Family and guardianship law
Legal aid includes representation in proceedings to establish the existence or non-existence of a marriage and legal advice in this regard.
An action to determine the existence or non-existence of a marriage aims to determine whether there has been an effective marriage. The non-existence of marriage may be referred to when the conditions referred to in Article 1 of the Code of Marriage are not met. An action may be brought by anyone who has a legal interest in it, as well as the public prosecutor. If an action to establish the non-existence of a marriage is upheld, it is assumed that the marriage never existed, i.e. it was never effectively concluded.
Legal aid includes representation in marriage annulment proceedings and legal advice in this area.
Articles 10-15 of the Marriage Code list marriage impediments, i.e. circumstances that prevent marriage. The following obstacles are known in law: age, total incapacitation, mental illness or mental retardation, being married (bigamy), consanguinity or affinity and adoption.
If a marriage has been concluded, despite an existing impediment, and there are no circumstances that have led to its annulment (removal of the impediment), the persons mentioned in the legislation (usually each spouse and the public prosecutor) have the right to bring an action for annulment of the marriage.
An action for marriage annulment may also be brought if the declaration of will to enter into marriage is affected by one of the defects listed in Article 151 of the Marriage Code. A defect in a declaration of will justifying an action for marriage annulment may be: a state excluding conscious expression of will, a mistake as to the identity of the other party, an unlawful threat by the other party or a third party, if the circumstances indicate that the declarant could have feared that he himself or another person is threatened with serious personal danger.
Those entitled to bring an action for annulment of a marriage due to a defect in a declaration of intent are the spouse who made the defective declaration and the public prosecutor.
The annulment of a marriage due to a defect in a declaration of will is not possible after the lapse of six months from the cessation of the state that excludes conscious expression of will, from the discovery of the error or from the cessation of the fear caused by the threat – and in any case after the lapse of three years from the marriage.
A marriage may also be annulled if it was entered into by a proxy and there was no court authorisation for the proxy to make a declaration of marriage or if the proxy was invalid or effectively revoked. The spouse who granted the power of attorney and the public prosecutor are entitled to bring an action. An action for annulment of marriage on the grounds that the power of attorney was defective may not be brought if the spouses have entered into cohabitation.
The effect of upholding an action for annulment of marriage is the legal fiction that the marriage was never concluded. Further consequences are the return to the previous marital status, the cessation of the relationship of affinity and the return to the surname worn before the date of the marriage.
Legal assistance includes representation in divorce proceedings, as well as negotiation at the pre-trial stage of settlements covered by the divorce decree and legal advice in this respect.
Pursuant to Article 56 of the Polish Family Law Code, if there has been a complete and permanent dissolution of marriage between the spouses, either spouse may request the court to dissolve the marriage by divorce. The legislator has introduced three negative grounds for pronouncing a divorce. Despite a complete and permanent dissolution of marriage, a divorce is not admissible if the welfare of the spouses’ joint minor children would suffer as a result or if it would be contrary to public policy to pronounce a divorce on other grounds. Nor shall a divorce be allowed where it is requested by a spouse who is solely responsible for the divorce, unless the other spouse consents to the divorce or where it is, under the given circumstances, contrary to public policy to refuse his or her consent to the divorce.
Divorce may be pronounced with an indication as to which of the spouses is at fault for the breakdown of the marriage. The court is obliged to establish which of the spouses is at fault for the breakdown of the marriage, unless the spouses unanimously request that no apportionment of fault be made. If, at the unanimous request of the parties, the court does not decide on fault for the marriage breakdown, the consequences follow as if neither spouse was at fault.
In a judgment pronouncing divorce, the court shall decide on parental authority over the joint minor child of both spouses, contact between the parents and the child and maintenance. The court may, at the unanimous request of the parties, refrain from ruling on the maintenance of the parents’ contact with the child.
In the divorce decree, the court decides on the use of the jointly occupied flat by the spouses for the duration of their continued cohabitation therein after the divorce. In exceptional situations, the court may order the eviction of a spouse who, through grossly reprehensible conduct, prevents cohabitation. At the unanimous request of the parties, the court may also rule on the division of the joint dwelling or on the allocation of the dwelling to one of the spouses if the other spouse agrees to vacate the dwelling without providing a replacement dwelling and a substitute room.
In a divorce judgment, the court may also divide the joint property at the request of one of the spouses if carrying out the division will not cause undue delay in the proceedings.
Legal assistance includes representation in proceedings to oblige a spouse to pay maintenance to the other spouse on the grounds of privation or material deterioration of material circumstances, as well as activities at the pre-court stage (including negotiations and exchange of letters) and legal advice in this respect.
Pursuant to Article 60 § 1 of the Polish Family Law Code, a divorced spouse who has not been found solely guilty of the decay of marriage and who is in a state of privation may request the other divorced spouse to provide maintenance to the extent corresponding to the justified needs of the entitled spouse and to the earning and property possibilities of the obligor.
Pursuant to Article 60 § 2 of the Polish Family and Guardianship Code, if one of the spouses has been found solely guilty of dissolution of marriage and the divorce entails a substantial deterioration of the financial situation of the innocent spouse, the court may decide, at the request of the innocent spouse, that the spouse who is solely guilty is obliged to contribute to an appropriate extent to satisfying the justified needs of the innocent spouse, even if the latter is not in a state of privation.
The legislator determines the length of time for which the spousal maintenance obligation should be performed. As a general rule, the obligation to pay maintenance ceases if the spouse entitled to maintenance enters into a new marriage. However, if the obligor is a divorced spouse who has not been found guilty of dissolution of marriage, the maintenance obligation shall in principle also cease with the lapse of five years from the pronouncement of the divorce, unless the court extends the five-year period at the request of the beneficiary due to exceptional circumstances.
According to Article 130 of the Marriage Code, the obligation of one spouse to provide maintenance to the other spouse after the dissolution or annulment of the marriage or after the decree of separation precedes the maintenance obligation of the relatives of that spouse.
Legal aid includes representation in proceedings obliging the father of the child, who is not the mother’s husband, to pay the expenses of the pregnancy and childbirth and the three-months’ living expenses of the child’s mother during the birth and postpartum period, as well as activities at the pre-court stage (including negotiations and exchange of letters) and legal advice in this regard.
Pursuant to Article 141(1) of the Civil Code, a father who is not the mother’s husband is obliged to contribute, to an extent appropriate to the circumstances, to the expenses of the pregnancy and childbirth and the costs of three months’ maintenance of the mother during the period of childbirth.
For valid reasons, the mother may request the father to contribute to the costs of her maintenance for more than three months. If, as a result of the pregnancy or childbirth, the mother has incurred other necessary expenses or special property losses, she may demand that the father pay an appropriate part of these expenses or losses. The mother shall also be entitled to the above claims if the child was born dead. Pursuant to Article 141(2) of the Family Law Code, the mother’s claims as provided for in the preceding paragraph are time-barred with the lapse of three years from the date of birth.
On the basis of Article 142 of the Family Law Code, a man who is not the husband of the mother and whose paternity has been established may be required to pay an appropriate sum of money in advance for the mother’s living expenses.
