Abstrakt: | According to the main theses arising out of the statement of reasons of the
Supreme Court Judgement of 28th May, 2014, I CSK 330/13: 1. The separation of property
as provided in art. 54 § 1 of Polish Family and Guardianship Code (PFGC) may result
from a foreign court order, if this order corresponds to the judgment on legal separation
as known in the Polish law. 2. The ordinance of the French court authorizing the spouses
to live separately, issued as part of divorce proceedings cannot be qualified as the equivalent
of the judgment on legal separation known to the Polish law.
Both theses should be approved. However, the first one must be supplemented with
the fact that the effect provided in art. 54 § 1 PFGC may only be attributed to a foreign
judgement, when the law applicable to the patrimonial effects of marriage in the moment
of such judgement is the Polish one. Furthermore, the above mentioned effect can occur
as a consequence of a foreign judgment only if this judgment is recognised in Poland.
In order to check whether the foreign judgment concerned in casu corresponds to the
Polish judgment on legal separation, the terms equivalence evaluation must be carried
out. In the case concerned, it was necessary to carry out such an evaluation with reference
to the French ordinance authorizing the spouses to live separately [“l’ordonnance
de résidence séparée”].
In the absence of sufficient similarity between the analysed ordinance and the Polish
judgment on legal separation, the provision of art. 54 § 1 PFGC cannot apply with regard
to the former. Therefore, in spite of some objections to the reasoning of the Supreme
Court, we should agree with the final settlement made in the case. |