In cross-border family matters, that is to say, cases in which another country is a factor (for example, where one of the spouses lived in another country or where the matrimonial property is situated outside the country in which the spouses lived) – the key question one should ask oneself The question of how the assets should be divided does not immediately arise. The primary issue at the outset will, in fact, be the question of the court’s jurisdiction, which deals with divorce, contact with children or division of matrimonial property will decide in the event that the parties are unable to reach an amicable agreement. The question, therefore, as to which court should hear the case is one that must be answered first.
A great deal depends on giving the correct answer, namely:
– whether the case will go to court in Poland or in another country,
– what applicable law will be used (Polish, German, other),
– is there not a risk that dual proceedings or conflicting rulings (e.g. a Polish court might „divide” a house in Germany, whilst a German court might handle it completely differently). Such cases have also occurred in the past.
Regulation (EU) 2016/1103 – the basis for jurisdiction in matters relating to the matrimonial property regime
In the European Union, the framework for jurisdiction in cases concerning matrimonial property regimes determines, first and foremost, Regulation (EU) 2016/1103 of 24 June 2016. (the so-called. Regulation of Matrimonial Property). It applies in countries that have opted for so-called ‘enhanced cooperation’ – including, amongst others, in Germany, France, Italy, Spain, the Netherlands.
Poland has not joined this system, which gives rise to specific problems in matrimonial cases involving a „mixed” element, where one country is a party to Regulation 2016/1103 and the other is not.
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Division of property and divorce – jurisdiction rules (Articles 4–5 of Regulation 2016/1103)
If we are dealing with a cross-border case relating to matrimonial matters, we must first consider and carry out a legal assessment to determine where proceedings for divorce, legal separation or annulment of marriage are taking place or have taken place.
Regulation (EU) 2016/1103 explicitly links property matters to matrimonial proceedings:
– Article 4 of Regulation 2016/1103 provides that a court of a participating Member State which already has jurisdiction to rule on the case divorce, separation or annulment of marriage (pursuant to the „Brussels IIa” Regulation – 2201/2003 – or the „Brussels IIb” Regulation – 2019/1111), it also has jurisdiction over the matrimonial property regime, if:
– one of the spouses submits an application for the cases to be joined, and
– the court considers that the joinder is appropriate (e.g. it allows the parties’ situation to be settled comprehensively).
In practice, if divorce proceedings are taking place before a court in another EU country, such as Germany, that court may simultaneously rule on division of matrimonial property – provided that the parties so wish and the court agrees to the merger.
But we have Article 5 of Regulation 2016/1103, which provides that if the divorce court is not appropriate in property matters under Regulation 2016/1103 (e.g. too tenuous a link to the spouses’ property), it may decline jurisdiction regarding the matrimonial property regime. In such cases, one must refer to the further provisions of Articles 6–8 of the Regulation, which govern what is known as ‘autonomous jurisdiction’ – as discussed below.
However, before legal proceedings begin, it is worth considering an amicable solution: cross-border mediation in family matters It often makes it possible to agree on the division of assets without a lengthy legal battle.
For married couples, this means one thing: The choice of divorce court often determines which court will divide the assets. It is a powerful strategic tool, particularly when it comes to assets located in different countries.
General jurisdiction in matters of the division of property – habitual residence, nationality, centre of life (Article 6)
If proceedings concerning the division of matrimonial property are underway regardless of whether there is a divorce (e.g. the divorce took place several years ago in another country), jurisdiction in the participating states is determined by Article 6 of Regulation 2016/1103.
Under this provision, jurisdiction in matters relating to matrimonial property regimes lies with the courts of the Member State in which:
- the spouses have their habitual residence or
- the spouses had last common habitual residence, provided that one of them still lives there, or
- the defendant is to place of habitual residence, or
- both spouses are citizens of a given country (or have their domicile there, that is, their habitual place of residence).
Place of habitual residence It’s more than just a report – it’s the real centre of life: work, family, permanent residence.
Taking a Polish-German marriage as an example:
– if, following a divorce, both former spouses live in Germany, German courts will generally have jurisdiction over matters relating to matrimonial property (in accordance with Regulation 2016/1103),
– if the divorced spouses most recently lived together in Germany and one of them still lives there – German jurisdiction may also apply,
– if the defendant (former spouse) lives in Germany – this also opens the way for German jurisdiction, even if the other party now lives in Poland.
Choice of court by the spouses – prorogation of jurisdiction (Article 7)
One of the most interesting, yet still under-utilised, tools is the ability to choice of court by agreement competent in matters relating to the matrimonial property regime. It is governed by Article 7 of Regulation (EU) 2016/1103.
Spouses may in the form of a contract (known as a ‘prorogation’) choose a court in a Member State to hear their property-related cases, provided that:
– it is a court of the state whose the law was chosen by the spouses as the law applicable to the matrimonial property regime (pursuant to Regulation 2016/1103), or
– it is a court of the state:
- of which one of the spouses is a national,
- in which one of the spouses has their habitual residence,
- or in which it is situated the main part of the spouses’ assets.
An extension agreement must be drawn up in a specific form, usually similar to the form required for marital property agreement (prenuptial agreements), and therefore in writing, dated and signed, often in the form of notarial deed, in accordance with national law.
