Divorce and separation in Poland

Case law on divorce

Judgment of the Supreme Court of November 21, 2002 (III CKN 665/00, LEX No. 74446)
Judgment of the Supreme Court of June 27, 2002 (IV CKN 1192/00, LEX No. 56052)
Supreme Court judgment of 28 February 2002 (III CKN 545/00, LEX No. 55136)
Judgment of the Supreme Court of February 26, 2002 (I CKN 305/01, LEX No. 53924) Judgment of the Supreme Court of October 4, 2001 (I CKN 871/00, LEX No. 52659)
Judgment of the Supreme Court of October 26, 2000 (II CKN 956/99, M.Prawn. 2001/6/352)

Judgment of the Supreme Court of November 21, 2002.

(III CKN 665/00, LEX No. 74446)

Although the right of the innocent party should be respected, her attitude (failure to divorce despite the passage of time) may raise doubts in the context of compliance with the rules of social coexistence.

Chairman: SSN Maria Grzelka (rapporteur).

Judges of the Supreme Court: Antoni Górski, Barbara Myszka.

The clerk: Bożena Kowalska.

By the verdict appealed, the Court of Appeal in Kraków changed the verdict of the Court of First Instance in that it dismissed the claim for divorce. The Appellate Court - unlike the Court of First Instance - accepted that the passage of time from the moment the court first ruled in a case of divorce between the parties can not give rise to a different solution than before. He pointed out that in the case examined there were no new facts that would allow a different assessment of the defendant's refusal to consent to divorce from the point of view of the principles of social coexistence.

In cassation, the plaintiff accused the above sentence of offending art. 56 § 1 and 3 kr and op. by refusing to recognize that a several-year period of total decomposition of a married life does not constitute the durability of this distribution and that the duration of the complete breakdown of a married life does not constitute grounds for taking action into account. The applicant also argued that the refusal to allow divorce based on the subjective feeling of the defendant's grievance could not constitute a proper criterion for divorce, since the complete dissolution was confirmed. The plaintiff filed a cassation appeal to quash the appealed judgment and uphold the judgment of the District Court in Kielce declaring divorce.

The factual situation in the case examined was indisputable. The parties have been married since 1954, have two adult children who have their own families, both do not work professionally, receive retirement benefits with the fact that the defendant also receives PLN 100 a month for maintenance from the plaintiff. In August 1996, the plaintiff filed a petition for divorce and the abolition of alimony. The Provincial Court in Kielce dismissed the claim, and the Court of Appeals in Kraków dismissed the plaintiff's appeal by a verdict dated 1 July 1997. In that case, the Court established that from around 1995 the parties were separated by the plaintiff of the plaintiff who, after retiring, became interested in other women. The refusal of divorce expressed by the defendant considered the Court as an obstacle to take action. He pointed out that the divorce ruling would also be contrary to the rules of social cohabitation, since the party's marriage lasted 42 years, the parties raised and educated two children, and almost all their time the life was correct, mainly due to the wife's efforts, now the defendant needs help in thyroid disease . The parties' situation in this case has not changed in the sense that the parties are still separated, they occupy separate rooms in a shared flat, do not run a household together, do not contact each other in any matters concerning each of them, and possible joint matters arising from the coercion of cohabitation they settle in an atmosphere of mutual dislike. The defendant expresses concern at possible consequences of divorce in the form of the division of the property of the parties, accentuates the need to maintain the stability of the created situation, declares the possibility of returning to the economic community if the plaintiff showed such a desire.

The Supreme Court weighed the following:

Since the first judgment dismissing the divorce application came into force, about 5 years have elapsed, during which the factual situation between the parties justifying the adoption of a complete and permanent breakdown of the marriage has not changed. There were also no circumstances due to which one could now assess that the cause of the created situation is different than only the culpable behavior of the plaintiff. Consequently, as the defendant maintains a refusal to consent to divorce, the legal basis for adjudication in the present case is still art. 56 § 3 kr. and op. expressing the principle that divorce is not permissible. However, the above provision provides that if the refusal of an innocent spouse is in the circumstances contrary to the rules of social coexistence, divorce is admissible. There is no catalog of criteria in the light of which the attitude of the spouse refusing consent to divorce would be assessed as not contradicting the divorce decree, since each time it is necessary to consider specific circumstances.

