Family Law (Poland)

The family law is in Poland a special area of civil law and governs the legal relations by marriage , partnership , family and relationship people interconnected. In addition, it also regulates the legal representative functions that exist outside the family: guardianship , guardianship and legal support .

Introduction or legal sources

With a few exceptions, Polish family law is located in the Family and Guardianship Code ( Kodeks rodzinny i opiekuńczy ) of February 25, 1964. Family law underwent a major overhaul with the law amending the Family and Guardianship Code in 2004. Among other things, this made it easier for the spouses to take up economic activities. The principles of family and child protection enshrined in the constitution pervade the FVGB with regulations that take this area of ​​protection into account. The Republic of Poland has also signed numerous international agreements in the field of family law.

Marriage

The marriage

In order for a marriage to be valid, Polish law requires both spouses to be present at the same time and the parties involved must be over 18 years of age. Furthermore, a head of the registry office must declare the marriage in accordance with Art. 1 § 1 FVGB.

Exceptions are possible from the following principle:

Despite the character of a highly personal legal transaction, it is possible for the court to have the marriage performed by a representative if there are important reasons. In Germany it is not allowed to have a proxy marry you.

Furthermore, if there are important reasons, the court can allow a woman who has reached the age of 16 to marry if the circumstances show that this serves the well-being of the future family, Art. 10 § 1 FVGB. In addition, there is the possibility of being married by a consul if the person wishing to marry is abroad and both have Polish citizenship , Art. 1 § 4 FVGB.

The concordat marriage or marriage under canon law

In Poland it is possible to have a church marriage without having to get married again. The prerequisite for this is that men and women marry according to the law of a church or religious community, in the presence of a clergyman, declare the marriage according to Polish law and the head of the registry office issues a marriage certificate afterwards, Art. 1 § 2 FVGB.

Further bureaucratic steps are:

• The clergyman must have a certificate from the head of the registry office confirming that there are no circumstances preventing marriage , Art. 8 § 1 FVGB.
• After the will to marry, the clergyman must fill in a certificate stating that both declarations of will were made in his presence. This certificate must be confirmed by two adult witnesses and sent back to the registry office within five days together with the certificate from the head of the registry office, Art. 8 § 2.3 FVGB.

Rights and duties of the spouses

In Art. 33 I of the Polish Constitution it says: "Women and men have the same rights in family, social and political life." This principle can be found again in Art. 23 FVGB. As a result, spouses are also obliged to live together, which requires assistance and loyalty as well as participation in the well-being of the family they have founded together. The spouses decide jointly and equally on all essential family matters. Should a consensus not be reached, there is the possibility of having a decision made by a court, Art. 24 FVGB. In addition, each part of the marriage is obliged to contribute to covering family needs according to their abilities, Art. 27 FVGB. The spouses are jointly and severally liable to a creditor in equal parts if it concerns liabilities that result from transactions that arose to cover the usual family needs, Art. 30 FVGB.

Matrimonial property law

Legal community of property

With marriage, a community of property is created between the spouses. This includes all items that were acquired by one or both of them during the marriage, Art. 31 FVGB.

The collective assets result from the wages, income from other gainful activity of each spouse, income from the collective assets such as interest and from the personal assets of the individual as well as from the claims from the labor law pension fund. Art. 33 FVGB lists the items that are not covered by the statutory community of property.

The last legal revision of the FVGB had the consequence that the surrogation principle according to Art. 33 No. 10 FVGB was extended to all components of personal property. Accordingly, the items that a spouse has acquired from their personal property also belong to their personal property.

Management of common property

Both spouses are obliged to participate in the joint management of the property, Art. 36 § 1 FVGB. According to this, each side is obliged to provide information about the status of the assets and the liabilities entered into to the other party. If this obligation is refused, there is the possibility of excluding the other part from the independent administrative law or of introducing a court sanction in the form that there is then a separation of property, Art. 40 FVGB.

In principle, according to the current legal situation, it is possible for each part to independently manage the communal assets, that is, to undertake measures aimed, among other things, at preserving them. Art. 37 § 1 FVGB defines exceptions for the independent disposition; Acquisition or sale of land without the consent of the other spouse is generally inadmissible or pending ineffectiveness until the other party has approved it. In this context, the other spouse can also object to an administrative measure being taken. However, this contradiction is excluded insofar as the measures taken by the other part are actions of everyday life or measures that serve to cover family needs (shopping, etc.), Art. 361 FVGB. If the act of a spouse is aimed at promoting or maintaining gainful employment or economic activity, the acting spouse alone is authorized to administer and dispose of, and an objection is also inadmissible in this case.

