The law applicable to divorce is determined by four conflict-of-law rules contained in the Private International Law Act or by international agreements. The primary determinant is the common national law of the spouses at the time the divorce is sought. The dissolution of the marriage is governed by the spouses’ common national law at the time of filing for divorce. In the absence of such common national law, the applicable law is that of the country where both spouses have their habitual residence at the time of filing. If they do not share a habitual residence at that time, the applicable law is that of the country where they last shared a habitual residence, provided that one of them still resides there. If none of these criteria are met, Polish law shall apply.
For proceedings initiated after 1 August 2022, Council Regulation (EU) on jurisdiction, recognition, and enforcement of decisions in matrimonial matters and matters of parental responsibility, and on international child abduction, shall apply. Under this Regulation, jurisdiction in matrimonial matters is based on two equal connecting factors: the spouses’ habitual residence or nationality. Jurisdiction is not limited to the courts of the country where the respondent is habitually resident but extends also to the country where, under additional conditions (such as the period of stay, nationality, or connection to the last common habitual residence), the claimant has habitual residence. Jurisdiction is also vested in the courts of the country of which both spouses are nationals.
In matters of divorce, legal separation, or annulment of marriage, the courts of a Member State shall have jurisdiction where: a) on the territory of that State: (i) both spouses are habitually resident; (ii) the spouses were last habitually resident together, provided one of them still resides there; (iii) the respondent is habitually resident; (iv) in the case of a joint application, either spouse is habitually resident; (v) the claimant has been habitually resident for at least one year immediately preceding the application; or (vi) the claimant has been habitually resident for at least six months immediately preceding the application and is a national of that Member State; or b) both spouses are nationals of that State.
Within its scope, the EU Regulation excludes the use of domestic jurisdictional rules provided for in Polish law. Consequently, Polish jurisdictional rules apply only where neither party is a national of an EU Member State nor habitually resident within the Union. Furthermore, Polish jurisdictional regulations yield to the provisions of relevant international treaties.
Divorce consists in the dissolution of marriage and results in the termination of the marital bond during the lifetime of both spouses.
Under Polish law, divorce and legal separation are distinct and independent institutions. Divorce leads to the complete termination of the marriage and the personal and economic ties between spouses. Legal separation, however, does not dissolve the marriage.
The essential condition for both divorce and legal separation is the complete breakdown of marital life, although, in the case of separation, this breakdown need not be permanent.
In other words, the necessary condition for a divorce is the complete and permanent breakdown of marital life, with no exceptions provided by law.
The breakdown of marital life is understood as the cessation of the marital cohabitation that spouses are obliged to maintain. The concept is complex and difficult to define precisely, as marital cohabitation encompasses various dimensions. Moreover, the term is not commonly used in contemporary Polish language. It is generally accepted that marital cohabitation encompasses mutual feelings of love, respect, and trust, combined with physical and economic bonds.
The breakdown of marital life is a process that matures over time as a result of experiences, emotions, and the state of the spouses' relationship. The breakdown is considered complete when marital life ceases across all its dimensions—emotional, physical, and economic.
According to the Supreme Court, the emotional bond is the fundamental element of marital cohabitation. Therefore, the absence of emotional (spiritual) unity is always indicative of a breakdown, even if no hostility or aversion is present. Maintaining correct relations, communicating for the sake of shared children, etc., does not necessarily imply the survival of the marital emotional bond. The critical factor is the specific type of emotional bond characteristic of marital life.
The breakdown of marital life may occur even if only one spouse has ceased to feel the emotional bond.
In case law, the economic bond is identified with running a shared household—living together, owning joint property, sharing household management, and preparing and sharing meals. However, the absence of an economic bond may, under specific circumstances, not signify a breakdown if justified by factors beyond the spouses' control or mutual agreement. Nevertheless, if emotional and physical ties are missing, the existence of certain economic connections (e.g., shared residence due to necessity) does not prevent the recognition of a complete breakdown.
Changing the matrimonial property regime—from statutory community to separation of property—is not in itself considered evidence of the severance of the economic bond.
As noted earlier, for a divorce (unlike separation), the breakdown must be not only complete but also permanent. The durability of the breakdown can only be established after the breakdown is deemed complete.
The Supreme Court has held that a breakdown is permanent when there are no prospects for the spouses to resume marital life.
The gravity of the cause of the breakdown may support a finding of permanence, which is also relevant in assigning fault. However, all circumstances must be considered.
The court is not obliged to assess the validity of the causes of the breakdown but must comprehensively establish the circumstances leading to it, particularly to determine the complete and permanent nature of the breakdown—a prerequisite for granting a divorce.
In divorce proceedings, the court may not base its decision solely on the acknowledgment of the claim or admission of facts. Generally, both spouses must be heard.
If, for factual or legal reasons, only one spouse can be heard, the court must determine whether hearing just that spouse is appropriate or whether the evidence should be disregarded entirely.
Similarly, if one party fails to appear, the court must assess whether to hear the present party or dispense with the evidence.
Before deciding not to hear one party, the court must investigate the reasons for their absence, as limiting the evidence to one party’s testimony, when the other could have been heard, violates the principle of party equality.
When minor children are involved, the court must not limit itself to hearing the spouses alone. Typically, additional evidence is required, including reports from professional or community-appointed guardians, or expert opinions from psychologists, to assess all circumstances regarding the children—their residence, living conditions, health, financial situation, upbringing, and emotional bonds with each parent (as recommended by the Supreme Court in 1976, Thesis VI, Point 4).
In proceedings concerning a minor child, the court shall hear the child if their intellectual development, health, and maturity permit. Such hearing is conducted outside the formal courtroom setting.
However, in divorce proceedings, minors under the age of 13, and descendants under the age of 17, cannot be heard as witnesses, and this prohibition is absolute.
Case law and legal scholarship have also addressed the admissibility of evidence in divorce proceedings derived from recordings of conversations or correspondence (including electronic), made or collected without the other party’s knowledge.
The Supreme Court, in its judgment of 25 April 2003, Case No. IV CKN 94/01, stated that there are no fundamental reasons for entirely disqualifying such evidence, even if recordings were made without the other party’s consent. If the authenticity of such evidence is not successfully challenged, it may serve as a basis for assessing the conduct of a party—for example, allegations of alcohol abuse.
Moreover, the Supreme Court held that the passage of time since the recordings were made does not categorically disqualify them, even if they occurred two years after the spouses had definitively separated.
The finalization of a legal separation decree does not preclude the spouses’ right to petition for divorce. However, even prolonged separation does not dissolve the marriage; a divorce petition must be filed.
Spouses in separation seeking divorce must meet the same requirements as any other spouses. Nonetheless, prior separation proceedings have implications for the divorce case:
First, it establishes that at the time of the separation decree, a complete breakdown of marital life existed.
Second, the divorce court is bound by the determination of fault for the breakdown made in the separation proceedings, if fault was adjudicated.
Nevertheless, in some cases, it is possible to reach a different finding regarding fault in divorce proceedings than in earlier separation proceedings.