One family, one address: The place of residence under the interwar law of Poland | In Principle

In a recent case handled by our reprivatisation practice, it turned out that before clearing title to the real estate in question, inheritance proceedings first had to be conducted for one of the former co-owners, who acquired his share in the property in 1934. All we knew of him was what was stated in the notarial deed: his name and home address at the time of acquisition.

Nothing more could be determined across all of the intervening post-war decades—the archival records had been lost. Only the gradual digitalisation of Polish and foreign archival resources and library collections allowed the data concerning the family members and their wartime fate to be recovered. And their fate was tragic, as in the case of most families of Jewish origin who were living in Warsaw before the Second World War.

To clarify the legal status of such property formerly covered by the land and mortgage register, today it is necessary to determine who is the heir of the owner entered in the register.

Then, to enter the heir in the land and mortgage register, it is necessary to submit a document confirming the inheritance: a court order confirming the inheritance or a deed testifying to the inheritance. To obtain an order confirming acquisition of the estate, it necessary to submit the appropriate documents from the civil register, first and foremost a death certificate.

Under the Warsaw realities, it can be very difficult to obtain such documents, as pre-war birth and death certificates have largely not survived. But if the bare minimum of information can be found, and the identity of the person in question can be ascertained, it then usually becomes necessary to conduct additional civil proceedings to draw up a birth certificate if it was not made before (Art. 40(2) of the Civil Registry Records Act), or a judicial confirmation of the death of the person (Art. 526 §§1–2 of the Civil Procedure Code). In the case in question, this meant confirming the death not of just one person, but of an entire family.

Under Civil Procedure Code Art. 526 §2, a case seeking confirmation of death is considered by the court for the decedent’s last place of residence, or if that place cannot be determined, then (via Art. 508 §1), the court for the Capital City of Warsaw.

In this case, we managed to confirm the names of all members of the family, find some of the birth certificates, and obtain confirmation of their deaths in the form of testimony from Yad Vashem (the Holocaust Martyrs’ and Heroes’ Remembrance Authority) in Jerusalem. But the certificates alone were not sufficient—it was also necessary to apply to the court for confirmation, based on the collected archival documents, that all members of the family perished during the German occupation.

It was clear from the documents that the head of the family (the father) resided in the Warsaw city centre, and thus the case should be heard by the court for that district, Warszawa-Śródmieście. But that court found that it was proper only with respect to the father. With respect to the wife and children, the court found that their last place of residence had not been shown, and thus the case should be bifurcated, with the proceedings concerning the wife and children referred to the court for the Capital City of Warsaw. In practice, this would seriously complicate the case.

Even ignoring the issue of judicial economy, the court’s position was founded on an erroneous interpretation of the procedural regulations. The court assumed that it was necessary to document separately the place of residence of each of the deceased family members. However, as we discuss below, under the law in force during the relevant period (1920–1940), the system for registering the population at the time, as well as the standards of the Jewish legal tradition, the consistent rule was that only the husband and father was entered in public registers as the head of the family and principal resident, while the place of residence of his wife and children was deemed by operation of law to be the same as the place of residence of the husband and father.

Why the wife’s legal situation depended on the husband’s—the law in force in 1920–1940

When Poland regained its independence in 1918, the Polish lands were still covered by three different systems of civil law, inherited from the three powers which had partitioned Poland prior to the First World War:

• The Civil Code of the Kingdom of Poland of 1825 (based on the Napoleonic Code) and the Code of Laws of the Russian Empire (Svod Zakonov) in the territories of the former Russian partition
• The Austrian General Civil Code (ABGB) of 1811 in Galicia
• The German Civil Code (BGB) of 1896 in the territory of the former Prussian partition.

The Obligations Code of 1934 consolidated part of Polish private law, but in personal and family cases differences between the formerly partitioned regions remained in place for the entire period in question.[1]

Despite the differences between these systems, they all shared one rule: the husband was the head of the family—its legal representative and the sole person authorised to conduct legal transactions affecting the family as a whole, e.g. from renting an apartment down to installing a telephone. The wife’s capacity to act on her own in the legal sphere was severely limited, to varying degrees depending on the partition, and sometimes excluded altogether.[2]

One of the furthest-reaching consequences of this model was the rule that a married couple had to have the same place of residence. Art. 108 et seq. of the Civil Code of the Kingdom of Poland required the wife to live together with her husband, and by operation of law her place was residence was deemed to be the same as her husband’s, unless otherwise provided by specific regulations or a judicial ruling. A comparable rule was provided by §94 ABGB and §1354 BGB, imposing on the wife the duty to reside at the place designated by the husband as the family seat.