According to Polish law, a binding transaction, e.g. B. the assumption of a guarantee, not part of the Community administrative measures. This means that approval from the other part is not required. However, the consent of the other spouse may be of economic interest to the obligee, since in the case of a joint declaration the obligee can enforce the entire property, Art. 41 FVGB. With the exception of the legal transactions listed in Art. 37 FVGB, the consequence of the lack of consent of the other spouse is that claims, even deictic ones, can only be enforced against the personal property of one part as well as the items listed in Art. 41 FVGB. The same applies to claims that arose before the community of property was created.

Contractual property law (marriage contract)

Marriage contracts can be concluded, amended or terminated both before the start of the marriage or during the marriage. Polish law has four forms of contractual property law, although they all have in common that they require notarial certification:

• 1. Type of contract: This provides for an expansion of the legal community, whereby an expansion of the rights listed in Art. 49 § 1 is excluded.
• 2. Contract type: In return for the first contract type, this restricts the legal community.
• 3. Contract type: Introduces the segregation of property. In this case, each spouse retains the assets that they acquired before and after the conclusion of the contract. Each part manages its assets independently.
• 4. Type of contract: This was introduced in 2004 by the Polish legislature. This type of contract introduces the community of gains. This means that after the end of the community of property, the part with the smaller assets is entitled to payment or transfer of rights to offset the gain. The calculation is made by comparing the two parts. The increase in wealth after the conclusion of the marriage contract is compared.

Since there are no government agencies in Poland where a marriage contract can be deposited, the spouse can only invoke the marriage contract vis-à-vis third parties if they were aware of the conclusion and type of contract, Art. 471 FVGB.

The obsessional system

Each spouse can request the separation of assets for important reasons. The court determines the date of the separation of assets in its decision; this can also precede the actual filing of a lawsuit.

In addition to an application, a separation of assets can also be carried out by law, e.g. B. in the case:

• the incapacitation of a spouse,
• the bankruptcy of a spouse,
• the separation of the spouses.

If the above-mentioned cases lose their effectiveness, the legal wealth system will be created again between the spouses.

Failure to declare marriage

Finally, Art. 10–22 FVGB gives the reasons which can lead to the nullity of a marriage. These reasons include:

• the bride and groom have not yet reached the age of 18. However, the marriage can still be declared valid in two cases, on the one hand if the spouses have reached the age of 18 or the wife is pregnant prior to the commencement of proceedings.
• Furthermore, if one of the bride and groom was mentally ill or mentally retarded at the time of the marriage, or was completely incapacitated,
• if one of the bride and groom is already married at the time of the marriage,
• if the marriage was concluded by relatives in a straight line, i.e. siblings or brothers-in-law in a straight line,
• if there is a marriage between an adoptee and the adoptee,
• if the power of attorney to enter into marriage was not available or was revoked.

Depending on the reason that leads to the nullity of the marriage, the group of people who can bring an action differs. However, a public prosecutor can always initiate a declaratory action that examines either the nullity of a marriage or the existence or non-existence of a marriage.

Termination of marriage

Basically, marriage ends with the death of one spouse or as a result of a divorce. Art. 55 FVGB assumes that the marriage also ended at the time of death. However, if the spouse is still alive or has died at another point in time and the other part entered into a new marriage, the new marriage cannot be annulled if the spouses did not know at the time of the marriage that he was dead declared spouse still alive.

According to Art. 56 ff. FVGB, each spouse can request a divorce and thus the dissolution of the marriage at the competent court. The prerequisite for this is a permanent and complete breakdown of the marital relationship. The court can refuse the divorce if the spouses have minors together and their well-being would be endangered by a divorce, Art. 56 § FVGB. If a spouse does not want to consent to the divorce or if the divorce suit has been brought by the party that is largely responsible for the breakdown of the marital partnership, the court can only pronounce the divorce if the refusal of consent violates the principles of social coexistence, Art. 56 § 3 FVGB.

A divorce decree must contain the following points:

• the question of the married couple's guilt; however, this question does not have to be decided if the spouses agree that this question does not need to be discussed, Art. 57 FVGB.
• the question of parental custody in the case of joint underage children and the distribution of costs for their maintenance including the costs incurred for raising children, Art. 58 § 1 FVGB.
• Decision on how to use the previous common living space.

