1 Which law applies?
1.1. Which law is applicable to a couple´s property? Which criteria/rules are used to determine the applicable law? Which international conventions have to be respected with regard to certain countries?
Personal and property relations between spouses are subject to the law of the country of which both spouses are nationals (Art. 51 para. 1 of the Act on the Private International Law). If the spouses are not of the same nationality, the law of the country where both spouses are domiciled applies (“domicile” being the place where a person stays with the intention to establish his/her permanent residence there; Art. 25 of the Civil Code). Should the spouses not be domiciled in the same country, the law of the country where both spouses have their place of residence shall be applicable. If the spouses do not reside in the same country, the law of the country to which the spouses are most closely related applies (Art. 51 para. 2 of the Act on the Private International Law). Poland is a party to bilateral agreements concluded with numerous countries and providing for the law applicable to matrimonial property relations. In respect of nationals of those countries, provisions of those agreements prevail over the provisions of the Polish Act on Private International Law. A list of such agreements together with their texts are available at: https://traktaty.msz.gov.pl/english-version
1.2. Do the spouses have the option of choosing the applicable law? If so, by which principles is this choice governed (e.g. the laws to be chosen, formal requirements, retro-activity)?
The spouses may opt for their property relations and marriage contract to be subject to the law of the country of nationality of either of the spouses or of the country where either of the spouses is domiciled or resides. They may choose the applicable law either before entering into marriage or during the marriage (Art. 52 para. 1 of the Act on the Private International Law). Should they not do so, the marriage contract is regulated by the law which was applicable to the personal and property relations between the spouses at the moment the contract was concluded (Art. 52 para. 2 of the Act on the Private International Law).
For the choice of law to be valid, it must take the form provided for marriage contracts by the selected law or the law of the country in which the choice of law is made (Art. 52 para. 3 of the Act on the Private International Law). Under Polish law, the marriage contract must take the form of a notarial authentic instrument (Art. 73 para. 2 of the Civil Code and Art. 47 para. 1 of the Family and Guardianship Code).
