Divorce and separation in Poland

certification

Judgment of the Supreme Court of November 17, 2000.

(V CKN 1364/00, OSNC 2001/9/126)

The decision of the ecclesiastical court about the validity or termination of a canonical marriage can not have a preliminary ruling on the verdict of the state court about the validity or termination of a secular marriage.

Chairman: Judge SN Lech Walentynowicz (rapporteur)

Judges of the Supreme Court: Zbigniew Kwaśniewski, Hubert Wrzeszcz

The Supreme Court, after hearing on November 17, 2000, at the hearing of the case brought by Halina K. against Henry K. for divorce, as a result of the defendant's cassation against the judgment of the Appeal Court in Katowice of 26 January 2000, dismissed the cassation appeal and ordered the defendant to to the plaintiff, PLN 300, for reimbursement of cassation proceedings.

By a judgment of July 14, 1999, the District Court in Katowice dismissed the marriage of Halina K. and Henryk K. due to the defendant's fault, entrusted the plaintiff Halina K. with parental authority over the minor daughter of Agnieszka K., for whom he ordered the defendant alimony 150 zlotys per month, he ordered eviction of Henry K. from the joint flat of the parties and settled the costs of court proceedings.

The court established that the parties had married on September 29, 1978, and two children came from that relationship: son Tomasz and Agnieszka's minor daughter. From the very beginning, the parties' marriages did not function properly for reasons attributable to the defendant. The plaintiff had already filed two divorce declarations (in 1981 and in 1987), which she withdrew, hoping for reconciliation with her husband. There has been a permanent and complete breakdown of the marriage between the parties justifying the divorce decree (Article 56 § 1 of the current year). Only in the court's opinion is the defendant who mistreated his wife and did not pay for the maintenance of the family. Henryk K. was uncritical of his own conduct, charging the plaintiff for his failures, and he was morally jealous of her. The plaintiff can not, however, be credited with the breakdown of her life because she behaved loyally towards her husband, took care of the house, bearing the costs of supporting the family and properly raising the children.

The District Court also determined that by a verdict of December 2, 1997 the Metropolitan Court in Katowice had annulled the marriage of the parties due to Henryk K.'s inability to undertake significant marital duties due to psychological reasons. The verdict was approved by a decree of the Metropolitan Court in Kraków as a second instance court, dated 14 January 1998, with the simultaneous decision that Henry K. can not make a new marriage without the consent of the diocesan bishop.

The findings made by the Regional Court also decided to take into account the eviction claim (Article 58 § 2 of the current year).

The Appeal Court in Katowice dismissed the defendant's appeal. After completing the evidence proceedings, this court additionally established that the private life of the parties ceased in 1990, and their economic bond in 1995. As a result of her husband being beaten in 1987, the plaintiff was granted a sick leave for one month. During the arguments, the defendant threw various objects out of the apartment and involved neighbors in conflict. In July 1998, the defendant used tear gas for his wife, children and neighbor. Currently, criminal proceedings are being carried out against him with a preventive measure in the form of police supervision.

In the cassation, the respondent questioned the verdict in the part that decides on the guilt of the decomposition of life and eviction, requesting its revocation and referral of the case for re-examination. The applicant appointed both grounds for cassation by pleading misinterpretation of Article 57 k.r.o. and art. 23 k.r.o. and incorrect application of art. 58 § 2 k.r.o. He also alleged violation of art. 233 k.p.c. The defendant claimed, in particular, that the plaintiff can be credited with the breakdown of marital life.

The Supreme Court weighed the following:

The assessment of evidence may exceptionally be subject to a cassation control under the second ground of appeal (Article 3931 item 2 of the Code of Civil Procedure), the more so in a situation where the second instance court conducted complementary evidentiary proceedings (see the Supreme Court's rulings of 29 October 1996, III CKN 8/96, OSNC 1997, No. 3, item 30 and dated April 17, 1998, II CKN 704/97, OSNC 1998, No. 12, item 214). The assessment of evidence is primarily within the jurisdiction of the court that conducts the evidentiary proceedings in a direct way. It is generally the court of first instance and the provisions of Section III of Title VI of Part One of the Code of Civil Procedure are generally addressed to this court. In such a way it becomes possible to implement the principle of directness and the principle of independent court action. For the reasons presented, the control of the assessment of evidence in the cassation instance is very limited; The Supreme Court is in a position to challenge it only if it turned out to be grossly flawed or obviously incorrect (cf. Supreme Court decision dated 16 October 1997, II CKN 393/97, not publ.).