Legal assistance includes representation in separation proceedings, as well as negotiation at the pre-litigation stage of decisions covered by the separation judgment and legal advice in this regard.
Pursuant to Article 611 § 1 of the Polish Family Law Code, if there has been a complete dissolution of marriage between the spouses, either spouse may request that the court declare a separation.
Pursuant to Article 611 § 2 of the Polish Civil Code, despite the complete decomposition of marriage, the pronouncement of separation is not permissible if the welfare of the spouses’ joint minor children would suffer as a result, or if, for other reasons, the pronouncement of separation would be contrary to the principles of social co-existence.
Pursuant to Article 611 § 3 of the Civil Code, if the spouses do not have any minor children in common, the court may pronounce separation on the basis of a consensual request of the spouses.
The decision on separation contains the same elements as in the divorce judgment.
The effects of a declaration of separation are, in principle, the same as those of a divorce. However, separated spouses may not enter into another marriage.
Legal assistance includes representation in proceedings for the division of spouses’ joint property, as well as activities at the pre-court stage (including negotiations and exchange of letters) and legal advice in this regard.
After the dissolution of the marriage by divorce (and exceptionally during the divorce trial), the court may, at the request of the former spouses, rule on the division of the joint property if there was a system of matrimonial community of property between the spouses.
The provisions on joint ownership and division of the estate shall apply mutatis mutandis to the division of joint property. These provisions, however, refer to the appropriate application of the provisions on the abolition of joint ownership in fractional parts. The division of joint property may therefore take place by:
- physical division of the common property, unless the division of the property would be contrary to the provisions of the law or to the social and economic purpose of the property or would involve a substantial change in the property or a substantial diminution in its value,
- award of the property to one spouse with an obligation to repay the other,
- bidding for things.
Pursuant to Article 43 § 1 of the Polish Civil Code, the rule is that both spouses have equal shares in the joint property. However, pursuant to Article 43 § 2 of the Polish Family and Guardianship Code, for valid reasons, each spouse may request that the determination of the shares in the joint property be made taking into account the extent to which each of them has contributed to the creation of that property. The heirs of a spouse may make such a demand only if the testator has brought an action for annulment of the marriage or for divorce or applied for a decree of separation. The legislator specifies the criteria to be taken into account when assessing whether the court may rule on unequal shares of the spouses in the joint property. Pursuant to Article 43 § 3 of the Family Law Code, in addition to determining the extent to which each spouse has made efforts to acquire individual assets of the joint property, when assessing the extent to which each spouse has contributed to the creation of the joint property, the amount of personal work in bringing up children and in the common household is also taken into account.
Expenditure and outlays made from joint property to personal property and vice versa are also decided in proceedings for the division of joint property.
Pursuant to Article 45 § 1 of the Polish Civil Code, each spouse should reimburse the expenses and outlays made from the joint property to his or her personal property, with the exception of expenses and outlays necessary for income-generating assets. He or she may claim reimbursement of expenses and outlays made from his or her personal property to the common property. Expenditure and outlays used to satisfy the needs of the family may not be claimed for reimbursement, unless they have increased the value of the property at the time of the cessation of the community. Pursuant to Article 45 § 2 of the Civil Partnership Code, reimbursement shall be made upon division of the joint property, but the court may order earlier reimbursement if the good of the family so requires. Pursuant to Article 45 § 3 of the Polish Family Relations Code, the above provisions apply mutatis mutandis in the event that the debt of one of the spouses has been satisfied from the joint property.
Legal aid includes legal advice on the choice or modification of the matrimonial property regime and the execution of individual legal actions concerning the spouses’ assets.
The legislator provides for several types of matrimonial property regimes. Among these, a distinction is made between statutory, contractual and coercive regimes.
The matrimonial statutory regime is a community of matrimonial property. Unless otherwise willed by the spouses, a community of matrimonial property is created between them upon marriage. In principle, all property rights acquired after the marriage are included in the community property. In addition to the common property, each spouse also has separate personal property.
Article 31 § 1 of the Civil Code. Upon marriage, by operation of the law, a community of property is created between spouses (statutory community) covering property items acquired during its duration by both spouses or by one of them (joint property). Property items not covered by statutory community of property belong to the personal property of each spouse.
Pursuant to Article 31 § 2 of the Code of Civil Partnerships, joint property includes, in particular:
1) the collected remuneration for work and income from other gainful activity of each spouse;
2) income from joint property as well as from the personal property of each spouse;
3) funds accumulated in each spouse’s open or occupational pension fund account;
4) the amount of contributions deposited on the subaccount referred to in Article 40a of the Act of 13 October 1998 on the social security system (Journal of Laws of 2023, item 1230, 1429, 1672 and 1941);
(5) funds accumulated in an OIPE account within the meaning of Article 2(5) of Regulation (EU) 2019/1238 of the European Parliament and of the Council of 20 June 2019 on a pan-European individual pension product (OIPE) (OJ L 198, 25.07.2019, p. 1) and in an OIPE sub-account within the meaning of Article 2(9) of the Act of 7 July 2023 on a pan-European individual pension product (OJ L 1843) of each spouse.
Pursuant to Article 33 of the Civil Code, the personal property of each spouse includes:
1) property acquired before the formation of the statutory community;
2) property acquired by inheritance, bequest or donation, unless otherwise provided by the testator or donor;
3) property rights arising from joint ownership subject to separate regulations;
4) property used exclusively to meet the personal needs of one of the spouses;
5) non-transferable rights that can only be enjoyed by one person;
6) objects obtained by way of compensation for bodily injury or causing a disorder of health or by way of compensation for non-material damage suffered; however, this does not apply to the pension due to the injured spouse on account of the total or partial loss of earning capacity or on account of an increase in his or her needs or a decrease in his or her future prospects;
7) claims from the remuneration of the work or other gainful activity of one of the spouses;
8) property obtained from an award for the personal achievements of one of the spouses;
9) copyright and related rights, industrial property rights and other rights of the creator;
10) property acquired in exchange for personal property, unless a special provision provides otherwise.
The legislator requires the consent of the other spouse to perform legal acts that concern joint property. According to Article 37 § 1 of the Code of Civil Procedure, the consent of the other spouse is needed to perform:
- legal transaction leading to the disposal, encumbrance, acquisition of real estate or perpetual usufruct for consideration, as well as leading to the transfer of real estate for use or deriving benefits from it;
- a legal transaction leading to the transfer, encumbrance, acquisition against payment of a right in rem the object of which is a building or premises;
- legal transaction leading to the disposal, encumbrance, acquisition for consideration and lease of an agricultural holding or business;
- donations from the common property, except for small donations customary.
The legislator has also defined the consequences of performing a legal act without the required consent of the other spouse.
Pursuant to Article 37 § 2 of the Civil Code, the validity of a contract which has been concluded by one spouse without the required consent of the other spouse depends on the confirmation of the contract by the other spouse.
Pursuant to Article 37(3) of the Family Law Code, the other party may set a reasonable period of time for the spouse whose consent is required to confirm the agreement; he or she becomes free upon the ineffective expiry of the set period.
In turn, according to Article 37 § 4 of the Civil Code, a unilateral legal act performed without the required consent of the other spouse is invalid.
