Two different questions

Cross-border divorce raises two separate questions that are easy to confuse. The first is jurisdiction — which country’s courts may hear the divorce. The second is applicable law — which country’s substantive law the court then applies to the divorce itself. A Polish court can have jurisdiction and yet, in some situations, apply foreign law to the merits.

Jurisdiction: the Brussels II ter Regulation

For EU-connected couples, jurisdiction in divorce is set by the Brussels II ter Regulation (Regulation (EU) 2019/1111), applicable in EU Member States except Denmark to proceedings started on or after 1 August 2022 (older cases may fall under the former Brussels II bis Regulation).

It provides several alternative grounds, based mainly on habitual residence: where both spouses are habitually resident; where they were last habitually resident and one still lives there; where the respondent lives; on a joint application, where either spouse lives; where the applicant has lived for at least a year before filing; or for at least six months if the applicant is a national of that State. There is also a ground based on both spouses’ common nationality. Because the grounds are alternative, more than one Member State can be competent.

First court seised and lis pendens

When more than one Member State is competent and proceedings are started in two of them, the court first seised generally takes priority. The court seised later stays its case until the first court decides on its jurisdiction. This makes the timing of filing strategically important in contested international divorces.

Applicable law: why Poland does not use Rome III

Some EU countries determine the law applicable to divorce under the Rome III Regulation, which even allows spouses to choose the applicable law. Poland, however, did not join Rome III. A Polish court therefore determines the applicable law under Polish private international law, not under Rome III, and the spouses’ choice-of-law mechanism of Rome III does not apply before a Polish court.

How Polish conflict rules decide the applicable law

Under Polish private international law, divorce is governed in principle by the common national law of the spouses at the relevant time. If the spouses have no common nationality, the law of their common domicile applies; failing that, the law of their common habitual residence; and if none of these connects them, Polish law applies. The court works down this ladder to find the governing law.

This can lead to a different outcome than in a Rome III country — for instance on the grounds for divorce or the treatment of fault — which is why identifying the applicable law early is so important.

Why it matters in practice

The combination of forum and applicable law shapes the result: how quickly you can divorce, whether fault is examined, and how connected issues such as spousal maintenance are treated. Comparing Poland with the other country involved, before filing, is often the most valuable single step in a cross-border divorce.

Frequently asked questions

Can a Polish court apply foreign law to my divorce?

Yes. Polish courts determine the applicable law under Polish conflict rules — often the spouses’ common national law — so a Polish court may apply foreign divorce law in some cases.

Does Rome III apply in Poland?

No. Poland did not join the Rome III Regulation, so the applicable law is decided under Polish private international law, not Rome III.

Can we choose which law applies?

In Rome III countries spouses may choose the applicable law; because Poland is not a Rome III state, that choice mechanism does not apply before a Polish court.

If two countries are competent, which court decides?

Generally the court first seised. If proceedings start in two Member States, the later court stays its case until the first rules on jurisdiction — so timing matters.