With the ongoing migration processes and the phenomenon of globalisation, both of which have been growing rapidly for decades now, the relationships between people of different nationalities, cultural and ethnic backgrounds have been noticeably in force. With an easy access to the Internet services which have become more and more popular worldwide, many of the social and moral barriers observed globally seem to have changed considerably, often even vanished altogether. Especially, in the context of making new romantic acquaintances. Little wonder therefore that in such conditions there appeared a phenomenon on the rise of marriages between people from different backgrounds and nationalities, often causing problems of legal nature and a lot of confusion of sorts. It is very important for prospective spouses of different nationalities to be aware of problems likely to await them and thus they would be well advised to seek legal counsel and enquire about potential risk factors before they formalize their bonds.
Getting married to a foreigner on the territory of Poland
The basic regulator of the institution of marriage in the Polish legal system is the Family and Guardianship Code. However, it is worth remembering that if a Polish citizen intends to get married to a foreigner, either on the territory of the Republic of Poland or abroad, there may be other provisions of legal acts to consider.
Undoubtedly, each time before contemplating marriage, either to a foreigner or a compatriot, it is always advisable to consider both the positive and negative implications of such a union. In this respect, the Act on Private International Law of 4 February 2011 specifies that the possibility of marrying a person of a different nationality is determined for each of them by his/her national law being in force at the moment of entering into marriage. Thus, the capacity to marry, as well as any obstacles that may preclude the formalization of such an intended union, must be assessed in accordance with the laws of the state that determines the nationality of future spouse.
Private International Law also provides an answer to the question of which legal directive should be taken into account when the intended has more than one nationality. In such cases it is commonly observed that for such a person the law of the country with which he/she is most closely or intimately connected should be followed.
However, if it is impossible to clearly determine the above mentioned, or if the intended does not have any citizenship, the Private International Law states that the legal regulations of the country of his/her permanent or habitual residence are to be applied.
It should be remembered that in this diverse world of ours, one on daily basis deals with utterly different cultural heritages and members of communities with often contradictory system of values. Therefore, there are no universal and globally binding regulations, determining the admissibility of marriage. The internal legal systems of states may establish various positive and negative requisites for marriage and even if they seem to coincide, they may be regulated in a slightly different manner, thus requiring a much broader analysis of the legal acts of a given country. For this reason alone, it is always advisable and prudent to precisely determine the possible differences. The assessment whether a given person is capable of entering into marriage will usually involve the determination of his/her age, legal capacity to act, state of mental health, marital status and possible kinship with the intended.
Entering into matrimony requires completing the form stipulated by law. According to the rule set forth in the Private International Law, the marriage must be contracted in compliance with the rules and legal order of the country in which it will be entered into. Therefore, contracting a marriage on the territory of the Republic of Poland must take the form specified in the provisions of the Family and Guardianship Code, regardless of the actual citizenship of the persons whose marriage is to be formalized. The analysed form of marriage will include, among others, such circumstances as:
- The manner in which the declaration of intent is made
- The participation and requirements concerning witnesses
- The possibility to make a relevant statement through a proxy
- The presence of the Head of the Civil Registry Office (or any other plenipotent clerk to the Civil Registry Office, in his absence) or an ordained priest
The intention to enter into matrimony with a foreigner requires the submission of certain documents stipulated by the Law on Civil Status Records of 28 November 2014. These include:
- The intended assurance that there are no legal obstacles to the marriage
- A certified copy of his/her birth certificate, and in the event of a former marriage: a verified copy of a marriage certificate with a note on its cessation, annulment or declaration of non-existence, with a document confirming its cessation. Annulment and proofs of non-existence should also be submitted.
- A document confirming that, in the light of the law to which he/she is subject, there are no legal obstacles for him/her to enter into matrimony. In order to obtain this document, the intended should contact the embassy or a consulate of his/her country to get the relevant information on the adequate procedure applied in such cases. The procedure may regrettably turn out to be either difficult or even impossible as there are a number of countries which do not issue such legally binding certificates. In such instances it may be necessary to request a diplomatic mission to confirm in writing the impossibility of obtaining these documents.
When faced with circumstances which are difficult to overcome when requesting a certificate in writing, confirming that there are no legal obstacles to enter into matrimony, the Law on Civil Status Records indicates that upon submission of an appropriate application by a foreigner, the Court may release him/her from this requirement. The decision whether to do so will be based on the information that the embassy or consulate in question is not authorized to issue such a document. If such an exemption applies, the Court itself will establish whether in the light of the applicable law the foreigner meets the prerequisites for entering into matrimony and whether there are no legal obstacles for him/her to do so.