Among the contractual property regimes, a distinction is made:
- matrimonial property regime limited or extended by agreement between the spouses,
- a system of property separation,
- a system of separation of property with equalisation of assets.
The establishment of a contractual property regime requires the form of a notarial deed.
A compulsory regime is a regime of separation of property.
Legal assistance includes representation in proceedings for the judicial establishment of marital property separation (for the future or retrospectively), as well as activities at the pre-court stage (including negotiations and exchange of letters) and legal advice in this respect.
Pursuant to Article 52 § 1 of the Civil Code, for valid reasons, either spouse may request that the court establish a property separation.
Pursuant to Article 52 § 1a of the Polish Family and Partnership Code, a creditor of one of the spouses may also request the court to establish property separation if he or she makes it plausible that satisfaction of the claim stated in the enforcement order requires the division of the spouses’ joint property.
According to Article 52 § 2 of the Polish Family and Children Code, a property separation comes into existence on the date specified in the judgment which establishes it. In exceptional cases, the court may establish property separation as of a date earlier than the date of the action, in particular if the spouses have lived apart.
Pursuant to Article 52 § 3 of the Civil Code, the establishment of a property separation by the court at the request of one of the spouses does not preclude the spouses from concluding a marital property contract. If the property separation has been established at the request of a creditor, the spouses may conclude a marital property agreement after the joint property has been divided or after the creditor has obtained security or satisfaction of a claim, or after the lapse of three years from the establishment of the separation.
Legal assistance includes advice on the issue of spousal liability and representation in proceedings relating to the realisation by creditors against one spouse of measures of liability for debts incurred by the other spouse.
Liability for debts incurred by a spouse depends on whether they are in connection with the satisfaction of the ordinary needs of the family.
Pursuant to Article 30 § 1 of the Polish Civil Code, both spouses are jointly and severally liable for obligations incurred by one of them in matters arising from the satisfaction of ordinary family needs. As stipulated in Article 30 § 2 of the Polish Family and Guardianship Code, for important reasons, the court may, at the request of one of the spouses, decide that only the spouse who incurred the obligation is responsible for the aforementioned obligations. This provision may be revoked if circumstances change. Pursuant to Article 30 § 3 of the Code of Civil Procedure, a disclaimer of joint and several liability is effective vis-à-vis third parties if it was known to them.
Pursuant to Article 41 § 1 of the Polish Family and Guardianship Code, if a spouse has entered into an obligation with the consent of the other spouse, a creditor may also demand satisfaction from the joint property of the spouses. Pursuant to Article 41 § 2 of the Polish Civil Code, if a spouse has contracted an obligation without the consent of the other spouse or an obligation of one of the spouses does not arise from a legal transaction, a creditor may demand satisfaction from the personal property of the debtor, from remuneration for work or from income obtained by the debtor from other gainful activity, as well as from benefits obtained from his rights referred to in Article 33(9), and if the claim arose in connection with the running of an enterprise, also from the assets constituting the enterprise. However, pursuant to Article 41(3) of the Polish Civil Code, if a claim arose before the commonality arose or relates to the personal property of one of the spouses, the creditor may request satisfaction from the personal property of the debtor, from remuneration for work or from income earned by the debtor from other gainful activity, as well as from benefits derived from his rights referred to in Article 33(9).
Legal assistance includes representation in proceedings to order payment of wages to the other spouse, as well as activities at the pre-litigation stage (including negotiations and exchange of letters) and legal advice in this regard.
Pursuant to Article 28 § 1 of the Polish Family Law Code, if one of the cohabiting spouses fails to fulfil his or her obligation to contribute to the satisfaction of the needs of the family, the court may order that the remuneration for work or other dues payable to that spouse be paid in whole or in part to the other spouse.
Pursuant to Article 28 § 2 of the Code of Civil Procedure, the order referred to in the preceding paragraph shall remain in force despite the cessation of the spouses’ cohabitation after its issuance. However, the court may, at the request of either spouse, modify or revoke the order.
Legal aid includes representation in proceedings for the settlement of significant family matters, as well as activities at the pre-court stage (including negotiation, where possible in the situation, and exchange of letters) and legal advice in this respect.
Pursuant to Article 24 of the Family Law Code, the spouses decide jointly on important family matters; in the absence of an agreement, either of them may ask the court to decide.
Legal aid includes representation in proceedings to establish or deny maternity. Article 619 of the Civil Code stipulates that the mother of the child is the woman who gave birth to the child. This provision implements a principle still derived from Roman law, according to which the mother is always certain (mater semper certa est).
However, due to the practice of surrogacy, further specific solutions have been introduced. Article 6110 § 1 of the Polish Civil Code provides that if the birth certificate of a child of unknown parents has been drawn up or the maternity of the woman entered in the child’s birth certificate as its mother has been denied, a maternity determination may be requested. According to Article 6110 § 2 of the Civil Code, an action to establish maternity is brought by the child against the mother or, if the mother is dead, against a guardian appointed by the guardianship court. In the event of the death of the child who brought the action, the determination of maternity may be claimed by the child’s descendants. On the other hand, according to Article 6110 § 3 of the Civil Code, the mother brings an action to establish maternity against the child, and if the child is deceased, against a guardian appointed by the guardianship court.
The legislator introduces time limitations for bringing an action to establish maternity. According to Article 6111 of the Civil Code, the mother may not bring an action to establish maternity after the child has reached the age of majority. If the child dies before coming of age, the mother may bring an action to establish maternity until the date on which the child would have come of age.
According to Article 6112 § 1 of the Civil Code, if the birth certificate lists as mother a woman who did not give birth to the child, a denial of maternity may be claimed. The action for the denial of maternity is brought by the child against the woman entered in the child’s birth certificate as the child’s mother, and if the woman is dead, against the guardian appointed by the guardianship court. The mother shall bring an action against the woman entered on the child’s birth certificate as the child’s mother and against the child and, if the woman is deceased, against the child. The woman entered on the child’s birth certificate as the child’s mother brings an action against the child. A man whose paternity has been established taking into account the maternity of the woman entered on the child’s birth certificate as its mother shall bring an action against the child and against that woman and, if she is dead, against the child.
As in the case of the determination of maternity, the legislator introduces a time limit for bringing an action for the denial of maternity. According to Article 6113 § 1 of the Civil Code, the mother or the woman entered in the child’s birth certificate as its mother may bring an action for the denial of maternity within one year from the date of the child’s birth certificate. The denial of maternity may also entail changes as to the paternity disclosed on the birth certificate. Pursuant to Article 6113 § 2 of the Civil Code, a man whose paternity has been established taking into account the maternity of the woman entered on the child’s birth certificate as its mother may bring an action for the denial of maternity within a year from the date on which he learnt that the woman entered on the child’s birth certificate is not the child’s mother, but no later than the date on which the child attains the age of majority.
Pursuant to Article 6114 § 1 of the Civil Code, a child who has reached the age of majority may bring an action for denial of maternity within one year from the date on which he or she became aware that he or she was not descended from the woman entered on the birth certificate as his or her mother. If the child became aware of this circumstance before the date of coming of age, the time limit for bringing an action runs from the date of coming of age.