Interestingly, it may be the case that, in practice, spouses living, for example, in Germany but holding Polish citizenship may choose Polish law as applicable law for their property regime, whilst at the same time agreeing that the competent court in the event of any property disputes, there will be German court.
This solution can be very beneficial from both a business and a tax perspective – but it requires careful planning and preparation a matrimonial property agreement containing a choice of court and law clause.
Subsidiary jurisdiction – where other provisions do not „cover” a case (Article 8)
Regulation (EU) 2016/1103 provides for a further, „contingency” model of jurisdiction – Article 8, i.e. what is known as subsidiary jurisdiction.
According to this, if no court where a Member State has no jurisdiction under Articles 4, 6 or 7, a court of that Member State may nevertheless have jurisdiction where:
– part of the spouses’ property is situated within its territory,
– and he is in dispute with that country sufficient connection.
This solution applies in specific situations, for example where the spouses are nationals of a third country, have lived outside the EU but own assets (such as property) in one of the participating states, and the state of which they are nationals does not provide effective access to the courts. Similar questions regarding court jurisdiction are now arising in relations with the United Kingdom – we discuss this in more detail in the article Brexit and family matters.
Lis pendens and res judicata – how to avoid a „war of two judgements”?
Even if the conditions for jurisdiction are met in several countries at the same time (e.g. Poland and Germany), Regulation 2016/1103 introduces mechanisms to prevent duplicate proceedings and conflicting rulings.
Article 17 of the Regulation provides that if proceedings concerning the matrimonial property regime have already been brought in one participating State, the court of another participating State should suspend proceed with the case until the first court has ruled on the question of its jurisdiction and then, as a general rule, decline jurisdiction if the first court assumes jurisdiction.
However, in accordance with Article 18 – where the cases are not identical but are closely related, and there is a risk that conflicting judgements, the court which commenced proceedings at a later date may stay those proceedings.
In addition, the regulation governs recognition and enforcement of judgments in other participating countries (Article 36 et seq.). In practice, this means that a final judgement or order on the division of property issued, for example, in Germany will, as a general rule, be recognised in other participating states – and any attempt to reopen the case in another state will be blocked by the principle res judicata, that is, the force of res judicata, which means that A case which has already been finally decided may not be heard again between the same parties if it concerns the same claim and the same factual or legal basis..
Poland outside the 2016/1103 system – what does this mean in practice for the division of assets?
Since Poland is not participating in Regulation (EU) 2016/1103, as I mentioned above, the jurisdiction of Polish courts in cases concerning the division of matrimonial property is determined by:
– the Polish Code of Civil Procedure (KPC) and here are the provisions on national jurisdiction,
– the Private International Law Act (PIL) – the principles of the applicable law,
as well as general principles Regulation (EU) No 1215/2012 (Brussels I bis) in civil and commercial matters.
Where a claim is brought for the division of matrimonial property following a divorce, the Polish court examines, first and foremost:
– does there exist national jurisdiction, i.e. for example, a foreign spouse is resident in Poland, the assets are located in Poland, and the divorce was granted in Poland,
– what substantive law apply: Polish, German or some other – but that is a matter of applicable law, not of court jurisdiction.
Relations with the courts of participating countries (e.g. Germany) are more complicated, because from Germany’s point of view, Poland is treated in this regard as third country, and from Poland’s perspective, Regulation 2016/1103 is not formally in force, but German judgments may be recognised on the basis of other mechanisms, including Regulation 1215/2012, which I mentioned earlier.
In practice, a situation may arise in which both a Polish court and a German court consider themselves to have jurisdiction to rule on the spouses’ assets. This would then give rise to a risk competitive procedures, unless the parties devise a strategy (e.g. by limiting the scope of the application in one of the countries).
Therefore, in cross-border cases (Poland–Germany, Poland–France, etc.) jurisdiction becomes part of the litigation strategy, rather than merely an abstract legal issue.
How can one make informed use of jurisdiction in disputes over matrimonial property?
If:
– marriage has Polish-German or any other cross-border aspect,
– divorce proceedings are or have been taking place in a country other than the one in which the property is situated,
– are you considering partial division of assets in Poland and parallel proceedings in Germany or another EU country,
– or do you want to plan ahead the choice of applicable law and jurisdiction, e.g. in a matrimonial property agreement,
then you need a detailed analysis of jurisdiction and considerations as to whether the case should be brought before a court in Poland, Germany or another country, or whether there might be several parallel options – what are they? the consequences of a choice of the court in question (applicable law, costs, timeframes, case-law) and how to avoid a situation in which two courts are ruling on the same estate – or nobody wants to take on the case at all.
On a day-to-day basis, we advise on cross-border property divisions with a Polish-German and EU dimension.
If you want to:
– to assess which court has, or may have, jurisdiction over your case,
– plan a safe route: Poland, EU countries or a combination of both,
– to avoid mistakes that are very difficult to rectify later on (e.g. the ill-considered exclusion of overseas assets from proceedings in Poland),
Please contact the Law Firm for a personal consultation. In cases concerning the division of matrimonial property, jurisdiction is not a mere formality – it is strategic decision, which has a tangible impact on the outcome, costs and duration of the entire dispute.