If the reason for refusal is a sense of harm to meritit respects irrespective of the length of the duration of the parties' marital breakdown. It must, however, exist, and the innocent one, who is convinced to feel and maintain, objectively justifiable, the negative emotions associated with the fact of the spouse's abandonment, expresses itself. Life experience teaches that the passage of time sometimes significantly weakens the strength of these emotions, even eliminates them, and that the innocent spouse regains the psychological balance and self-esteem despite the consciousness of cessation of the relationship with the existing life partner causing a sense of abandonment or loneliness. In the case when the harm suffered ceases to be felt, and the new living conditions satisfy at certain stage of life the specific psychological needs of an innocent spouse, it is not excluded that the refusal of divorce continues to serve only the desire to manifest a certain advantage over the spouse who demands divorce and hindering his personal life. Such an attitude of an innocent spouse does not deserve the approval and if it is proved by the spouse requesting a divorce, he can justify the assessment that in the light of art. 56 § 3 kr. and op. in fine a divorce is admissible.

If the reason for refusal is a sense of threat in the existing living sphere, it can not be the reason for recognizing divorce as unacceptable if it turned out that the divorce does not entail the loss of existing rights (eg resulting from the fact of being married) or does not affect the ability to satisfy the in-living needs of an innocent spouse. The very risk of initiating proceedings for the division of the beneficial property can not be considered a circumstance by reason of which an innocent spouse could effectively oppose the divorce.

In the light of the above, the appeal of the Court of Appeal in the judgment under appeal can not be approved by the fact that the passage of time from the previous judgment dismissing the spouse's sole claim for divorce is irrelevant in re-assessing whether the divorce case is full and permanently divorced deserves to be included. On the contrary, it must be acknowledged that the mere passage of time could have been a significant circumstance when it considered that it was capable of weakening the defendant's perception of harm to the extent that it could not be considered a refusal to divorce. It required consideration of the defendant's attitude presented, among others in the pleadings of December 7, 1998, dated 29 December 1998 and in the grounds of the appeal and evidence resulting from the evidence gathered in the case.

For the reasons set out above, the allegation of cassation alleging violation of Art. 56 § 3 kr. and op. The appealed judgment was annulled and the case - handing over to the Court of Appeal for reconsideration - art. 39313 § 1 k.p.c.

It was not justified to plead infringement of art. 56 § 1 kr. and op. Contrary to the applicant's assertion, the Court of Appeals did not refuse to disintegrate the parties' features of completeness and permanence, and only, somewhat awkwardly stylistically, expressed the view of the importance of the passage of time in divorce cases. The groundlessness of cassation in this respect, however, does not affect the assessment of the judgment under appeal as being subject to annulment.

Judgment of the Supreme Court of June 27, 2002.

(IV CKN 1192/00, LEX No. 56052)

The ineffectiveness of refusing consent for divorce of an innocent spouse is not connected with the existence of special (in this sense exceptional) circumstances, but, according to the wording of art. 56 § 3 of the Charter, such circumstances which, according to the above interpretations, render it inconsistent with the principles of social coexistence.

Chairman: SSN Marek Sychowicz.

Judges of the Supreme Court: MirosławBączyk, Iwona Koper (rapporteur).