According to Article 6115 § 1 of the Civil Code, denial of maternity is not admissible after the death of the child, unless the child died after the proceedings were initiated. In the event of the death of the child who brought the action, the denial of maternity may be claimed by the child’s descendants.
Pursuant to Article 6116 c.r.o., an action to establish or deny maternity may also be brought by the public prosecutor if the welfare of the child or the protection of the public interest so requires. If the child died before coming of age, the public prosecutor may bring an action for the denial of maternity up to the date on which the child would have come of age. The prosecutor’s bringing of an action for denial of maternity is not permitted if the child died after reaching the age of majority.
Legal aid includes representation in proceedings to establish the ineffectiveness of an acknowledgement, to establish or deny paternity.
The legislator introduces a presumption of paternity. Pursuant to Article 62(1) of the Civil Partnership Code, if a child is born during the marriage or before the expiry of three hundred days after its cessation or annulment, the child is presumed to have descended from the mother’s husband. This presumption does not apply if the child was born more than three hundred days after the separation was pronounced. However, pursuant to Article 62(2) of the Civil Partnership Code, if the child was born before the expiry of three hundred days after the cessation or annulment of the marriage but after the mother had entered into a second marriage, the child is presumed to have descended from the second husband. This presumption does not apply if the child was born following a medically assisted procreation procedure consented to by the mother’s first husband.
Denying paternity involves bringing an action to rebut the above presumptions. Paternity is denied by proving that the mother’s husband is not the child’s father. The denial of paternity is not admissible if the child was born following a medically assisted procreation procedure to which the mother’s husband consented. The denial of paternity is not admissible after the death of the child, unless the child died after the initiation of the proceedings. In the event of the death of the child who brought the action, the denial of paternity may be claimed by the child’s descendants.
According to Article 63 of the Family Law Code, the mother’s husband may bring an action for the denial of paternity within one year from the date on which he learned that the child did not come from him, but no later than the date on which the child came of age. The mother’s husband should bring an action for the denial of paternity against the child and the mother, and if the mother is dead, against the child.
Pursuant to Article 69(1) of the Civil Partnership Code, a mother may bring an action for the denial of paternity of her husband within one year from the date on which she became aware that the child did not originate from him, but no later than the date on which the child came of age. The mother should bring an action to deny paternity against the husband and the child, and if the husband is dead, against the child.
According to Article 70(1) of the Civil Code, a child, after reaching the age of majority, may bring an action to deny paternity within one year from the date on which he or she learned that he or she is not descended from his or her mother’s husband. If the child became aware of this circumstance before the date of coming of age, the time limit for bringing an action shall run from the date of coming of age. The child should bring an action against the husband of his mother and his mother, and if the mother is dead, against her husband. If the mother’s husband is dead, the action should be brought against the guardian appointed by the guardianship court.
Determination of paternity pursuant to Article 72 § 1 of the Civil Code may take place if there is no presumption that the child’s husband is the father of the child, or if such presumption has been rebutted, paternity may be established either by acknowledgement of paternity or by court decision.
The procedure for establishing paternity is set out in Article 84 of the Civil Code. According to this provision, judicial determination of paternity may be requested by the child, the child’s mother and the child’s alleged father. Neither the mother nor the alleged father may bring an action to establish paternity after the child has reached the age of majority. If the child dies before coming of age, the mother and the alleged father may bring an action to establish paternity up to the date on which the child would have come of age. Either the child or the mother shall bring an action to establish paternity against the presumed father or, if the presumed father is dead, against a guardian appointed by the guardianship court. The alleged father of the child shall bring an action to establish paternity against the child and the mother. If the child’s mother is dead, the action shall be brought against the child and, if the child is dead, against the guardian appointed by the guardianship court. In the event of the death of the child who brought the action, the establishment of paternity may be claimed by the child’s descendants.
If a man has acknowledged paternity of a child that does not originate from him, pursuant to Article 78(1) of the Civil Code, he may bring an action to establish the invalidity of the acknowledgement within one year from the date on which he learned that the child did not originate from him. In the case of an acknowledgement of paternity before the birth of a child already conceived, the time limit cannot begin to run before the child is born.
Pursuant to Article 80 of the Family Law Code, once the child has reached the age of majority, an action to establish the invalidity of an acknowledgement of paternity cannot be brought either by the child’s mother or by the man who acknowledged paternity.
A child may request that an acknowledgment of paternity be declared ineffective if the acknowledging man is not his father. This claim may be brought by the child after reaching the age of majority within one year from the date on which the child learned that he or she did not come from the man who acknowledged paternity. If the child became aware of this circumstance before the date of coming of age, the time limit for bringing an action shall run from the date of coming of age.
The man who has acknowledged paternity shall bring an action to establish the ineffectiveness of the acknowledgement against the child and the mother or, if the mother is dead, against the child.
The mother shall bring an action to establish the ineffectiveness of the acknowledgement of paternity against the child and the man who acknowledged paternity, or, if that man is dead, against the child.
The child shall bring an action to establish the ineffectiveness of an acknowledgement of paternity against the man who has acknowledged paternity and against the mother or, if the mother is dead, only against that man. If that man is dead, the action should be brought against a guardian appointed by the guardianship court.
Pursuant to Article 83 § 1 of the Civil Procedure Code, the determination of the ineffectiveness of an acknowledgement of paternity is not admissible after the death of the child, unless the child died after the initiation of the proceedings. On the other hand, according to Article 83 § 2 of the Civil Code, in the event of the death of the child who brought the action, the determination of the ineffectiveness of an acknowledgement of paternity may be claimed by his descendants.
According to Article 86 of the Civil Procedure Code, an action to establish or deny paternity and to determine the ineffectiveness of an acknowledgement of paternity may also be brought by a public prosecutor if the child’s welfare or the protection of the public interest so requires. If the child has died before reaching the age of majority, the public prosecutor may bring an action to deny paternity and to establish the ineffectiveness of an acknowledgement of paternity up to the date on which the child would have reached the age of majority. The prosecutor’s bringing of an action for the denial of paternity and determination of the ineffectiveness of an acknowledgement of paternity shall not be allowed if the child died after reaching the age of majority.
Legal aid includes counselling, negotiation and representation in child contact proceedings.
According to Article 113 § 1 of the Family Law Code, irrespective of parental authority, parents and their child have the right and duty to maintain contact with each other. The legislator also determines how contact with the child may be regulated. Pursuant to Article 113 § 2 of the Polish Family and Guardianship Code, contacts with the child include, in particular, staying with the child (visits, meetings, taking the child out of the child’s place of permanent residence) and direct communication, maintaining correspondence, using other means of distant communication, including electronic means of communication.
Article 1131 c.r.o. introduces rules for determining contact with the child. If the child resides permanently with one of the parents, the manner of maintaining contact with the child by the other parent is determined jointly by the parents, guided by the child’s welfare and taking into account the child’s reasonable wishes; in the absence of agreement, the guardianship court decides. This rule shall apply mutatis mutandis if the child is not staying with either parent and is cared for by a guardian or has been placed in foster care.