In making this decision, the court mainly takes into account the well-being of the common minor children and the spouse to whom parental custody has been transferred, Art. 58 § 2 FVGB.

Furthermore, at the request of one spouse, the court can evict the other spouse, allocate the apartment and assign a new apartment to a spouse and arrange for the total property to be split up, Art. 58 § 2, 3 FVGB.

In addition to divorce, the institution of separation is also recognized, Art. 611 ff. FVGB. This institution is a judicial order if the conjugal union is considered broken. The separation has the consequence that neither of the spouses may enter into a new marriage and the spouses, as far as it is reasonable, have to help the other.

Relationships between parent and child

The child descent takes place either through the presumption of the child's descent from marriage, through recognition of the child by the father, or through judicial determination of paternity. Marriage descent generally has priority and a determination according to the other procedural principles cannot be made. The presumption of parentage applies to a child who was born either in marriage or 300 days after its dissolution or declaration of nullity. If the woman enters into a new marriage within the 300 days, it is assumed that the new spouse is the father of the child. This again does not apply if the determination of paternity was made 300 days after the separation by a court, Art. 62 FVGB. The father as well as the mother and child can sue if paternity is found to be non-existent. However, after reaching the age of majority, the child can only file such a lawsuit within two years.

The child is recognized by the father, either at the responsible registry office, the guardianship court or, for Poles living abroad, at the responsible consul, Art. 72 ff. FVGB. Recognition can only take place with the consent of the mother, even if the child has already reached the age of majority. If the mother's consent cannot be given, for example because she is dead or there is guardianship towards her, the consent of the legal representative is required. The recognition of the womb is also possible.

The child, the mother and the alleged father can request the judicial determination of paternity, Art. 84 ff. FVGB. However, such a determination is not possible after the death of the child or after the child has reached the age of majority. It is assumed that the father of the child is the person who had sex with the mother 181 days before the birth or 300 days after the birth. When the court determines paternity, the court also decides whether the father is to be given parental authority.

Parental care

Parental custody is available to both parents until the child reaches the age of majority, provided they have full legal capacity. If a couple of parents who have no children have joint custody, the court can, on application, grant one parent parental custody and restrict certain rights and obligations regarding the child to the other party (Art. 107 FVGB). Parental custody can also be limited if the child's best interests are at risk (Art. 109 FVGB).

If there are obstacles that prevent the parents from exercising parental authority, the court can revoke parental authority. However, if the obstacle is permanent or if the order of the court is grossly disregarded or abused, the court can permanently withdraw parental custody. However, if the reason for annulment no longer applies, the court can restore parental custody (Art. 110–114 FVGB).

Adoption as a child

Only a minor can be accepted as a child. The adoptive person can only be a person who has full legal capacity and whose personal characteristics suggest that he will adequately perform his duty. Only a married couple can adopt a child together. Thus, individuals and unmarried couples are excluded from the adoption process.

In the case of adoption, there are three options:

• On the one hand, an imperfect assumption according to Art. 124 FVGB: There are only legal relationships between the adoptee and the adoptee, which, however, extend to the descendants of the adoptee.
• A perfect assumption according to Art. 121 FVGB provides that a relationship arises between the adoptee and the adopter as with biological parents and their descendants. The adoptee acquires all the rights and obligations arising from the family relationship towards relatives of the adopter. The rights in relation to relatives of the adopted person expire at the same time. This case of adoption also extends to the descendants of the adoptee.
• The most perfect adoption according to Art. 1241, 1251 FVGB provides for the same consequences as with the perfect adoption, but in contrast to the perfect and imperfect option, it cannot be revoked. In this case a new birth certificate will be issued.

For adoption, the consent of the future parents and of the adoptee, if they have reached the age of 13, is necessary. With the adoption, the original parental custody and guardianship of the adoptive expires. For important reasons, both the adoptive person and the adopted person can apply to the court to dissolve the relationship of acceptance.