The District Court in B., by a judgment of October 26, 1999, dissolved the parties by the divorce due to the sole fault of the plaintiff, taking as the basis of the settlement the following findings of fact:

Wojciech K. and Anna K. were married on April 1, 1972. From this relationship two grown-up daughters were born. The parties' marriages were not successful from the beginning. The plaintiff in a short period of time ceased to respond with affection, betrayed a wife who did not meet his expectations in terms of physical bond. The defendant forgave the plaintiff for betrayal, he is still willing to continue living with him, he declares his feelings for her husband. The defendant did not work in earnings, the family was obliged to keep the whole in the floods. The parties have built a house in which they live together. In 1992, the plaintiff left his wife and children and became involved with another woman for a period of five years. At present, he remains in another union which he wants to legalize. He is the father of a three-year extramarital child. The parties have been separated for seven years, they do not maintain economic and physical ties. They remain in conflict, have different views on functionsmarriage. The plaintiff's reluctance towards the defendant testifies to the lack of spiritual links between the parties and results in the inability of the spouses to return to a joint life.

On this basis, he accepted the District Court that the breakdown of marital life occurred between the parties involved the plaintiff who committed the betrayal of marriage and left the family. The refusal of the defendant's consent for divorce is contrary to the principles of social coexistence in a situation where, despite emotional declarations, it is guided by the desire to prevent the claimant from legalizing the present harmonious relationship. This assessment is also justified by the long-term period of separation and the absence of any manifestations of the actual relationship between the spouses at that time. The marriage of the parties does not fulfill their social functions, and thus keeping only the formal marriage node is a social evil.

As a result of the defendant's appeal, the Appeal Court in G. as amended by the judgment changed the verdict of the District Court and dismissed the claim. In his recitals, he pointed out that refusal of divorce could be classified as contrary to the principles of social coexistence only in special circumstances. The presumption speaks in favor of the fact that anyone who exercises the right to refuse consent to divorce does so in a manner consistent with the rules of cohabitation and only the occurrence of special circumstances may suspect this. In the opinion of the Court of Appeal, such circumstances do not arise. In particular, there is no reason to assume that the lack of consent to divorce prevents the claimant from legalizing a new harmonious relationship. The plaintiff remained in two informal relationships within seven years, the first lasted five years and a child was born. There are no children from the current relationship. There are reasonable doubts as to whether the new relationship is indeed harmonious and should be preferred to the parties' marital relationship. The decree of divorce at the request of the spouse solely guilty of the breakdown of life is determined by the conviction that it does not offend the moral feelings of society, whereas the proceedings of the plaintiff do not fall within the universally recognized norms of social coexistence. The plaintiff left his family, he committed marital deception, he left his wife, left her without any means, and moved into a common home with a concubine.

In cassation based on violation of substantive law, the plaintiff alleged violation of art. 56 of the Criminal Code by accepting that there are no special circumstances in the case to qualify for refusal to consent to divorce as contrary to the principles of social coexistence. In her proposals, he demanded that the judgment under appeal and the divorce be changed.

The General Court considered the following:

The justification of the cassation basis cited clarifies the alleged infringement as being in breach of Art. 56 § 3 of the Penal Code in the form of an erroneous interpretation thereof, in the scope of the premises of the appellate court's assessment of consent for divorce from the point of view of the principles of social coexistence.

The applicant is aptly supported by the reference to the position expressed in the resolution of the full composition of the Civil Chamber of the Supreme Court of 18 March 1968, III CZP 70/66 (OSNCP 1968, No. 5, item 77), that the assessment of whether to oppose the divorce does not constitute an abuse of law, it should be based, in addition to the causes of the decomposition of life, on circumstances and living conditions arising as a result of the decomposition of a living, both an innocent spouse and a marriage disposer who disagreed, including those related to existing unmarried couples and the social purpose of their legalization. It is only in their context that it will be possible to say whether keeping only a formally existing marriage, in the absence of a chance to reactivate marriage between spouses, does not violate the generally accepted principles of just conduct derived from the rules of public morality and does not harm the interests deserving from their point of view for protection.