Contact with the child can also be restricted. Pursuant to Article 1132 § 1 of the Civil Code, if the welfare of the child so requires, the guardianship court shall limit the maintenance of contact between the parents and the child. Pursuant to Article 1132 § 2 of the Civil Code, the guardianship court may in particular:
1) prohibit meeting the child;
2) prohibit the child from being taken away from his or her place of permanent residence;
3) allow the child to meet only in the presence of the other parent or the guardian, the probation officer or any other person designated by the court;
4) limit contacts to certain means of distance communication;
5) prohibit remote communication.
In addition to cases where contact with the child is restricted, it is also possible to prohibit such contact. According to Article 1133 c.r.o., if the maintenance of the parents’ contacts with the child seriously threatens or violates the child’s welfare, the court will prohibit them.
Pursuant to Article 1134 c.r.o., the guardianship court, when ruling on contact with the child, may oblige the parents to behave in a certain way, in particular to refer them to establishments or specialists dealing with family therapy, counselling or providing other appropriate assistance to the family, while indicating how to control the implementation of the orders issued.
Pursuant to Article 1135 c.r.o., the guardianship court may modify the contact decision if the child’s welfare so requires.
According to Article 1136 c.r.o., the provisions of this section apply mutatis mutandis to the contacts of siblings, grandparents, relatives in the direct line, as well as other persons if they have had custody of the child for an extended period of time.
Legal aid includes advice and representation in proceedings for the restriction, suspension, termination and restoration of parental authority.
According to Article 92 of the Family Code, the child remains under parental authority until the age of majority.
According to Article 93 § 1 of the Family Law Code, parental authority is vested in both parents. The legislator allows the court to interfere in the scope of the exercise of parental authority. According to Article 93 § 2 of the Polish Family and Children Code, if the child’s best interests so require, the court, in its judgment establishing the child’s parentage, may rule on the suspension, restriction or termination of parental authority of one or both parents.
Article 94 § 1 of the Family Law Code introduces the principle that if one parent is deceased or lacks full legal capacity, parental authority is vested in the other parent. The same applies if one of the parents has been deprived of parental authority or if his or her parental authority has been suspended. According to Article 94 § 3 of the Family Law Code, if neither parent has parental authority or if the parents are unknown, a guardianship shall be established for the child.
According to Article 95 § 1 of the Polish Family and Children Code, parental authority includes, in particular, the duty and right of parents to exercise custody over the child’s person and property and to bring up the child, with respect for the child’s dignity and rights. Pursuant to Article 95 § 2 of the Polish Family Law Code, a child under parental authority owes obedience to his or her parents, and in matters in which he or she can make decisions and declarations of intent independently, he or she should listen to the opinions and recommendations of the parents formulated for his or her benefit. By virtue of Article 95(3) of the Family Law Code, parental authority should be exercised in such a way as the child’s best interests and the interests of society require. The exercise of parental authority should take into account the position of the child. Article 95 § 4 of the Polish Family and Guardianship Code provides that, before making decisions on major matters concerning the person or property of the child, the parents should hear the child if the child’s mental development, state of health and degree of maturity so permit, and take the child’s reasonable wishes into account as far as possible.
According to Article 96 § 1 of the Family Code, custody of the person of the child consists in the parents raising and directing the child under their parental authority. They are obliged to take care of the physical and spiritual development of the child and prepare him/her properly for work for the good of society according to his/her talents. Pursuant to Article 96(2) of the Family Law Code, parents who do not have full legal capacity shall participate in the day-to-day care and upbringing of the child, unless the guardianship court decides otherwise for the sake of the child.
On the basis of Article 961 c.r.o., persons exercising parental authority and having the care or custody of a minor are prohibited from using corporal punishment.
According to Article 97 § 1 of the Polish Family Law Code, if parental authority is vested in both parents, each of them is obliged and entitled to exercise it. In turn, according to Article 97 § 2 of the Polish Family and Guardianship Code, important matters of the child are decided jointly by the parents; in the absence of an agreement between them, the guardianship court decides.
The parental authority of parents who do not live together is regulated in a special way. Pursuant to Article 107 § 1 of the Family Law Code, if parental authority is vested in both parents living apart, the guardianship court may, for the sake of the child, determine the manner of exercising that authority and maintaining contact with the child. The court shall leave parental responsibility to both parents if they have presented a written agreement on the exercise of parental responsibility and contact with the child that is in the child’s best interests. Siblings should grow up together, unless the welfare of the child requires a different arrangement. However, according to Article 107 § 2 of the Family Law Code, in the absence of the agreement referred to in § 1, the court, taking into account the child’s right to be brought up by both parents, shall decide on the manner of joint exercise of parental authority and maintenance of contact with the child. The court may entrust the exercise of parental authority to one of the parents, limiting the parental authority of the other parent to certain duties and powers in relation to the person of the child, if the child’s welfare so warrants.
The court may rule on the restriction of parental authority in the cases set out in Article 109 of the Civil Code. If the welfare of the child is at risk, the guardianship court will issue appropriate orders that entail a restriction of parental authority. The guardianship court may in particular:
- oblige the parents and the minor to behave in a specified way, in particular to work with a family assistant, implement other forms of work with the family, direct the minor to a day-care centre specified in the regulations on family support and the foster care system, or direct the parents to a centre or a specialist dealing with family therapy, counselling or providing other appropriate assistance to the family, at the same time indicating the manner of controlling the implementation of the orders issued;
- specify what acts cannot be carried out by the parents without the permission of the court, or subject the parents to other restrictions to which the guardian is subject;
- submit the exercise of parental authority to the permanent supervision of a probation officer;
- refer the minor to an organisation or institution established for professional preparation or to another institution which has partial custody of children;
- order the placement of a minor in a foster family, a family foster home or in institutional foster care, or to entrust temporarily the function of a foster family to spouses or a person who does not meet the conditions for foster families with regard to the necessary training specified in the provisions on family support and the foster care system, or to order the placement of a minor in an institution for care and treatment, in a nursing and care institution or in a therapeutic rehabilitation institution.
In addition to limiting parental authority, the court may suspend this authority. According to Article 110 § 1 of the Polish Family Law Code, in the event of a transitory obstacle to the exercise of parental authority, the guardianship court may order its suspension. Pursuant to Article 110 § 2 of the Polish Family and Guardianship Code, the suspension will be revoked when the reason for it ceases to exist.
The termination of parental authority, on the other hand, is possible in the situations set out in Article 111 of the Civil Code. If parental authority cannot be exercised due to a permanent obstacle or if the parents abuse parental authority or grossly neglect their duties towards the child, the guardianship court will deprive the parents of parental authority. The termination of parental authority may also be pronounced against one of the parents. The court may deprive the parents of parental authority if, despite the assistance provided, the reasons for the application of Article 109(2)(5) have not ceased, in particular if the parents are permanently disinterested in the child. If the reason that gave rise to the termination of parental authority ceases, the guardianship court may restore parental authority.
Legal aid includes representation in proceedings for the payment of child support or other relatives, as well as taking action at the pre-court stage (including negotiations and exchange of letters).
Pursuant to Article 128 of the Family Maintenance Code, the obligation to provide maintenance and, where necessary, means of upbringing (maintenance obligation) is imposed on relatives in the direct line and on siblings.
