A divorce decree has a constitutive character, establishing a new legal status, effective from the date of its finality. Upon the date of finalization of the divorce decree, all legal relationships between the former spouses that were dependent on the marriage come to an end.
A divorce decree must include a determination of the fault of the spouses in accordance with the principles outlined in Article 57 § 1 and 2 of the Family and Guardianship Code, as well as a decision regarding the amount of child support for the minor child of the parties, if the child was born of the marriage or was adopted by both parties. It must also address parental authority, either by leaving it to both parents if they previously held full parental authority, or by granting it to both parents if there had been prior court intervention in its exercise. Alternatively, it may assign parental authority to one parent, limit the authority of the other parent, deprive one or both parents of parental authority, or suspend it for one or both parents. The decree must also address the manner of use of the spouses' shared residence after the divorce (Article 58 § 2 of the Family and Guardianship Code).
The divorce decree may also include determinations regarding the parents' contact with the minor child, the eviction of one spouse from the shared residence at the request of the other spouse due to grossly improper conduct that prevents cohabitation, as well as decisions on the division of the shared residence or its assignment to one spouse, upon mutual agreement of the parties if possible. Additionally, the decree may order the division of the spouses' joint property upon the request of one spouse, provided that such division does not cause undue delay in the proceedings.
In principle, the court adjudicating the divorce may decide on parental authority in two ways. Thus, considering the child's right to be raised by both parents, the court may leave parental authority to both parents if they have submitted a written agreement on how they will exercise parental authority and maintain contact with the child after the divorce, and if such an agreement is in the child's best interest. In the absence of such an agreement, the court may decide at its discretion on how parental authority will be exercised and how contact with the child will be maintained after the divorce, taking into account the child's right to be raised by both parents.
If the court finds that the failure to submit a parental agreement stems from a lack of cooperation between the parents, and concludes that there is no prospect for such cooperation after the divorce, which may indicate a lack of appropriate parenting skills on the part of one parent, the court will depart from the principle of leaving parental authority to both parents and will designate a primary custodial parent, entrusting them with parental authority while also determining the extent of the other parent's rights to participate in decisions concerning significant matters related to the child.
The limitation of parental authority in a divorce decree is a consequence of the need to clarify in which matters concerning the child the parent who is not entrusted with the exercise of parental authority will have the right to co-decide along with the parent who is entrusted with the exercise of parental authority. Importantly, in practice, the management of the child’s assets is always conducted by the parent who has been granted parental authority, as the other parent’s authority is limited solely to matters concerning the child’s person.
When deciding on the limitation of parental authority, the court may also determine that the parent whose authority is being limited will co-decide on all significant matters concerning the child. In practice, this could become a source of conflict between the parents, and in extreme cases, could lead to the blocking of every decision concerning the child. Therefore, it is essential for the court to precisely define the specific matters in which the parent with limited parental authority will be allowed to co-decide.
Before making a decision on which parent should be entrusted with parental authority, the court must assess which parent has better caregiving and educational competencies. In cases where there is no positive outlook for reaching an agreement between the parents, the court may request expert opinions from psychologists and educators to properly evaluate the family situation.
Another important issue on which the court adjudicating the divorce may rule is the matter of contact with the child. If the parties submit a joint motion to waive the ruling on maintaining contact with the child, and the court does not find grounds to limit or prohibit such contact, then no ruling on the matter of contact will be included in the divorce decree.
The outcome of the decision regarding parental authority directly impacts the arrangement of the divorced spouses' child support obligations. In situations where parental authority is granted to both parents and the child's place of residence is established with one parent, who has day-to-day care of the child, or when the court entrusts one parent with the exercise of parental authority, child support payments shall be made to that parent.
The fact that a child support obligation toward one of the parents was determined by a final judgment in another case prior to the initiation of the divorce proceedings does not exempt the court adjudicating the dissolution of the marriage from addressing the issue of child support in the divorce decree. Importantly, the voluntary payment of child support by one parent does not justify a request for the dismissal of a claim for child support made by the other parent during the divorce proceedings.
If the spouses occupy a shared residence, the court, in the divorce decree, will also decide on the manner of use of that residence during the period of cohabitation of the divorced spouses. At the request of one spouse, the court may order the eviction of the other spouse, but only in exceptional cases where one spouse's grossly inappropriate conduct makes cohabitation impossible.
Upon the mutual request of the parties, the court may also decide on the division of the shared residence or grant the residence to one spouse if the other spouse consents to vacate the residence without being provided with alternative accommodation or a substitute dwelling, provided that the division or assignment of the residence is feasible.