In accordance with the prevailing in the case-law, the interpretation of art. 56 § 3 kro, initiated by the above resolution (see also judgments of the Supreme Court of 27 October 1999, III CKN 412/98 and 4 October 2001, I CKN 871/00 - not published), based on the concept of objective qualification of behavior the spouse who has the right to refuse his / her consent for divorce is decisive for the assessment of the subject matter. The omission of refusal to allow divorce due to the conflict with the rules of social coexistence may occur if in given circumstances there is no reason to assume that the divorce judgment may cause undesirable social consequences. At the heart of this position is the assumption that the purpose of divorce is to eliminate the harm which from the social point of view would be to maintain formal marriages, when the marriage does not exist and there is no chance for it to continue functioning. The harmfulness of the persistence of such a state of affairs is related to, inter alia, further antagonism of the remaining spouses and their relatives (including theiradult children), which is a source and behaviors considered undesirable in terms of commonly accepted rules of conduct. From this point of view, the social interest may speak for the dissolution of the marriage, when it removes the source of the conflict and leads to a socially approved change in the attitudes of the spouses, following a change in their life and personal situation.

The ineffectiveness of refusing consent to the divorce of an innocent spouse is therefore not connected, as the Court of Appeal assumes, with the existence of special (in this sense exceptional) circumstances, but, according to the wording of art. 56 § 3 of the Charter, such circumstances which, according to the above interpretations, render it inconsistent with the principles of social coexistence.

The presented direction of interpretation also means a departure from the tendency presented in earlier jurisprudence, focusing the court's attention primarily on ethical issues (see Supreme Court rulings of August 18, 1965, III CR 147/65, OSPiKA 1966, No. 4, item 93 and of December 7, 1965, III CR 278/65, OSNCP 1966, no. 7-8, p. 130), manifested in the recitals of the judgment under appeal, put forward in the foreground by an assessment of the plaintiff's moral attitude.

In this state of affairs, when the basis for cassation proved to be justified, the Supreme Court quashed the judgment under appeal and remanded the case to the Court of Appeal for reconsideration, taking into account the interpretation of the provision of art. 56 § 3 of the Civil Code (Article 39313 § 1 of the penal code).

Judgment of the Supreme Court of February 28, 2002.

(III CKN 545/00, LEX No. 55136)

When regard to the feeling of harm to an innocent spouse and his life situation requires moral judgments to be negative, it is equally important to consider the situation from the point of view of social harm caused by maintaining formal marriages without a chance when considering a divorce; on actual functioning with the simultaneous existence of extramarital relationships deserving of legalization.

Chairman: SSN Antoni Górski.

Judges of the Supreme Court: Tadeusz Domińczyk, Maria Grzelka (rapporteur).

By the verdict appealed, the Appeal Court in K. changed the verdict of the Provincial Court in K., by virtue of which the parties divorce was pronounced, and dismissed the claim. The Court of Appeals found that the plaintiff was solely responsible for the breakdown of the marriage, and the refusal of the defendant to consent to divorce is not contrary to the rules of social coexistence, therefore the demand for divorce is unjustified in the light of art. 56 § 3 and 57 § 1 of the k. and op. In cassation, the plaintiff alleged violation of substantive law - the provision of art. 56 § 3 k.r. and op., by accepting that he bears the blame for the breakdown of marital life and that the lack of consent of the defendant is not contrary to the principles of social coexistence. The applicant submitted that the parties had not been living together since 1983 nor had any contacts, and that the defendant was guilty of not being willing to divorce. The plaintiff requested to change the appealed judgment and to terminate the parties' marital relationship by divorce through the fault of both of them.

The Supreme Court weighed the following:

The provision of art. 56 § 3 k.r. and op. it does not concern the issue of guilt for the breakdown of the marriage, so that the provision could not justify in the case examined the wrongful acceptance of the sole fault of the plaintiff. For this reason, as well as in the absence of any justification of the above allegation, cassation in this respect was not subject to consideration. In any case, it seems that despite the petition being challenged by the Appeals Court regarding the lack of the defendant's co-plaintiff, the plaintiff did not question this position, which he expressed on page 3 of the cassation justification, stating that the defendant's attitude was the most important in the case under consideration.

