Rozdzielność majątkowa według prawa polskiego a orzeczenie zagraniczne w sprawie rodzinnej : glosa do wyroku SN z dnia 28 maja 2014 r., I CSK 330/13

Abstract

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.