According to Article 129 § 1 of the Polish Family Maintenance Code, the obligation to provide maintenance is imposed on descendants before ascendants and on ascendants before siblings; if there are several descendants or ascendants, it is imposed on those who are closer in degree before those who are further in degree. Pursuant to Article 129 § 2 of the Family Maintenance Code, relatives in the same degree are subject to the maintenance obligation in proportions corresponding to their earning capacity and assets.
A special regulation has been adopted as regards the maintenance obligation between persons in an adoption relationship. Pursuant to Article 131 § 1 of the Family Law Code, if the effects of the adoption consist solely in the creation of a relationship between the adopter and the adopted person, the maintenance obligation towards the adopted person is borne by the adopter before the ascendants and siblings of the adopted person, and the maintenance obligation towards the ascendants and siblings is borne by the adopted person only in last order. Furthermore, according to Article 131 § 2 of the Family Law Code, if one spouse has adopted the child of the other spouse, the adoption does not affect the maintenance obligation between the adoptee and the other spouse and his or her relatives.
The performance of the maintenance obligation takes place in a legally defined order. Pursuant to Article 132 of the Family Maintenance Code, the maintenance obligation of the obligor in further order only arises if there is no person obliged in closer order or if that person is unable to fulfil his or her obligation or if obtaining from him or her in time the necessary means of subsistence for the entitled person is impossible or connected with excessive difficulties.
The maintenance obligation between parents and a child is regulated in Article 133 of the Family Law Code. Parents are obliged to provide maintenance to a child who is not yet able to support himself or herself, unless the income from the child’s property is sufficient to cover the child’s maintenance and upbringing. Outside of the above case, the only person entitled to maintenance is the one who is in want. Parents may refuse to provide maintenance to a child who is of full age if the maintenance is unreasonably burdensome for them or if the child does not strive to achieve self-support.
The maintenance obligation towards siblings may be excluded in certain situations. According to Article 134 of the Family Maintenance Code, in relation to a sibling, the obligor may waive maintenance if it is combined with undue hardship for him or her or his or her immediate family.
The amount of alimony is determined on the basis of strictly defined premises. Pursuant to Article 135 § 1 of the Polish Alimony Code, the scope of alimony depends on the justified needs of the entitled person and on the earning and property capabilities of the obligor. Pursuant to Article 135 § 2 of the Polish Family Income Code, the performance of the maintenance obligation towards a child who is not yet capable of self-support or towards a disabled person may consist wholly or partly in personal endeavours for the maintenance or upbringing of the entitled person; in such a case, the maintenance obligation of the other obligors consists in covering, in whole or in part, the costs of maintenance or upbringing of the entitled person.
Pursuant to Article 135 § 3 of the Family Maintenance Code, the scope of maintenance is not affected:
- on Assistance to Persons Entitled to Alimony (Journal of Laws of 2023, item 1993), to be returned by the person obliged to pay alimony;
- benefits, expenses and other financial resources related to the placement of a child in foster care, as referred to in the provisions on family support and the foster care system;
- upbringing benefit referred to in the Act of 11 February 2016 on state aid in upbringing of children (Journal of Laws of 2023, item 810 and 1565);
- family benefits referred to in the Act of 28 November 2003 on family benefits (Journal of Laws of 2023, item 390, 658 and 1429);
- the parental supplementary benefit referred to in the Act of 31 January 2019 on parental supplementary benefit (Journal of Laws of 2022, item 1051).
The relinquishment of property rights does not affect the scope of the maintenance obligation. Pursuant to Article 136 of the Family Maintenance Code, if, within the last three years prior to the judicial recovery of maintenance, a person who was already obliged to provide maintenance has, without a valid reason, relinquished a property right or otherwise allowed it to lapse, or if he or she has given up employment or changed it to a less profitable one, the resulting change shall not be taken into account when determining the extent of maintenance.
The legislator has established a limitation period for maintenance claims. Pursuant to Article 137 § 1 of the Family Maintenance Code, maintenance claims become time-barred after three years. Pursuant to Article 137 § 2 of the Polish Family Maintenance Code, the court takes into account the unsatisfied needs of an entitled person from a period prior to the filing of a maintenance claim by awarding an appropriate sum of money. In justified cases, the court may divide the awarded benefit into instalments.
Decisions that are made in maintenance cases can be amended. According to Article 138 of the Family Maintenance Code, in the event of a change in relations, an amendment of the decision or agreement on the maintenance obligation may be requested.
Pursuant to Article 139 of the Family Maintenance Code, the maintenance obligation does not pass to the heirs of the obligor.
The legislator provides for the possibility of recovering the maintenance payments made from the person who was obliged under these payments in the first place or for whom they were paid. Pursuant to Article 140 § 1 of the Family Maintenance Code, a person who provides maintenance or upbringing to another without being obliged to do so or who is obliged to do so for the reason that it would be impossible or connected with excessive difficulties for the entitled person to obtain timely maintenance from a person obliged in a closer or the same order, may claim recourse from the person who should have provided such maintenance. A right of recourse shall be time-barred after a period of three years.
The maintenance obligation also applies to affinities. Pursuant to Article 144 § 1 of the Family Law Code, a child may claim maintenance from his mother’s husband, who is not his father, if this corresponds to the principles of social co-existence. The same entitlement is available to a child with respect to his father’s wife, who is not his mother. According to Article 144 § 2 of the Family Law Code, the husband of the child’s mother, who is not the child’s father, may demand maintenance from the child if he has contributed to the upbringing and maintenance of the child and the demand corresponds to the principles of social co-existence. The wife of the child’s father, who is not the child’s mother, has the same entitlement. Pursuant to Article 144 § 3 of the Family Law Code, the provisions on the obligation of maintenance between relatives apply mutatis mutandis to the obligation to provide the benefits provided for in the preceding paragraphs.
Exceptionally, the legislator provides for the possibility to exclude the alimony obligation. This is because Article 1441 k.r.o. stipulates that the obliged person may evade the fulfilment of the maintenance obligation towards the entitled person if the demand for maintenance is contrary to the principles of social co-existence. This does not apply to the obligation of parents towards their minor child.
Legal assistance includes representation in proceedings for authorisation of acts beyond the ordinary administration of the child’s property, for the compilation of an inventory of the child’s property, for compensation for damage caused by the administration of the child’s property in a manner prejudicial to the child’s interests or having an adverse effect on the child’s property and for the appointment of a guardian of the child’s property, as well as taking the relevant actions at the pre-court stage (including negotiations and exchange of letters).
Pursuant to Article 101 § 1 of the Family Law Code, parents are obliged to exercise due care in the management of the property of a child under their parental authority. According to Article 101 § 2 of the Polish Family and Guardianship Code, however, the management exercised by the parents does not include the child’s earnings or objects given to him or her for free use. Pursuant to Article 101 § 3 of the Polish Family and Guardianship Code, parents may not, without the authorisation of the guardianship court or, in the cases indicated in Article 6401 of the Act of 17 November 1964. – Code of Civil Procedure (Journal of Laws of 2023, item 1550, 1429, 1606, 1615, 1667 and 1860), the inheritance court to perform actions exceeding the scope of ordinary management or to consent to the child performing such actions. For the purpose of streamlining inheritance proceedings, Article 101 § 4 of the Family Law Code was also introduced. Pursuant to this provision, if a child is appointed to the inheritance as a result of a prior rejection of the inheritance by a parent, an action consisting in the rejection of the inheritance on behalf of the child by a parent who has parental authority in this respect, when performed with the consent of the other parent who also has parental authority in this respect, or when performed jointly, does not require the authorisation of the guardianship court or, in cases indicated in Article 6401 of the Act of 17 November 1964. – Code of Civil Procedure, the inheritance court – if the inheritance is rejected by other descendants of the parents of that child. In the absence of an agreement of the parents, the provision of § 3 shall apply.