In this regard, cassation rightly accuses that the adoption in the judgment under appeal that the refusal of the defendant to consent to divorce is not contrary to the principles of social coexistence, violates art. 56 § 3 k. And Op. The interpretation of this provision made by the Court of Appeal in the considered area emphasizes the moral principles justifying refusal to consent to divorce from the point of view of the harm done to the innocent and in the aspect of the guilt of the guilty party. By not objecting in principle to such a subjective recognition of the spouse's refusal of consent, the Supreme Court notices that, with all the complexity of the problem, it is impossible not to recognize the objective qualification of the spouse's behavior, i.e. significance of social effects of this behavior. This is justified especially in such situations, when during the long-term separation of spouses, the spouse has made a permanent acquaintance with a new marriage, including care for illness from a third party, while the spouse's ineffective feelings about abandonment by the spouse and organizationliving on your own. The refusal to give consent to a divorce in such a situation in fact expresses only the unwillingness to legalize the actually functioning relationship without at the same time having legitimate reasons on account of its own interest, which should not be approved. In any case, when regard to the feeling of harm to an innocent spouse and his life situation requires making moral judgments in negative terms, it is equally important to consider the situation from the point of view of social harm caused by maintaining the consent to divorce. formal marriages that have no chance of actual functioning while the existence of unmarried couples deserving of legalization.

In the case examined, the Court of Appeal did not consider that the parties have been in separation for about 20 years, during which the plaintiff arranged his life with another woman and there is no indication that he would be able to return to his wife, and defend his hopes for her husband's return only based on the statement "people say it will pass". He also omitted the Court of Appeal that the defendant does not report any personal or living needs, the satisfaction of which would depend on being married to the plaintiff.

For the above reasons, the Supreme Court, acting pursuant to art. 39313 § 1 of the penal code, he quashed the judgment under appeal and remitted the case to the Court of Appeal in K. for reconsideration.

Judgment of the Supreme Court of February 26, 2002.

(I CKN 305/01, LEX No. 53924)

1. It is presumed that the beneficiary of his right does so in a manner consistent with the principles of social coexistence. Refusal to consent to the divorce of an innocent spouse is his right, and therefore it is presumed that by using it, he does so in a manner consistent with the principles of social coexistence. Only the existence of special circumstances can presumptively disprove it.

2. The very length of detachment of spouses can not be regarded as such a circumstance which, in the light of art. 56 § 3 k.r.o. would justify the recognition of the refusal to consent to the divorce of an innocent spouse as contrary to the rules of social coexistence, and also the length of detachment does not create the presumption that the innocent spouse, refusing consent to divorce, is driven by a desire to harass a spouse.

53924

OJ64.16.93: Article 5

OJ64.9.59: Article 56

Chairman: SSN Gerard Bieniek.

Judges of the Supreme Court: Stanisław Dąbrowski, Irena Gromska-Szuster (rapporteur).

Protokolant: Anna Matura.

By virtue of a judgment of December 16, 1998, the District Court in Warsaw dismissed the divorce by divorce through the guilt of the husband, stating that the marriage was concluded on February 8, 1969, the parties have adult children and until 1992 their life was well . In June 1994, the plaintiff moved out of the house and lived with another woman, and from now on, the parties did not take up residence. In February 1995, the plaintiff filed for divorce, which was dismissed by the Provincial Court judgment of August 13, 1996. The appeal of the plaintiff against this judgment was dismissed by the Court of Appeals judgment of April 8, 1997. The reason for the dismissal of the claim was the defendant's consent to divorce in determining that the only reason for the breakdown of life is the reason, and refusal to agree to divorce does not violate the rules of social coexistence.

