law of
their common domicile, habitual residence, or to the otherwise
strictly connected law)
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Article 58 PIL:
 Adoptee’s personal law has to be observed as to the law
provisions concerning:
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his, and his legal representative’s, consent to the adoption;
the permission of the competent State authority;
the adoption restrictions because of the change of the place of previous the
permanent residence to the place of residence in the other country
Relationship between Articles 57 and 58
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Both rules apply simultaneously, no matter whether
the adopter is a single person or the adoption is
common
The application of the laws designated applicable
(adopter’s and adoptee’s personal law) is
cumulative, which means that the adoption cannot
be valid without respecting both
The law designated by Article 58 applies only to
questions listed therein, law designated by Article 57
remains generally applicable
Consequences of the Adoption
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Applicable law differs according to the issue
in question
Examples
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Family name of the adoptee: law generally
governing the adoption (Article 57)
Affinity between parties to the adoption as well as
between the adoptee and his or her natural kin:
law governing adoption (Article 57)
Adopter's parental responsibility: 1996 Hague
Convention
Maintenance: 2007 Hague Protocol (see infra)
Law Applicable
to Maintenance Obligations
Sources of law
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Article 63 PIL 2011 entered into force on 18 June 2011
Until this date, the 1973 Hague Convention on the Law Applicable to Maintenance
Obligations (Journal of Laws 2000 No. 39, pos. 444)
New 2011 Law on the Private International Law:
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contains only the referral to another instrument, namely to the Council Regulation (EC) 4/2009 of
18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and
cooperation in matters relating to maintenance obligations (OJ L 7, 10/01/2009, s. 1)
that Regulation itself refers in its Article 15 to the international convention - the Hague Protocol on
the Law Applicable to Maintenance Obligations (see Exhibits)
Under the Protocol (Article 24), an international organization of the economic integration (like the
EU) may acceed to the Protocol instead of the Member States
Council of the EU did so pursuant to its Decision No. 2009/941 of 30 Nov. 2009 (OJ L331,
16/12/2009, p. 17)
The Protocol has the retrospective effect, i.e. it applies in the Member States after its entry into
force also to the maintenance cases which raised before that date
In other words:
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Rulings on the international maintenance obligations before 18 June 2011 shall be subject to the
law specified by Hague Convention
Court decisions in these matters as from 18 June 2011 shall be subject to the law specified by the
Hague Protocol
Maintenance Convention and Protocol
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Both instruments show similarities:
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The notion of the „family law relationship” from which the maintenance obligation
follows was not defined and shall be subject to the flexible interpretation
The law specified as applicable applies universally (whether or not it is the law of the
Contracting State)
The main connecting factor is the current habitual residence of the
maintenance creditor
The change of the place has the effect in the change of applicable law (it does not
affect the right to maintenance with regard to periods of time which have passed)
The differences are numerous and important:
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The Protocol lets the parties choose the applicable law (the Convention does not)
The sequence of the connecting factors differs considerably(e.g. the law of parties’
common nationality goes next to the habitual residence of the creditor under the
Convention – and under the Protocol it is applied only as the ‘last resort’ between
descendant and ascentant persons)
Law applicable
to inheritance matters
Sources of law
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At the moment, no European instrument (the Council
and EP Regulation on the law applicable to inheritance,
the so-called ‘Rome IV’, shall apply from 17 August
2015)
Polish domestic law – PIL 2011, Articles 64 to 66
International Conventions: Convention on the conflicts of
laws relating to the form of testamentary dispositions,
concluded in the Hague on 5 October 1961 (Journal of
Laws 1969 No. 34, pos. 284) – with regard to the form
of wills
Connecting Factors
– The Substantial Issues
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If the decedent makes a will, he or she may choose as applicable (Article 64(1) PIL 2011):
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The law of his or her nationality, or
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The law of the country in which he or she is domiciled (permanently resident), or
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The law of the country of his or her habitual residence
May the decedent choose the law even if in fact he or she does not dispose his property by will (i.e. where there is no
substantive disposition at all)?
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In the absence of any choice whatsoever (no matter express or implied), the law applicable shall be the law of the
decedent’s nationality at the time of his or her death
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Questions governed:
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who the intestate heir is,
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order and proportion of coming into the inheritance,
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how the interests of the nearest family circle concerning the inheritance are protected,
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whether the decedent may dispose of his or her assets by a testamentary legacy
As to the last point: the transmition of the title to the particular object of property (e.g. of the immovable, the collection of
pieces of art, a car) is subject to the lex rei sitae
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Substantive validity of testaments is subject to the law of nationality of the decedent at the time of making this act (it is
reasonable, as the decedent can hardly foresee whether his or her future nationality will possibly make his or her will void or
voidable)
Convention on Form of Wills
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Article 66 PIL 2011 refers to the 1961 Hague Convention on the Conflicts of Laws Relating to the
Form of Testamentary Dispositions (in Exhibits)
The Convention applies universally (irrespective of the status of the country whose law is
specified as applicable)
The law specified as applicable (fully alternative):
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The law of the decedent’s nationality (lex patriae) at the time of either making the will or the testator’s
death
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The law of his or her domicile (lex domicilii) at either of the above mentioned moments
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The law of his or her habitual residence at either of the above mentioned moments
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The law of the country where the will was made (lex loci actus)
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With regard to immovables - the law of the country where the immovable is situated (lex rei sitae)
Poland ratified the Convention with the reservation pursuant to its Article 12, which stipulates that
the State may exlude from its application to such testamentary clauses which do not relate to
matters of succession (e.g. the establishment of a foundation under Polish law, the recognition of
the child by the testator under Italian Civil Code)
Thanks for your attention
during the whole semester!