It is possible to limit the scope of the administration of the child’s property. According to Article 102 of the Family Law Code, it may be stipulated in the donation agreement or in the will that the child’s property under the donation or will shall not be administered by the parents. In such a case, if the donor or testator has not appointed an administrator, the administrator shall be the guardian appointed by the guardianship court.
Pursuant to Article 103 of the Family Law Code, the pure income from the child’s property should be primarily turned to the maintenance and upbringing of the child and his or her siblings who grow up with him or her, with the surplus going to other legitimate needs of the family.
In addition to authorising acts that go beyond the ordinary management of the child’s property, the court may order the preparation of an inventory of the child’s property and submit notifications to the court of major changes in the state of the child’s property, as well as determine the value of dispositions that may be made without the authorisation of the guardianship court. Pursuant to Article 104 § 1 of the Civil Code, the guardianship court may order the parents to draw up an inventory of the child’s property and submit it to the court and to notify the court of more important changes in the state of that property, in particular of the child’s acquisition of property items of significant value. Pursuant to Article 104(2) of the Civil Code, the guardianship court may, in justified cases, determine the value of dispositions concerning movable property, money and securities which the child or the parents may make each year without the permission of the guardianship court, subject to Article 103.
The legislator has regulated the obligations of the parents after the termination of the administration of the child’s property. Article 105 of the Civil Code stipulates that after the termination of the administration, the parents are obliged to hand over to the child or his/her legal representative the child’s property managed by them. At the request of the child or the child’s legal representative made before the expiry of one year after the termination of the administration, the parents are obliged to submit an account of the administration. However, this demand may not relate to the income from the property collected during the exercise of parental authority.
Legal aid includes representation in adoption and adoption dissolution proceedings.
The legislator defines the general prerequisites and principles of adoption. Pursuant to Article 114 § 1 of the Civil Code, a minor may be adopted only for his or her benefit. The age requirement should be met on the date of filing the application for adoption pursuant to Article 114 § 2 of the Civil Code. It is also required that the adopter meets certain criteria. According to Article 1141 § 1 of the Civil Code, a person with full legal capacity may adopt if his/her personal qualifications justify the belief that he/she will duly fulfil the duties of an adopter and he/she has a qualifying opinion and a certificate of completion of a training course organised by an adoption centre referred to in the regulations on family support and the foster care system, unless this obligation does not apply to him/her. According to Article 1141 § 2 of the Civil Code, there should be an adequate age difference between the adopter and the adopted person. Restrictions have been introduced on the permissibility of foreign adoption. Indeed, Article 1142 § 1 of the Polish Civil Code provides that an adoption which will result in a change of the adopted person’s previous place of residence in the Republic of Poland to a place of residence in another country may take place if only in this way a suitable substitute family environment can be ensured for the adopted person. Pursuant to Article 1142 § 2 of the Civil Code, however, this provision does not apply if there is a relationship of kinship or affinity between the adopter and the adopted person, or if the adopter has already adopted the adopted person’s sister or brother.
The legislator introduces the principle that spouses who are to act as adopters should cooperate with each other in the adoption decision. According to Article 115 § 1 of the Civil Code, only spouses may adopt jointly. Pursuant to Article 115 § 2 of the Civil Code, an adoption has the effects of a joint adoption also if the person adopted by one spouse is subsequently adopted by the other spouse. According to Article 115 § 3 of the Civil Code, the guardianship court may, at the request of the adopter, rule that the adoption has the effects of a joint adoption if the adopter was the spouse of the person who previously adopted the child and the marriage ceased through the death of the spouse who had already adopted. As a general rule, the spouses should be in agreement on the decision to adopt. Indeed, Article 116 of the Family Law Code provides that adoption by one spouse cannot take place without the consent of the other spouse, unless that spouse lacks legal capacity or there are insurmountable obstacles to communication.
Articles 117 to 119 of the Civil Code describe the most important procedural requirements for a judgment on adoption. Adoption cannot be effected by extrajudicial means. Adoption is effected by a judgment of the guardianship court issued at the request of the adopter. The judgment, as a rule, cannot be made after the death of the adopter or the person to be adopted. After the death of the person to be adopted, the adoption can never be adjudicated. After the death of the adopter, a ruling on adoption may exceptionally be made if the adoption has been requested by both spouses, one of them dies after the commencement of the proceedings and the other spouse sustains the request for adoption jointly by the spouses, and if for a long time before the commencement of the proceedings the adoptee has been in the custody of the applicants or only of the deceased applicant and a bond as between the parties as between parents and child has been established. A guardian appointed by the guardianship court shall take the place of the deceased in the proceedings. Adoption pronounced after the death of the spouse who was to become the adopter has the same effects as that pronounced before the death of the spouse. The adoption shall not preclude readoption after the death of the adopter.
In addition to the above requirements, the legislator poses two more concerning consent to adoption, which are set out in Articles 118 and 119 of the Civil Code. The consent of an adoptee who has reached the age of thirteen is required for adoption. The guardianship court should hear the adoptee who has not reached the age of thirteen if he or she can comprehend the meaning of the adoption. The guardianship court may, exceptionally, declare adoption without requesting the consent of the adoptee or without hearing the adoptee if the adoptee is incapable of giving consent or if it is apparent from an assessment of the relationship between the adopter and the adoptee that the adoptee considers himself to be a child of the adopter and that it would be contrary to the welfare of the adoptee to request consent or to hear him. The consent of the adoptee’s parents is also needed to grant the adoption request, unless they have been deprived of parental authority or are unknown or there are insurmountable obstacles to communication with them. The guardianship court may, due to special circumstances, pronounce the adoption despite the absence of the consent of the parents whose legal capacity is limited, if the refusal to consent to the adoption is manifestly contrary to the welfare of the child.
There are three types of adoption: full, partial and total.
The prerequisites for total (inseparable) adoption are set out in Article 1191 of the Civil Code. Parents may, before the guardianship court, consent to the future adoption of their child without naming an adopter. Parents who have given such consent have no parental authority and no right of contact with the child. They may revoke this consent by declaration before the guardianship court, but no later than before the initiation of the adoption case. The provisions on adoption with the consent of the parents without designation of the adopter shall apply mutatis mutandis if one parent has given such consent and the consent of the other parent is not necessary for the adoption. This provision shall not apply if agreement with the other parent encounters insurmountable obstacles. The provisions on adoption with parental consent without designation of the adopter shall also apply mutatis mutandis if the parents of the adoptee are unknown or deceased, if the guardianship court so decides in the adoption judgment.
Where the adopted person’s parents have consented before the guardianship court to his or her adoption without naming the adopter, it is not permissible to establish the origin of the adopted person by acknowledgement of paternity, judicial determination or denial of his or her origin, or determination of the ineffectiveness of the acknowledgement of paternity.
