To Örebro University

This paper aims to analyse the international consequences of private divorces, which are available in several European countries. Particular attention is drawn to the amendments suggested by the Lithuanian legislator, which intend to transfer certain functions of the courts to notaries. In particular, Lithuanian notaries would have competence in the dissolution of marriage provided there is mutual consent between spouses. The authors discuss how private divorces are regulated in different countries, whether the amendments suggested by the Lithuanian legislator would introduce a “private divorce” into Lithuanian law, and what the implications of private divorce are in private international law. In particular, the scope of application of the Brussels II bis Regulation is addressed. As yet, there is no consensus as to whether the Regulation applies to private divorces. However, the analysis in this paper shows that it would be beneficial to include such divorces in the above-mentioned Regulation. This would ensure a greater legal certainty for international couples. 

The uneven speed of family law developments results in the phenomenon of ‘limping family relationships’, which are family relationships legally recognised in one State but not in another. One example of this would be that of a same-sex couple who had validly married in a State with gender-neutral marriage laws. If the couple then moves temporarily or permanently to Poland, will their marriage be recognised, considering the latest landmark decisions of the supranational European courts on cross-border recognition of same-sex formalised relationships? The Private International Law Act of Poland provides that the law of nationality should apply to determine the substantial validity of a marriage. However, even if both of the spouses are nationals of a State that allows a gender-neutral marriage, the issue of incompatibility with the heteronormative concept of marriage in the Constitution of Poland arises. The paper analyses private international law in Poland and the relevant practice in light of the new European human rights stan-dards.

The findings of this paper are twofold. On the one hand, under Polish law, Polish nationals are expected not to enter into same-sex marriages, wherever they live. On the other, several developments regarding European human rights standards have softened the traditional approach to same-sex marriages and same-sex parenthood in Poland, and opened some room for cross-border recognition of family status in Poland.