The marital capability is determined by the right of the country of origin of each of the parties at the moment of contracting the marriage (cf. Article 48 of Private International Law ustawy Prawo międzynarodowe prywatne), whereas the form in which the marriage is contracted is subject to the law of the country where the marriage is celebrated, regardless the identity of the bride and of the groom.
Therefore, the form of marriage contracted in Poland is subject to Polish law, including in particular the provisions of the Family and Guardianship Code (Kodeksu rodzinnego i opiekuńczego) and the Vital Records Act (ustawy Prawo o aktach stanu cywilnego), as well as to the numerous international agreements by which Poland is bound.
Pursuant to Polish law, a marriage is contracted when a man and a woman are simultaneously present before the Registrar General and make a declaration regarding entering into marriage. However, entering into marriage with a foreigner requires performing a number of acts. Their nature may depend both on the foreigner’s nationality and on their marital status.
From the foreigner’s perspective, the provisions of Article 79 of the Vital Records Act (ustawy Prawo o aktach stanu cywilnego) are of particular relevance. They concern the foreigner providing the Registrar General with a document confirming that in accordance with the relevant law, they are capable of into marriage – or a court exempting the foreigner from the obligation to submit such document.
Regulations regarding the recognition of decisions of foreign courts and other authorities in proceedings concerning non-property rights of foreign citizens, have been included in Article 1145 and the following of the Act of 17 November 1964 – the Polish Code of Civil Procedure (ustawy z dnia 17 listopada 1964 r. - Kodeks postępowania cywilnego).
The most important formal prerequisites for contracting marriage in Poland include:
- prenuptial documents required in order to contract marriage (cf. Article 3 of the Family and Guardianship Code (Kodeksu rodzinnego i opiekuńczego) and Article 79 of the Vital Records Act (ustawy Prawo o aktach stanu cywilnego), including:
- the declaration made by the foreign national (cf. Article 79 section 1 pt. 1 of the Vital Records Act (ustawy Prawo o aktach stanu cywilnego), copy of the foreigner’s birth certificate and if they were previously married – copy of the marriage certificate including an endorsement regarding the dissolution, cancellation or voiding of the marriage, or a copy of the marriage certificate together with a document confirming its dissolution or cancellation, or a document confirming the voiding of the marriage if the data required in order to draw up the marriage certificate could not be established on the basis of other documents submitted (cf. Article 79 section 1 pt. 2 of the Vital Records Act (ustawy Prawo o aktach stanu cywilnego),
- a document stating that in accordance with the relevant law, the foreigner may enter into marriage, unless under Private International Law ustawy Prawo międzynarodowe prywatne), their capability to enter into marriage is assessed on the basis of the Polish law (cf. Article 79 section 1 pt. 3 of the Vital Records Act (ustawy Prawo o aktach stanu cywilnego),
- presence of two adult witnesses (cf. Article 7 § 1, Article 8 § 2 of the Code),
- public statement made by the fiancés before the entity entitled to officiate at the wedding (cf. Article 7 § 1 and 3, Article 8 of the Code),
- declaration of entering into matrimony submitted by the persons contracting marriage, repeated after the Registrar General or read aloud (cf. Article 7 §3 of the Code),
- Being aware of the rights and responsibilities following from contracting a marriage, I solemnly affirm that I hereby enter into matrimony with (the name and surname of the other person entering into marriage) and I promise to do all so that our marriage remains concordant, happy and lasting.”the
- Registrar General declaring that the marriage was contracted (cf. Article 7 § 4 of the Code)
In case of a Concordat wedding:
- Certificate provided to persons intending to enter into marriage under the internal laws of the church or of another religious association, in the presence of a minister (the Registrar General issues a certificate confirming the lack of impediments to the marriage, as well as the content and the date of declarations regarding the future surnames of the spouses and of their children, which were made before them) (cf. Article 41 of the Family and Guardianship Code (Kodeksu rodzinnego i opiekuńczego),
- Declaration issued by a clergyman – if the marriage is contracted before one (cf. Article 41 of the Family and Guardianship Code (Kodeksu rodzinnego i opiekuńczego),
- Religious ceremony in case of a denominational wedding.
It needs to be underlined that a foreigner entering into marriage with a Polish citizen is not granted Polish citizenship by default, and that the marriage gives them a basis to seek a temporary residence permit (under Article 158 of the Act of 12 December 2013 on Foreigners (art. 158 ustawy z 12 grudnia 2013 r. ) and after 3 years’ residence in Poland on the basis of residence cards thus obtained, they may apply for permanent residence. In certain circumstances, family members of foreigners are entitled to apply for a residence permit on the basis of their marriage.
A foreigner may seek Polish citizenship if they have resided in Poland without interruption for at least 2 years under a permanent residence permit, a long-term resident’s EU residence permit or a right of permanent residence and they have been married to a Polish citizen for at least 3 years (cf. Article 30 sec. 1 of the Act of 2 April 2009 on Polish citizenship (art. 30 ust. 1 ustawy z dnia 2 kwietnia 2009 r. o obywatelstwie polskim).
Ways of contracting marriage in Poland
Polish law provides for two alternative (equivalent) ways to enter into marriage and the foreigners entering into marriage in Poland are also entitled to choose one of them. They are: civil wedding and concordat wedding.
Civil wedding –it has legal effects only in the Polish legal domain. It is contracted before the Registrar General by two simultaneously present persons of opposite sex (cf. Article 41 of the Family and Guardianship Code (Kodeksu rodzinnego i opiekuńczego). Persons intending to enter into marriage may choose any civil registry office (no zoning applies), they usually choose an office competent for the place of residence of the bride or of the groom. Civil wedding is rather quick and easy to arrange. Persons wishing to contract marriage as quickly as possible should check the dates available at civil registry offices in smaller towns. It needs to be borne in mind, however, that the so-called monthly waiting period applies – as a rule, one month must elapse between the date of submission of the relevant documents to the Registrar General and the date of the wedding. Furthermore, in many civil registry offices, marriages are not contracted every day and in some – not even on every weekend. It is therefore advisable to book the desired date in advance
Concordat wedding – marriage contracted in the presence of a clergyman, by two persons of opposite sex, subject to the internal law of a church or of another religious association, which also has legal effects. According to Article 10 section 1 of the Concordat between the Holy See and the Republic of Poland (Konkordatu zawartego między Stolicą Apostolską a Polską) – contracting a denominational marriage has the same effect as contracting marriage under the Polish law, provided that the following prerequisites a