{"id":19484,"date":"2026-08-19T12:11:46","date_gmt":"2026-08-19T10:11:46","guid":{"rendered":"https:\/\/bktkancelaria.pl\/?p=19484"},"modified":"2026-08-19T12:11:46","modified_gmt":"2026-08-19T10:11:46","slug":"jurysdykcja-podzial-majatku-malzenskiego-sprawy-miedzynarodowe","status":"publish","type":"post","link":"https:\/\/bktkancelaria.pl\/en\/jurisdiction-division-of-matrimonial-property-international-cases\/","title":{"rendered":"Jurisdiction in cases concerning the division of matrimonial property \u2013 is it possible to choose the court in international cases?"},"content":{"rendered":"

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) \u2013 the key question one should ask oneself<\/strong> 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\u2019s jurisdiction<\/strong>, which deals with divorce, contact with children or division of matrimonial property<\/strong> 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.<\/p>\n

A great deal depends on giving the correct answer, namely:<\/p>\n

\u2013 whether the case will go to court in Poland or in another country,<\/p>\n

\u2013 what applicable law<\/strong> will be used (Polish, German, other),<\/p>\n

\u2013 is there not a risk that dual proceedings<\/strong> or conflicting rulings (e.g. a Polish court might \u201edivide\u201d a house in Germany, whilst a German court might handle it completely differently). Such cases have also occurred in the past.<\/p>\n

Regulation (EU) 2016\/1103 \u2013 the basis for jurisdiction in matters relating to the matrimonial property regime<\/h2>\n

In the European Union, the framework for jurisdiction in cases concerning matrimonial property regimes<\/strong> determines, first and foremost, Regulation (EU) 2016\/1103 of 24 June 2016.<\/strong> (the so-called. Regulation of Matrimonial Property<\/strong>). It applies in countries that have opted for so-called \u2018enhanced cooperation\u2019 \u2013 including, amongst others, in Germany, France, Italy, Spain, the Netherlands<\/strong>.<\/p>\n

Poland has not joined this system<\/strong>, which gives rise to specific problems in matrimonial cases involving a \u201emixed\u201d element, where one country is a party to Regulation 2016\/1103 and the other is not.<\/p>\n

You may also be interested in this topic: Cross-border parental abduction - when does it occur?<\/a><\/p>\n

Division of property and divorce \u2013 jurisdiction rules (Articles 4\u20135 of Regulation 2016\/1103)<\/h2>\n

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.<\/strong><\/p>\n

Regulation (EU) 2016\/1103 explicitly links property matters to matrimonial proceedings:<\/p>\n

\u2013 Article 4 of Regulation 2016\/1103<\/strong> provides that a court of a participating Member State which already has jurisdiction to rule on the case divorce, separation or annulment of marriage<\/strong> (pursuant to the \u201eBrussels IIa\u201d Regulation \u2013 2201\/2003 \u2013 or the \u201eBrussels IIb\u201d Regulation \u2013 2019\/1111), it also has jurisdiction over the matrimonial property regime<\/strong>, if:<\/p>\n

\u2013 one of the spouses submits an application for the cases to be joined, and<\/p>\n

\u2013 the court considers that the joinder is appropriate (e.g. it allows the parties\u2019 situation to be settled comprehensively).<\/p>\n

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<\/strong> \u2013 provided that the parties so wish and the court agrees to the merger.<\/p>\n

But we have Article 5 of Regulation 2016\/1103<\/strong>, which provides that if the divorce court is not appropriate<\/strong> in property matters under Regulation 2016\/1103 (e.g. too tenuous a link to the spouses\u2019 property), it may decline jurisdiction<\/strong> regarding the matrimonial property regime. In such cases, one must refer to the further provisions of Articles 6\u20138 of the Regulation, which govern what is known as \u2018autonomous jurisdiction\u2019 \u2013 as discussed below.<\/p>\n

However, before legal proceedings begin, it is worth considering an amicable solution: cross-border mediation in family matters<\/a> It often makes it possible to agree on the division of assets without a lengthy legal battle.<\/p>\n

For married couples, this means one thing: The choice of divorce court often determines which court will divide the assets<\/strong>. It is a powerful strategic tool, particularly when it comes to assets located in different countries.<\/p>\n

General jurisdiction in matters of the division of property \u2013 habitual residence, nationality, centre of life (Article 6)<\/h2>\n

If proceedings concerning the division of matrimonial property are underway regardless of whether there is a divorce<\/strong> (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<\/strong>.<\/p>\n

Under this provision, jurisdiction in matters relating to matrimonial property regimes lies with the courts of the Member State in which:<\/p>\n

    \n
  1. the spouses have their habitual residence<\/strong> or<\/li>\n
  2. the spouses had last common habitual residence<\/strong>, provided that one of them still lives there, or<\/li>\n
  3. the defendant is to place of habitual residence<\/strong>, or<\/li>\n
  4. both spouses are citizens of a given country<\/strong> (or have their domicile there, that is, their habitual place of residence).<\/li>\n<\/ol>\n

    Place of habitual residence<\/strong> It\u2019s more than just a report \u2013 it\u2019s the real centre of life<\/strong>: work, family, permanent residence.<\/p>\n

    Taking a Polish-German marriage as an example:<\/p>\n

    \u2013 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),<\/p>\n

    \u2013 if the divorced spouses most recently lived together in Germany and one of them still lives there \u2013 German jurisdiction may also apply,<\/p>\n

    \u2013 if the defendant (former spouse) lives in Germany \u2013 this also opens the way for German jurisdiction, even if the other party now lives in Poland.<\/p>\n

    Choice of court by the spouses \u2013 prorogation of jurisdiction (Article 7)<\/h2>\n

    One of the most interesting, yet still under-utilised, tools is the ability to choice of court by agreement<\/strong> competent in matters relating to the matrimonial property regime. It is governed by Article 7 of Regulation (EU) 2016\/1103<\/strong>.<\/p>\n

    Spouses may in the form of a contract (known as a \u2018prorogation\u2019)<\/strong> choose a court in a Member State to hear their property-related cases, provided that:<\/p>\n

    \u2013 it is a court of the state whose the law was chosen by the spouses<\/strong> as the law applicable to the matrimonial property regime (pursuant to Regulation 2016\/1103), or<\/p>\n

    \u2013 it is a court of the state:<\/p>\n