Maintenance obligation

The obligation to provide maintenance initially applies to the relatives in a straight line and the siblings. This means first of all the descendants before relatives in the ascending line and the descendants before siblings, Art. 128 ff. FVGB. If several options are available, the maintenance obligation initially primarily affects the relatives of the closer degree. Relatives of the same degree are obliged to provide maintenance according to their income and wealth. The maintenance obligation of the spouse in the event of separation or dissolution of the marriage takes precedence over the maintenance obligation of the relatives. Anyone who is in need is entitled to receive maintenance payments, but it is assumed that children cannot support themselves if they do not have sufficient financial resources. The amount of maintenance depends on the following factors:

• justified needs of the entitled person,
• Earning and wealth opportunities of the obligated party.

If a sibling is obliged to provide maintenance, they can refuse to provide maintenance if the maintenance payment would result in a disadvantage for their family.

In the case of divorced spouses, the maintenance payment depends largely on which part has been recognized by the court as being primarily responsible for the breakdown of the marriage. If a part has not been found guilty solely of breaking up the marriage and is in an emergency situation, he or she can demand appropriate funds from the divorced spouse according to his / her financial and income opportunities. If a spouse has been recognized as primarily guilty of the breakdown of the marriage, the other party can, without being in need, demand appropriate funds if the dissolution of the marriage results in a worse position for him in a material sense. The maintenance obligation does not apply in the event of a new marriage by the entitled spouse. The obligation also does not apply after five years after the dissolution of the marriage if the obliging party is the spouse who has not been recognized by the court as the culprit for the breakdown of the marriage. Under certain circumstances, the period can be extended at the request of the beneficiary. According to Art. 144 FVGB, a maintenance obligation can arise between a child and the mother's husband who is not his father (or wife who is not mother). The creation of such an obligation must correspond to the rules of social coexistence.

Guardianship and guardianship Art. 145–184 FVGB

Guardianship can be ordered for a minor as well as for an unrestrictedly incapacitated person, Art. 145 ff. FVGB. As a rule, this is carried out free of charge by a guardian appointed by the court. The guardian must have full legal capacity and have the necessary qualities. Any person appointed by the court as guardian is obliged to accept this task. For important reasons, the court can dismiss the guardian from his function regarding financial matters and taking care of the ward. The guardian must obtain approval from the guardianship court for more important matters affecting the ward's financial situation or assets. The Guardianship Court reviews the exercise of guardianship. If the court is convinced that the guardian's duties are not being properly fulfilled, the court can withdraw guardianship. It can also release the guardian from his or her task if the guardian can no longer exercise his or her function for factual or legal reasons or if his actions endanger the physical or financial well-being of the ward. If the ward has suffered damage as part of the guardianship, he has a claim for damages against the guardian, which expires within three years after the end of the guardianship.

The guardianship is ordered in the following cases:

• for a partially incapacitated person - for their representation and asset management, if the court decides, Art. 181 FVGB;
• for a womb - if it is necessary to safeguard the future rights of the child, Art. 182FVGB;
• at the request of a physically disabled person for the support of the management of all or only certain matters, Art. 183 FVGB;
• for an absent person who does not have a representative and is unable to conduct his affairs due to his absence, Art 184 FVGB.

literature

• Marc Liebscher and Fryderik Zoll : Introduction to Polish Law . 1st edition. CH Beck, Munich 2005, ISBN 3-406-52587-3 .

Individual evidence

1. ↑ Official abbreviation FVGB
2. ^ Amendment dated June 17, 2004
3. ↑ List of agreements in: Ignatowicz, Chapter II § 3 III
4. ↑ Those willing to marry must be man and woman, a marriage of homosexuals is not permitted under Polish law.
5. ↑ See Piasecki, Commentary on Art. 6; Winiarz / Gajda, p. 43; For the term “important reasons” see order of the Supreme Court of June 8, 1970, III CZP 27/70.
6. ↑ A list of clergymen who are qualified to do so is contained in the announcement by the Minister of the Interior of November 4, 1998, MP from 1998, No. 40, Item 554.
7. ^ Critical to this approach: Winiarz / Gajda, p. 62
8. ↑ See Art. 33 Constitution of the Republic of Poland
9. ↑ Spouses of a partner in a partnership can request the entry of the annotation of an existing marriage contract in the national court register, see Art. 27 HGG
10. ↑ In Polish law polygamy is a crime with a threat of up to two years and a criminal offense in the StGB, see Art. 206 StGB
11. ↑ The breakdown is permanent if it can be assumed that the marital relationship can no longer be restored.
12. ↑ Is given when all mental, physical and economic relationships between the spouses are broken.
13. ↑ The previous separation is not a prerequisite for a divorce. In contrast, see separation year Germany

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