Any document submitted by a foreigner in such instances will have to be translated by an authorised person into the Polish language. There is an officially approved list of certified translators kept with the Polish Ministry of Justice. Alternatively, such translations could be performed by a translator approved by the European Council or by a consul himself. Likewise, if a foreigner or his/her witness does not communicate in Polish, or finds it difficult to do so, the law stipulates that the support of a certified translator is requested during the marriage ceremony at the Registry Office.
All the above mentioned procedures and requirements also apply to the scenario when both, the bride and the groom are of foreign extraction.
Any person intending to get married either to a Polish citizen or in Poland will have to bear in mind that circumstances may vary, slightly or considerably, in different locations. Therefore, a careful and detailed analysis beforehand is advisable, in order to avoid mishaps and problems of a unique and diverse nature.
Getting Married Abroad: Specifics applied to a Polish National
In the reality of contemporary world it is not infrequent that new acquaintances are made far away from home and more people than ever are crossing borders on regular basis. Thus, an important question arises what formalities should be completed by a Polish national who is planning to get married abroad, regardless of whether the intended is a Polish national or a person of foreign extraction. In either case, it will be paramount to obtain a certificate stating that there are no legal obstacles, in view of the provisions of the Polish law. If such a person is a Polish national residing presently outside the territory of Poland, he/she will be able to obtain such a document at the Polish embassy or consulate. The validity of this document is usually 6 months only.
In order to apply for it, the applicant should submit the following:
- Official confirmation of identity. This is most commonly either a passport or an identity card of the applicant
- Written declaration affirming the absence of any existing circumstances that would prohibit the proposed marriage
- Official proof of the current marital status of the applicant
If the certificate is to be issued by a consul, it will be necessary to provide a certified copy of the applicant’s birth certificate. And in case of the applicant’s former marriage, a copy of his/her marriage certificate, along with a document confirming its cessation.
It is also possible that the law of the state in which the marriage is to take place may require some other additional documents, so it is sensible and prudent to check that beforehand.
Registration of a marriage contract abroad:
If you have been married abroad, it is advisable to register your marriage with the Register Office in Poland, too. In future this may prove useful and often necessary if you intend to lead your life on the territory of Poland . The Law on Civil Status Records specifies several procedures which will allow you to register your marriage here. First and foremost it recognizes the situation in which the marriage took place in a country with no civil status registration mode. In which case, you are expected to submit a document issued and signed by a representative of the relevant foreign entity, confirming that your marriage indeed took place there, and present it to the Head of the Polish Registry Office.
Another procedure introduces the possibility to register your marriage by means of transcription of your civil status document issued by a foreign entity which confirms the registration of your marriage and the fact that this document has been entered in the foreign register of civil status.
Another registration method permissible is the reconstruction of a civil-status document issued abroad when obtaining its copy is very difficult or impossible. Such a reconstruction will be based on a document confirming that the event in question justifying the registration took place in a foreign country.
It should be noted however, that it may not always be possible to register a marriage contracted abroad, even if all the required procedures are fulfilled and correct application forms and documents have been submitted. The Head of the Polish Registry Office will not register it if there are grounds to believe that it would breach the fundamental principles of the Polish legal order.
Recognition of a divorce:
Considering the multitude of factors having impact on the quality of married life and various events which may lead to the end of a marriage between two people, one will inevitably have to take into account the probability of a divorce. The procedure for the recognition of a foreign divorce obtained abroad, outside the territory of Poland, depends on the date on which it was granted and the country where it came from. Poland’s accession to the European Union meant that a divorce obtained in one of the Member States, pursuant to Council Regulations (EC) No 2201/2003, does not require special proceedings for its recognition. It will only have to be officially registered in the Polish Registry Office. (However, it must be noted here that EU provisions on divorce and separation do not apply in Denmark). A similar procedure applies to divorces which came through after 1 July 2009 in countries outside the European Union.
Divorces obtained in the courts of EU Member States must be recognized in Poland under proceedings before a Regional Court when the divorce was granted before 1 May 2004
The same rule applies to divorces granted by courts outside the European Union before 1 July 2009.
Regardless of which of the above mentioned procedures is provided for the recognition in Poland of a divorce obtained outside the territory of Poland, each time it will be necessary to submit the proper application forms and documents, accompanied by their authorised translation and the nominal fees.
Contemplating a marriage to a person abroad or of a foreign extraction will undoubtedly require the completion of a number of formalities, many of them complex, overbearing and time consuming for a layman. The same will be true to the situation when terminating the marriage seems the only option left. Often the cost of dealing with the problem on your own will outnumber the price of a nominal fee of an experienced lawyer, well acquainted with the formalities and complexities of the Polish legal system.
Should you find yourself in such a predicament, do not hesitate to contact our Chambers and we will gladly and competently support you.