This rule was not just a declaration, but directly carried over to the manner in which civil, tax and administrative registers were maintained. The Women’s Rights Act of 1921, in force in the former Kingdom of Poland, recognised a wife’s right to reside separately from her husband in certain strictly defined situations.[3] In the lands covered by Austrian and Prussian law, similar changes were made even later, and in Galicia the patriarchal model remained the norm in practice throughout the period in question.

Because the wife’s place of residence was deemed to be the same as the husband’s by operation of law, showing where the father of the family resided is also tantamount to showing where his wife resided. The court cannot demand separate proof of a circumstance directly following from the law in force at that time.

Indeed, this is confirmed by the Women’s Rights Act of 1921. In awarding wives from the territory of the former Kingdom of Poland “full legal capacity,” the parliament expressly recognised that previously married women did not have this capacity. The act gave “both unmarried and married women full legal capacity, and thus any adult woman can be a witness to official acts such as weddings, baptisms and wills, and conclude notarial deeds, which could previously be done only by men.”[4]

In practice this meant that the wife could not conclude a lease for a residence on her own, as it was an agreement of long duration and involving property rights. Only the husband, as the family’s legal representative, could be a party to such contracts. In the Prussian system the husband could even terminate an employment contract entered into by the wife without his knowledge or consent. Likewise, tax obligations rested on the husband as the administrator of the family’s assets. It was he, not she, who was entered in tax registers, commercial registers, address directories and telephone directories.[5]

Children have no voice—unconditional paternal authority (puissance paternelle) under secular law

The Napoleonic Code in force in the lands of the former Kingdom of Poland was grounded in a patriarchal concept of the family—both the wife and the children were subject to the husband’s authority. A characteristic shared by the wife and children was a total lack of autonomous legal agency. A married woman was, as the code expressly stated, “eternally a minor,” that is, lacking the capacity to make legal transactions without the consent of a man (father, husband or male relative).

The right to exercise paternal authority (puissance paternelle) was vested solely in the father, and in a very broad scope covering both the person and property of the child. The child remained under this authority until reaching the age of majority or emancipation, and could not leave the father’s house without his consent, unless the child voluntarily joined the armed forces after age 18. As long as the marriage lasted, the personal property of minor children, i.e. below age 21, was managed by the father.

In the chapter on paternal authority, the Napoleonic Code provided that a child of any age must display “honour and respect” for their father and mother. In practice, and under the interpretation in the legal literature of the time, as long as the marriage lasted this obligation was owed primarily to the father.[6]

Meanwhile, Art. 61 of the Allgemeines Landrecht of 1794, in force in the western Polish lands, provided: “Children owe respect and obedience to both parents, but in particular they are subject to the father’s authority.” In this respect, Prussian law regarded children as wholly lacking the capacity to enter legal transactions independently: the age of majority was 24, and children’s earnings were formally vested in the parents, and in practice were managed by the father.[7]

The ABGB, in force in Galician lands, defined marriage as the “source of family relations,” and expressly provided: “The husband is the head of the family. As such, he is vested more particularly with the right to direct the household.” If children ran away from home, the code entitled the parents to seek them out and return them home by force. The age of majority in Galician lands was 20 (§21 ABGB).[8]

It follows from the foregoing that minor children were entirely lacking in legal capacity, and their sole statutory representative and administrator of their property was the father. They could not enter into contracts or appear in public registers as autonomous individuals. Unmarried adult children living with their father also did not have a separate entry in the system for registration of the population. As explained below, a separate family card was not established until a child left the father’s house and established his own household.

How the population records at the time worked—family cards and household registers

The Regulation of the President of Poland of 16 March 1928 on Registration and Control of Movement of the Population and the Regulation of the Minister of Internal Affairs of 16 October 1930 on Residential Registration and Population Records introduced a uniform system of records based on “family cards.” Such a card was established for the head of the family, i.e. the father or husband; the other members of the family, i.e. the wife and children, were entered on the same card, without any separate record.

The following were entered in the family card: first and last names of the principal resident (the father) and his parents’ first names; the wife’s first name and maiden name; the children’s first names and dates of birth; and—particularly relevant here—the entry for “profession,” where in the case of women not working outside the home the phrase used was “with her husband” (przy mężu). This was not an incidental linguistic custom, but an official registration category which expressly confirmed that a married woman is assigned to her husband’s card and address.