Articles 121 to 123 of the Civil Code, on the other hand, regulate full adoption. Article 121 of the Civil Code stipulates that through adoption, a relationship is created between the adopter and the adopted such as that between parents and children. The adoptee acquires the rights and obligations arising from kinship in relation to the adopter’s relatives. The rights and duties of the adoptee arising from kinship towards his relatives shall cease, as shall the rights and duties of these relatives towards him. The effects of the adoption shall extend to the adopted person’s descendants.
Full adoption is revealed in the name and surname of the adopted person. Pursuant to Article 122 § 1 of the Civil Code, the adopted person receives the surname of the adopter, and if he or she has been adopted by spouses jointly or if one spouse has adopted the child of the other spouse, the surname which the children born of that marriage bear or would bear. Pursuant to Article 122 § 2 of the Civil Code, at the request of the person to be adopted and with the consent of the adopter, the guardianship court shall decide in the adoption judgment that the adopted person shall bear a surname composed of his or her former surname and the adopter’s surname. If either the adopter or the adopted person bears a compound surname, the guardianship court shall decide which part of that surname will become part of the adopted person’s surname. This provision shall not apply if a new birth certificate is drawn up for the adopted person with the entry of the adopters as his or her parents. Pursuant to Article 122 § 3 of the Civil Code, at the request of the adopter, the guardianship court may change the adoptee’s forename or forenames in the adoption judgment. If the adoptee is at least thirteen years of age, this may be done only with his or her consent. The provision of Article 118 § 2 shall apply mutatis mutandis.
Further effects of full adoption are set out in Article 123 of the Civil Code. By adoption, the previous parental authority or custody of the adopted person ceases. If one spouse has adopted the child of the other spouse, parental authority is vested in both spouses jointly.
In contrast, incomplete adoption is regulated in Article 124 of the Civil Code. At the request of the adopter and with the consent of the persons whose consent is necessary for the adoption, the guardianship court shall rule that the effects of the adoption shall consist solely in the creation of a relationship between the adopter and the adopted. However, also in this case, the effects of the adoption shall extend to the adopted person’s descendants. It is not permissible to limit the effects of the adoption in the event that the parents of the adopted person have consented before the guardianship court to the adoption of the child without naming the adopter. At the request of the adopter and with the consent of the persons whose consent is necessary for the adoption, the guardianship court may, during the minority of the adopted person, change the adoption decreed pursuant to § 1 into an adoption whose effects are subject to the provisions of Articles 121 to 123.
In certain situations it is possible to terminate the adoption. Pursuant to Article 125 § 1 of the Polish Civil Code, for valid reasons, both the adoptee and the adopter may request that the adoption relationship be terminated by the court. According to Article 127 of the Civil Code, an action for the dissolution of the adoption may also be brought by the public prosecutor. The termination of the adoption relationship is not permissible if the welfare of the minor child would suffer as a result. When pronouncing the dissolution of the adoption relationship, the court may, according to the circumstances, uphold the maintenance obligations resulting from it. Article 125 § 2 of the Civil Code provides that after the death of the adoptee or adopter, termination of the adoption relationship is not permissible, unless the adopter dies after the initiation of the case for termination of the adoption relationship. In that case, a court-appointed guardian takes the place of the adoptee in the proceedings.
However, a plenary adoption cannot be dissolved.
Pursuant to Article 126 § 1 of the Civil Code, as soon as the adoption relationship is dissolved, its effects cease. If the termination occurs after the death of the adopter, the effects of the adoption are deemed to have ceased upon the death of the adopter. According to Article 126 § 2 of the Civil Code, the adoptee retains the surname acquired by the adoption and the name or names received in connection with the adoption. However, for important reasons, the court, at the request of the adoptee or the adopter, may decide in the judgment on the termination of the adoption relationship that the adoptee shall return to the surname he or she bore before the adoption was pronounced. At the request of the adoptee, the court shall rule that the adoptee return to the name or names previously borne.
Legal aid includes advice and representation in proceedings for the appointment or dismissal of a guardian, curator or placement of a minor in institutional foster care.
Pursuant to Article 145 § 1 of the Civil Code, guardianship shall be established for a minor in the cases provided for in Title II of this Code. According to Article 145 § 2 of the Code of Civil Procedure, guardianship shall be established by the guardianship court as soon as it becomes aware that there is a legal reason for it.
Pursuant to Article 146 of the Family Law Code, custody shall be exercised by a guardian. Joint custody of the child may be entrusted by the court only to the spouses. Further requirements for a guardian are established by Article 148 of the Family Law Code. Firstly, a person who does not have full legal capacity or has been deprived of public rights cannot be appointed guardian. Secondly, a person who has been deprived of parental authority or who has been convicted of an offence against sexual freedom or morality or an intentional offence involving violence against the person or an offence committed to the detriment of or in cooperation with a minor cannot be appointed a guardian of the minor either, or a person who has been ordered to refrain from activities related to the upbringing, treatment, education or care of minors, or an obligation to refrain from being in certain environments or places, an obligation to refrain from contacting certain persons or an obligation to refrain from leaving a certain place of residence without the court’s consent. Thirdly, a guardian cannot be appointed for whom there is a likelihood that he or she will not properly fulfil the duties of a guardian.
Pursuant to Article 147 of the Civil Code, if the welfare of the person under guardianship so requires, the guardianship court shall make the necessary orders for the protection of his or her person or property until the guardian takes custody; in particular, the guardianship court may appoint a guardian for this purpose.
According to Article 151 of the Civil Code, the guardianship court may appoint a single guardian for several persons if there is no conflict between their interests. The guardianship of siblings should, as far as possible, be entrusted to one person.
Pursuant to Article 152 of the Civil Code, anyone whom the guardianship court appoints as guardian is obliged to take custody. For important reasons, the guardianship court may exempt from this obligation.
Pursuant to Article 153 of the Civil Code, the assumption of guardianship is effected by making a promise before the guardianship court. The guardian should assume his or her duties immediately.
The regulation of the appointment of a guardian, on the other hand, is contained in special provisions. Pursuant to Article 178 § 1 of the Polish Family and Guardianship Code, a guardian is appointed in cases provided for by law. In accordance with Article 178 § 2 of the Polish Family and Guardianship Code, to the extent not regulated by the provisions which provide for the appointment of a guardian, the provisions on guardianship shall apply mutatis mutandis to guardianship, subject to the provisions below.
Legal assistance includes advice, opinions and representation in the act of concluding a matrimonial property contract (prenup).
Article 47 of the Civil Code provides that:
- 1. The spouses may, by an agreement concluded in the form of a notarial deed, extend or limit the statutory community of property or establish a separation of property or a separation of property with equalization of the acquisitions (property agreement). Such an agreement may precede the marriage.
- 2. A matrimonial property contract may be modified or dissolved. If it is dissolved during the marriage, a statutory community of property is created between the spouses, unless the parties have agreed otherwise.
However, it should be borne in mind that, pursuant to Article 471 of the Civil Code, a spouse may rely on a matrimonial property contract against other persons when its conclusion and nature were known to those persons.