The defendant's wrongdoing has never been the subject of a dispute. On the other hand, both Courts found that the plaintiff did not contribute to the breakdown of the marriage in any degree. Her behavior as a wife and mother was impeccable. This is evidenced by all the relevant evidence appealed to the Court of Appeal, including the opinion of the Family Diagnostic and Consultative Center in B. The content of this opinion does not justify the suggestion in the cassation of the plaintiff's contribution to the breakdown. An identical assessment of the parties' conduct was made in proceedings before church courts. Therefore, there was no violation of the provision of art. 233 § 1 k.p.c.

The groundlessness of the plea put forward under the second cassation basis (Article 3931 point 2 of the penal code) means that factual findings made in court proceedings are decisive. Consequently, in the light of the assessment of the conduct of both spouses, it was justified to accept the defendant's sole fault for the disclosed life distribution (Article 57 § 1 of the current year). In addition, Henry K.'s drastic behavior towards family members, threatening their health and life, justified the verdict of his eviction pursuant to art. 58 § 2 k.r.o. The defendant also did not provide arguments to justify the allegation of an erroneous interpretation of art. 23 k.r.o.

The courts had regard to proceedings pending before the Metropolitan Court in Katowice (the first instance) and the Metropolitan Court in Kraków (second instance), which led to the annulment of the canonical marriage of the parties. There is therefore a need to define the scope of the jurisdiction of the ecclesiastical and secular courts (state courts) in relation to the institution of marriage.

For the discussed issue, the provision of art. 10 of the Concordat between the Holy See and the Republic of Poland, signed on July 28, 1993 (Journal of Laws of 1998 No. 51, item 318). The arrangements provided for in it have been implemented, among others in art 1 § 2 and 3 kro, in the wording set out in the Act of 24 July 1998 amending the Family and Guardianship Code, Code of Civil Procedure, Law on Civil Status Records, Act on the State Relations to the Catholic Church in the Republic of Poland and some other acts (Journal of Laws No. 117, item 757). According to the content of art. 1 § 2 of the Civil Code, canon marriage can be the source of the formation of a secular union, which is decided solely by the spouses. However, the concept of marriage as a lay union is still valid in Polish law. In the literature on the subject, it was emphasized that the concordat regulation is limited to the new recognition only of the marriage itself, and the effects of marriage in a broad sense remain outside the sphere of her interest. Adjudication in matrimonial matters was clearly separated in the Concordat (Article 10 (3) and (4)). The state courts always decide on the fate of the marriage (secular). The separateness of the jurisdiction of ecclesiastical and secular courts results in particular from the fundamental differences existing between Polish law and canon law in relation to the reasons for the validity and termination of marriage, and even - as to the essence of marriage.

For the presented reasons, the decision of the church court about the validity or termination of a canonical marriage can not have a preliminary ruling on the verdict of the state court about the validity or termination of the secular marriage of the same spouses. The Act of 29 September 1986 - Law on Civil Status Records (Journal of Laws No. 36, item 180, as amended) exhaustively defines (in Article 55) the reasons for termination of marriage.

Judgments of church courts may, however, have evidential significance in court civil proceedings. In this sense, too, they have been assessed in the recognized case. It is only necessary to signal the discrepancy existing in the doctrine in assessing the legal character of church documents, recognized as official documents (Article 244 § 2 of the penal code), or as private documents of a special kind (Article 245 of the penal code). The resolution of this dilemma, however, is not covered by the scope of cassation in the case examined.

As a consequence, the cassation was dismissed and the costs of cassation proceedings were pronounced (Articles 39312 and 98 and 108 § 1 of the penal code).