Jurisdiction in matrimonial matters and matters of parental responsibility with a foreign element under EU law, Polish law and Turkish law – Family and marriage

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EU legislation, Council Regulation (EC) No 2201/2003

The instrument which governs jurisdiction in matrimonial matters and parental responsibility in the EU Member States is Council Regulation (EC) No 2201/2003 of 27 November 2003 on jurisdiction, recognition and enforcement matrimonial and parental decisions. responsibility. The ‘universality’ of the regulation means that these provisions apply regardless of whether the spouses are nationals of an EU Member State or not.

In accordance with Article 1 of the aforementioned regulation, the law applies in civil matters relating to divorce, legal separation or marriage annulment, the attribution, exercise, delegation, limitation or termination of parental responsibility. In particular: custody and visitation rights, guardianship, curatorship, designation and functions of any person or entity having custody of the person or property of the child, representing or assisting the child, etc.

In accordance with article 3 of the same regulation,
“In matters of divorce, legal separation or marriage annulment, jurisdiction is attributed to the courts of the Member State:

(a) in whose territory:

  • the spouses have their habitual residence, or

  • the spouses had their last habitual residence, insofar as one of them still resides there, or

  • the respondent has his or her habitual residence, or

  • in the case of a joint application, one of the spouses has their habitual residence, or

  • the applicant has his habitual residence if he resided there for at least one year immediately before the filing of the application, or

  • the applicant has his habitual residence if he has resided there for at least six months immediately before the lodging of the application and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his “domicile”;

(b) the nationality of both spouses or, in the case of the United Kingdom and Ireland, the “domicile” of both spouses.”

The decisive factor for the choice of jurisdiction is the so-called habitual residence. The term “habitual residence” shall not be interpreted in accordance with the law of his state. It is the place where the interests of life are concentrated. It therefore does not necessarily have to be the place of temporary presence at the time of filing a lawsuit, the place of registration, etc.

The grounds of jurisdiction in matrimonial matters are alternative and not cascaded, which means that there is no order of priority between them. The provisions of the regulation aim to allow a flexible choice of forum for persons who have exercised their freedom of movement.

With three (3) exceptions, jurisdiction in matters of parental responsibility is based on the habitual residence of the child. The Court with jurisdiction in matters of parental authority is not necessarily the same as the Court with jurisdiction in matters of divorce.

The first exception is mentioned in Article 9 of the Regulation and provides that in the event of a lawful removal of a child from one Member State to another, the jurisdiction of the courts of the State of previous habitual residence is maintained for the first three months, even if the child already has his habitual residence in another State.

The second exception concerns the wrongful change of habitual residence of the child, which is called child abduction. In this case, jurisdiction is established in favor of the court in whose territory the child had his habitual residence immediately before the wrongful removal, as defined and governed by Article 10 of the Regulation.

A third exception applies when the decision on parental responsibility is linked to the divorce decision. Article 12(1) of the Regulation provides that the court which issues the judgment of divorce has jurisdiction if the following conditions are cumulatively fulfilled: “at least one of the spouses exercises parental authority over the child, the jurisdiction of the courts has been accepted expressly or not in an unequivocal manner by the spouses and by the holders of parental authority, at the time when the jurisdiction is seizure, and is in the best interests of the child‘.

In accordance with Article 19 of the Regulation, in the event that the spouses lodge their application for divorce in different Member States of the European Union, the court subsequently requested to suspend the procedure of its own motion until the jurisdiction of the the court first seised has been established. Where the jurisdiction of a court of a Member State cannot be established under the Regulation, jurisdiction is determined in each Member State by the law of that State.

Jurisdiction in non-EU matters under Polish law

The jurisdiction of the Polish courts in matrimonial matters and in matters of property relations is exclusive only if three conditions are fulfilled at the same time, namely that the spouses are Polish citizens, have their place of residence and their habitual residence in Poland (Article 1103(1) § 2 of the Code of Civil Procedure).

Although, as stated in § 1 of the aforementioned article, the optional jurisdiction of Polish courts in matrimonial matters exists when at least one of the following circumstances occurs:

  1. both spouses had their last domicile or habitual residence in Poland if one of them still has his domicile or habitual residence there, or

  2. the (foreign) applicant spouse has had domicile or habitual residence in Poland for at least one year prior to the procedure, or

  3. the applicant spouse is of Polish nationality and has been domiciled or has his habitual residence in Poland for at least six months before the procedure, or

  4. both spouses are of Polish nationality.

In the case of relations between parents and children, national jurisdiction is exclusive if all persons appearing as parties are Polish citizens and have a domicile or habitual residence in the Republic of Poland (Article 1103, paragraph 2).

Matters relating to the relationship between parents and children also fall under national jurisdiction if:

  1. the child or adoptee or adopters have their place of residence or habitual residence in the Republic of Poland, or

  2. the plaintiff, if different from the child, has his residence or habitual residence in the Republic of Poland for at least one year immediately before the initiation of the proceedings, or

  3. the applicant, if different from the child, is a citizen of Poland and has had, for at least six months immediately before the commencement of the proceedings, his place of residence or habitual residence in the Republic of Poland, or

  4. both plaintiff and defendant are Polish citizens.

Jurisdiction of Turkish courts for cases involving a foreign element

Article 14(1) of the Turkish International Private and Procedural Code No. 5718 (“MOHUK”) states that “the grounds and arrangements for divorce and separation are governed by the common national law of the spouses”. If the spouses are of different nationalities, the law of the place of their common habitual residence, or Turkish law in the absence of such residence, prevails. The provisions of the same article apply to some of the related consequences of divorce cases, such as alimony, alimony claims, custody, guardianship, separation and nullity of marriage. In cases where the competent law is determined on the basis of nationality, place of residence or habitual residence, nationality, place of residence or habitual residence at the date of the trial shall be taken as the basis, unless otherwise provided contrary, according to article 3.

The MOHUK specifies which nationality will be taken into account if one of the spouses is stateless or has several nationalities (Article 4). When a person is stateless, the nationality of the place of residence; failing that, habitual residence; failing this, the State in which he resides on the date of the trial will be taken into account. If the person has multiple nationalities and is also a Turkish citizen, Turkish law applies; if he is not a Turkish citizen, the law of the state with which he is most closely associated applies.

There are some exceptions where Turkish law will apply in specific situations. If, despite the Court’s efforts and research, applicable foreign law provisions cannot be found, Turkish law will be applied (Article 2). According to Article 5, if a provision of relevant foreign law applicable to a specific case is manifestly contrary to Turkish public policy, this provision does not apply; instead, Turkish law must be applied.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

Thelma J. Longworth