In the divorce decree, the court may divide the entire joint property, provided that one spouse makes such a request and that doing so does not cause undue delay in the proceedings. However, the effectiveness of the division of joint property is contingent upon the finalization of the divorce judgment.
The resolution of a request for the division of joint property will not cause undue delay in the proceedings if there is no dispute between the parties regarding the composition and method of division of the property. In practice, courts are often reluctant to divide joint property when granting a divorce, even when resolving disputed issues, or issues that the court is obligated to address ex officio, requires only a brief and highly limited evidentiary proceeding.
The subject of the division of joint property may include those assets that existed in the joint property of the spouses at the time of the judgment. In its ruling, the court is required to allocate the existing assets to one of the former spouses and settle their value. Assets that have been consumed in the course of normal use or lost after the date of the termination of the joint property but before the division is made are not subject to settlement.
When determining the value of the joint property, discrepancies have arisen in the case law regarding the valuation of real estate encumbered with a mortgage securing a loan granted to the spouses. In its resolution of March 28, 2019, III CZP 21/18, the Supreme Court held that the value of real estate encumbered with a mortgage securing a loan granted to the spouses, which the court allocates to one of the spouses, should be determined, unless important reasons suggest otherwise, without taking into account the mortgage encumbrance.
The prevailing principle that prohibits the initiation of a separate proceeding for the satisfaction of family needs or for spousal or child support between the spouses or between them and their minor children during the course of a divorce or separation proceeding does not preclude such cases from being brought before the filing of a divorce case. If support proceedings were initiated before the filing of the divorce action, they must be suspended from the moment the divorce action is filed with respect to claims for the period after the filing of the divorce action.
In cases with a foreign element, it is necessary to determine whether the Polish court will have jurisdiction over all matters included in the divorce case under Polish law.
The court must consider the lack of jurisdiction ex officio, even if the case is already in progress, and at any stage of the proceedings.
If the national court becomes aware of an ongoing divorce or separation case in another member state, it must verify before which court the action was first brought. If the action was first brought before the court of another member state, the Polish court should suspend its proceedings until the court of the other member state issues a ruling on its jurisdiction. If the court before which the action was first brought finds itself competent, the court before which the action was later brought should decline jurisdiction in favor of the court of the other member state. Conversely, if the court of the other member state finds itself incompetent, the court before which the action was later brought should resume the suspended proceedings and continue with the case.
An important aspect influencing the determination of the proper grounds for adjudicating a divorce case with a cross-border element is the examination of jurisdictional grounds concerning parental responsibility, as they serve as a reference point for establishing jurisdiction over child support.
The concept of parental responsibility encompasses three elements that the divorce court must mandatorily address when the parties have minor children: parental authority, the child's habitual residence, and contact arrangements for the parent with whom the child does not reside permanently.
The determination of the child's habitual residence is based on the totality of the relevant factual circumstances of the case. In addition to the child's physical presence in a Member State, other factors must demonstrate that this presence is neither temporary nor incidental and that the child's residence indicates a certain degree of integration into the social and family environment in that state, characterized by some permanence or regularity. In making this assessment, particular attention must be paid to the stability, legality, conditions, and reasons for the family's stay and relocation to the Member State, the child's nationality, the place and conditions of schooling, language proficiency, and the child's family and social ties in that Member State.
To adjudicate both divorce and parental responsibility jointly, certain conditions must be met. First, there must be a prorogation of jurisdiction to the court with jurisdiction over the divorce, separation, or annulment proceedings, which is not the court of the Member State of the child's habitual residence. Second, the case concerning parental responsibility may be transferred to the divorce court as the court better positioned to adjudicate the matter.
In the first scenario, the possibility of combining divorce proceedings with rulings on parental responsibility depends on the simultaneous fulfillment of three conditions: first, at least one of the spouses must hold parental responsibility for the child; second, the spouses must explicitly or otherwise clearly accept this jurisdiction at the time the divorce proceedings are initiated; and third, the jurisdiction of the divorce court must be consistent with the best interests of the child.
Recognition of jurisdiction will not occur if the respondent does not participate in the proceedings, does not respond to the served statement of claim, and, at the first action taken in the case, contests the Polish court's right to adjudicate matters related to the parties' mutual child. Jurisdiction must be accepted personally by the spouses and not, for example, through a court-appointed guardian for a defendant whose whereabouts are unknown. Consequently, the lack of contact with the defendant prevents them from obtaining the necessary information to either recognize or challenge the jurisdiction.