EU Law

Conflict of  laws rules in action or Schrödinger’s divorcee

It I have already written about top 5 myths about international law and about what rules  (norms) of  conflict of laws are  and what traps they can hide. So it’s time for some entertainment. In other words Polish and international conflict of laws rules in action  in action. I’ll show you what they can do to you in practice. And they can do  a lot, for example, divorce you in the USA while e.g. in Poland you still remain a happy wife/husband. But that’s not all, because conflict of laws rules can make an Irishwoman from a China girl.  And that’s really something, isn’t it?





conflict of laws rules can  open many doors. Sometimes Irish.
Sometimes conflict of laws rules slam a door in front of your nose, and sometimes on the contrary. For example, they opened the Irish door for a little Chinese girl 😊.
















If you have read my previous entries, then you know that each civilized legal system possesses some conflict of laws rules (norms).  For example, Irish conflict of laws rules  together with Chinese ensured a Chinese little girl’s safe existence and living in UK as an EU citizen.     This incredible adventure began in  early Autumn of 2000 when little Catherine Chen was born in one  of hospital in Belfast  (Northern Ireland).   The girl’s parents were only citizens of the People’s Republic of China and did not have a citizenship of another country.  They lived in Wales as Mr. Chen worked there.

On her sixth month of pregnancy, Mrs. Chen went to Northern Ireland and gave birth to a daughter in Belfast. Of course, she chose this place on purpose.

In 2000, the article  6 of the Irish Nationality and Citizenship Act from 1956 was still in force. Of course, I am  talking hear about  laws of the Republic of Ireland not Northern Ireland which is a part of UK.  As you know, the Irish have never come to terms with the loss of Northern Ireland which was very  visible even during the negotiation of the Brexit deal with UE. 

 Art. 6 of the Act  on Irish Nationality and Citizenship stated that any person born in Northern Ireland  automatically became a citizen of the Republic of   Ireland, unless he/she had acquired another citizenship.

In the case of Catharine, this was the case, because in order to become a Chinese citizen, it was necessary to be born in China.  And she was born in the UK while her parents did not  have British citizenship. Both were citizens of China.   This combination of Irish and Chinese conflict of laws  rules took care of  little Cate’s right of unlimited residence in the territory of another EU Member State, namely the United Kingdom. In addition, her Chinese parents and a sibling acquired the right to stay with her in UK.  All this was confirmed by the judgment of the  Court of Justice of the EU in 2004:  Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department, signature C-200/02  .

For the sake of clarity, the Article 6 of  the Irish Nationality and Citizenship Act has  changed in 2001. So  the “Chinese girl maneuver” is  not possible anymore.





Chinese cranes fighting in Spring
…and sometimes conflict of laws rules will kick you like a Chinese crane fighting in Spring :).
















As you can see conflict of laws rules of international law are clever beasts and sometimes they work to your favor and sometimes… on the contrary  .

For example, thanks to the conflict of laws provisions in  Polish Code of Civil Procedure, you can become a “Schrödinger divorcee”. Seriously. I have invented this term myself, well not quite as I have borrowed the basic idea from a brilliant physicist Erwin Schrödinger. As you probably  know Mr. Schrödinger has described a quantum physics paradox called   Schrödinger’s Cat.

And thanks to Polish conflict of laws rules, you too can be divorced and undivorced at the same time.  Similar Schrödinger’s Cat  dead and alive simultaneously. But…how is this possible?

Let’s say you married  Polish citizen and then you two divorced in the USA. If you or/and your ex-spouse want this US court
(or other body) verdict to be effective in the territory of Poland, you will need to have it  recognized  as effective by a  Polish court.

In general, such a recognition is automatically done according to Polish laws.  So typically it is sufficient to submit an application to a district court, which simply recognizes the effectiveness of a foreign court (or other foreign body) verdict  in the territory of the Republic of Poland. However, sometimes a foreign judgment (or settlement, etc.) cannot be regarded as effective, because one of the obstacles listed  in the article 1146 of the Polish Code of Civil Procedure (CCP) prevents it from being recognized as effective in Poland.

As a result, you can be a  divorcee in the USA but you will still remain a happy wife or husband  in Poland.  And with all legal consequences a marriage entails: from common child care, through a joint property of spouses (yep, Polish laws actually impose it by default with certain exceptions) and e.g. common, martial  mortgage.  

I have used  the example of divorce in the USA on purpose as  the  Polish courts  quite often refuse recognizing  American divorces as effective in Poland. Why?

Well, in many states you can get a perfectly valid divorce even if your spouse has not been informed about the divorce at all. This is absolutely in line with the regulations there.  Attempts are made to provide a lawsuit or divorce documents, but the other party ( your ex- husband or ex-wife) does not have to receive them at all.

 Then, the couple, who divorced in this way, marches to the Polish court, asks for recognition of the effectiveness of the divorce judgment in Poland and… it turns out that it’s not going to happen.  Polish  conflict of laws rules  forbit  such a recognition.  Our laws require that  your spouse if fully aware and properly informed that you intend to divorce him or her (please check 1146 § 1 paragraph 3  of Polish CCP) .

 Moreover, according to Polish laws one cannot  get divorced in Poland without  knowing about it and having  an opportunity to defend one’s rights.

I used the example of Polish  conflict of laws rules here  but similar situation can  happen also in other countries.

Bottom line: it is absolutely possible that  you are already divorced in  one country  but… you may need to go though the whole divorce procedure once more if you want  to divorce in another.  And these 2 divorce verdicts may not match at all.

Isn’t this fascinating ?:)




...and occasionally conflict of laws rule are like a prickly cactus
…and occasionally conflict of laws rule are like a prickly cactus

















And now, while writing about the conflict of laws rules in action, I will also mention two “special cases”.

Firstly, there are cases in which countries prefer to maintain their exclusive national jurisdiction.   Their laws state that only this country courts or other applicable bodies  can decide regarding certain matters.  

What these matters typically are? 

As a rule, everything involved in  granting or losing citizenship of a country and any matters relating to  real estates or other types of land located in a country.  You admit it makes sense, right?   Poland is no exception.

If a foreign court or any other foreign authority has issued a decision concerning, for example, a sole ownership or co- ownership of a real estate located in Poland, unfortunately such a decision or a verdict is automatically null and void in Poland according to Polish laws.

Finally,  typically  each country  conflict of laws rules have some sort of remedy for highly atypical,  super cases.   

Due to obvious reasons I will  use Polish example again. I am thinking about another obstacle  to recognize  a foreign judgment/ settlement as effective in Poland, namely art. 1146 paragraph 1(7) of CCP – public order clause.

None foreign court or another  body verdict or decision can be recognized as effective in Poland if  its recognition would be contrary to the fundamental principles of the legal order of the Republic of Poland  “.   

The public order clause is a root cause of all the disappointments and voices of outrage when, once again, a Polish court refuses, for example, to  register a birth certificate of a child whose parents are of the same sex (a very good and interesting example is the judgment of 10 May 2016. III SA/Kr 1400/15).

Polish  family law is very conservative: the child’s parents are a woman and a man which excludes stating in any official, national  registry that a child’s both parents are of the same sex. Therefore such an entry in a public register would infringe one of the fundamental principles of Polish family  law and as such collides with the fundamental principles of the legal order of the Republic of Poland.

At least now.

Regards, Prawstoria


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