Europe in its current form does not have borders for its citizens. This, in turn, results in people starting families and buying properties in countries with which they had no previous connection. While accomplishing this may not pose significant problems they can arise when there is a need for legal regulation of certain issues that were previously unknown to lawmakers. An example could be the division of property owned by spouses located abroad as a result of divorce. For many individuals, the breakdown of a marriage is a difficult and emotional experience. Divorcing spouses often struggle to find common ground when it comes to dividing their assets. If the case involves a cross – border aspect, it can lead to numerous complications that further prolong the entire process.
Considering that such cases are likely to increase rather that decrease, in today’s article, I will illustrate how the division of property owned by spouses located abroad currently works.
I cordially invite you to read on.
Divorce for Spouses with Assets Abroad the most desirable situation is when spouses reach and agreement on how their property will be divided. However, as one can imagine, divorces follow their own rules and human emotions often override reason. The common problem for divorcing spouses is the lack of agreement regarding their accumulated share assets. In such cases, the court should resolve this matter in the divorce judgment.
In cases involving an international aspect, the division of property can be further complicated. This is due to the absence of clear regulations regarding which jurisdiction (the law of which country)should be applied in the division of assets for spouses (holding Polish citizenship) located outside Poland.
A married couple from Poland permanently settled in England, where they jointly purchased a property during their marriage. After several years of living together a situation arose that id described in a similar manner in almost every divorce lawsuit: Although the marriage initially went well, over time, things started to deteriorate. Arguments and disputes ensued, leading to a permanent and complete breakdown of the marital relationship.
This led to a divorce in which the division of the couple’s accumulated shared assets needed to be addressed. The assets included a property located in the United Kingdom. As a result, a certain problem – or rather, doubt – emerged: Which country’s law would be applicable to determine this matter?
Division of Assets for Spouses Abroad – Case Law The case law of Polish courts is invaluable in resolving various uncertainties for individuals who find themselves in seemingly hopeless situations. The same applies to the division of property between spouses when their shared property is located abroad.
It can be expected that the number of similar cases will continue to grow. Therefore, it is worth establishing consistent case law and judicial approach to this matter as early as possible. The Krakow Regional Court seemed to share this view. It raised the question of whether the Polish court has jurisdiction to rule on the division of a property located in the United Kingdom in cases involving Polish citizens. The court referred the following question to the Supreme Court:
“Does the current legal framework grant Polish courts the domestic jurisdiction to rule on the division of shared property between participants who are Polish citizens when the property is located in the United Kingdom?”
Unfortunately, to the detriment of the parties, the Supreme Court decided not to pass a resolution on this issue.
Is there any solution that can expedite the division of shared property for spouses located outside Poland?
One possible solution to the situation presented in the above example could be a partial division of the shared property between the spouses. However, this would require the willingness and agreement of the former spouses (and, above all, the development of a solution that both parties would agree to). In case of any conflicts that may arise in this regard, it is worth considering the use of mediation, which I discussed in detail in the article: mediation before divorce.
It is also worth mentioning that neither EU law nor any agreement between Poland and the United Kingdom resolves the issue of dividing the property of spouses located outside their home country. As for the case law of Polish courts – which is often invaluable in such matters – they present very divergent positions. Bearing this in mind, another way out of such a situation can be indicated. Namely, the spouses can agree or choose the appropriate jurisdiction that will be applicable to the division of their shared property. Such a solution can be crucial for safeguarding the interests of each spouse.
The withdrawal of the United Kingdom from the European Union under Brexit does not affect the determination of court jurisdiction ( domestic jurisdiction) in cases involving the division of shared property. You can read more about this in this article:
Brexit and family matters.