A separate family card was established when a family member—for example an adult child—left the family home and established their own separate household. So, as long as the children, even adult and unmarried, lived with their father and had not started their own family, they could not be registered separately.

In the case in question, the court found that the documents enclosed with the application, stating only the place of residence of the head of the family, but also mentioning the wife and children, was not sufficient to determine the address of the wife and children. This was an erroneous interpretation. Because the registration system expressly included the wife and children in a single card maintained under the address of the father as the head of the family, and the external public registers—tax register, commercial register, address directory and telephone directory—mentioned only the father, this a direct and unavoidable consequence of the administrative regime in force at that time. It is not evidence that the rest of the family lived elsewhere.

Special situation of Jewish families—dual system of restrictions arising under religious law (halakha)

In the case of a Jewish family, the argument that the address of the whole family is equated with the address of the head of the family is even stronger. A Jewish woman was not only subject to the restrictions of secular law outlined above, but also—and in everyday life first and foremost—subject to standards of religious law, halakha (a body of Jewish law governing such issues as marriage, property, and the position of women in the family). In interwar Poland, rabbinical courts (beth din) were legally functioning institutions, recognised by the Polish state in marital, family and commercial matters within the Jewish community.[9] For an observant Jewish family, halakha law was de facto a binding system of norms, often more important in daily life than state law was.

A good example of the economic domination of the husband in a Jewish marriage is the ketubah, a legally binding marriage contract imposing duties on the husband in relation to his wife, including the obligation to provide her with food, clothing and lodging. The wording of this document confirms that the husband was responsible for the family’s material well-being and managed the household. The wife occupied the position of a materially dependent person—she could not independently dispose of her own property without the husband’s knowledge and consent, and any material transactions concerning the family were conducted by the husband as the family’s sole legal representative.

To honour and obey one’s parents (kibbud av v’em) was one of the fundamental religious commandments of Judaism (mitzvot). It did not expire when a child reached the age of majority, but remained in force for the child’s whole life. Unmarried adult children living with the father remained under his authority and de facto in his care for purposes of religious law. Leaving the father’s house was an express act of emancipation and had to be made externally visible, by establishing one’s own household, leasing separate residential premises, or establishing a separate family card. This is also confirmed by the halakha rule for care of children following a divorce: sons age 6 or above lived with the father in accordance with the Shulchan Aruch (one of the classic codes of Jewish law), and the father was required to maintain them only when they actually lived with him.

A Jewish woman’s position in the public sphere was marginal, both in relation to the Polish state and within her own community. Women were excluded from direct participation in the workings of the congregation (kehillah). Thus a Jewish woman did not appear as an autonomous person in public registers under Polish administrative law, nor in the internal institutions of her own congregation.

Under the facts of the case, this means that showing a separate place of residence on the basis of public registers, arising out the signing of a separate lease or holding a separate telephone number, was simply not possible.

Yad Vashem testimony as a family document

Pages of Testimony are a special form created by Yad Vashem intended to recover the personal identity and memorialise the life stories of the six million Jews murdered by the Nazis. Each form contains the person’s first and last name, biographical details, and a photograph of the victim if available. This serves in essence as a symbolic tombstone for people most of whom lack graves. The scope of the information provided may vary, but it may contain genealogical information as well as the victim’s place of residence, profession, and wartime fate.

Significantly from the point of view of our case, Yad Vashem testimonies are submitted by Holocaust survivors, living members of the family or people who knew them, and by their nature they document entire families and not just the heads of families. These are documents of a public and historical nature, with evidentiary value recognised around the world.

The testimonies list both the father and the other members of the family, but generally indicate one home address, associated with the head of the family. This directly confirms the thesis of this article: a Jewish family in Poland in 1920–1940 functioned as a unit under one address, and that was the address of the father as the head of the family. Mentioning children in Yad Vashem documents while indicating the father’s address should thus be understood as consistent with the legal and social realities of the time, and as evidence that the entire family lived together at the same address.

Summary

The court’s bifurcation of the proceedings seeking a determination of the death of the father of the family, and of his wife and children, had no legal grounds. This is clear under the substantive law in force between 1918 and 1945, and under religious rules and customs governing the family members. When determining which court is proper to hear a case, history must not be assessed ahistorically, ignoring the law and policy in force at the time when the people in question died.

Agnieszka Jasińska, attorney-at-law, Stefan Jacyno, adwokat, Reprivatisation practice, Wardyński & Partners