Recognizing the plaintiff's claim for the second time and the position of the defendant who filed for dismissal of the claim, the Regional Court found that there was a permanent and complete decay between the parties committed by the plaintiff who broke off the marital relationship by associating with another woman. This justifies the divorce decree. The court rejected the defendant's consent for divorce as contrary to the principles of social coexistence. The Regional Court stated that the parties remained in a de facto separation for more than five years, since then the plaintiff has been connected with the same woman, during this period the defendant made no proposal to save the marriage, only expecting the husband to change his behavior. The expert's opinion indicates that this state has been accepted, while further divorce cases have a negative impact on her health, during which time she was forced to use the psychiatrist's help, which also resulted in her lowering of her professional capacity. In this situation, the District Court found that although the basis for refusing consent to divorce is a sense of harm suffered, the lack of social and educational reasons for maintaining this relationship makes the refusal to be considered contrary to the principles of social coexistence. The defendant's appeal based on the alleged violation of art. 56 § 3 k.p.c. The Court of Appeal dismissed the appealed judgment of 22 November 2000.

The court of second instance based its decision on the factual findings of the District Court and also shared its legal assessment, indicating that the decisive factor that justifies the assessment of the refusal of the divorce's consent as contrary to the principles of social coexistence is the considerable passage of time from the distribution of parties to the decreeand the existence of a new informal relationship between the plaintiff and the same woman throughout this period. This justifies, in the opinion of the Court of Appeal, the statement that the marriage of the parties is a dead relationship, and the defendant is reconciled to this state and is aware that the return of her husband is in fact unrealistic. Her lack of consent to divorce can not be explained in this situation in a different way than the lack of consent to legalize her husband's new relationship, which in the opinion of the Court of Appeal is in contradiction with the principles of social coexistence. According to the appellate court, the state of health of the defendant does not change this assessment, because it does not follow from the findings that the dismissal of the claim could have a positive impact on the state, knowing that the plaintiff would soon again bring an action for divorce.

In cassation from the above judgment based on both cassation grounds indicated in art. 3931 kp.c. the defendant alleged violation of substantive law - art. 56 § 2 and 3 k.p.c. - by faulty interpretation and improper application, and violation of the provisions of the procedure - art. 328 § 2 k.p.c. - which influenced the outcome of the case. On the basis of these allegations, she requested that the judgment under appeal and the preceding judgment of the Court of First Instance should be amended and the claim should be dismissed, possibly the decision should be set aside and the case should be remanded, taking into account in both cases the application for costs of cassation proceedings.

The Supreme Court weighed the following:

Basing the cassation on both cassation grounds indicated in art. 3931 kp.c. makes it necessary to assess in the first place allegations relating to the violation of the provisions of the proceedings, because the assessment of the correctness of the application of substantive law is possible only in relation to a properly established factual situation and correctly derived justification of the decision.

The cassation appeal of the provisions of the proceedings is limited to the allegation of violation of art. 328 § 2 k.p.c. Admittedly, the justification for cassation included also allegations referring to the assessment of evidence and factual findings, but without indicating infringements of legal norms, which means that they are not subject to a cassation appraisal and as such must be considered ineffective. It is also not effective to plead infringement of art. 328 § 2 k.p.c. justified by the fact that the Court of Appeal failed to explain the legal basis for the decision and that the Court of First Instance did not refer to the incorrectly indicated legal basis by the Regional Court. First of all, it should be stated that the Court of Appeal provided the legal basis for its resolution - art. 385 kp.c. - and this is the correct basis, because this provision constitutes the legal basis for dismissal of the appeal by the Court of second instance, and such a ruling was issued by the Court of Appeal. On the other hand, the applicant is right when he states that the Court of First Instance did not refer to the appeal plea regarding the defective legal basis indicated by the Court of first instance. This failure, however, does not justify the allegation of violation of art. 328 § 2 k.p.c., and no other provision was indicated by the applicant. In addition, it must be stressed that according to art. 3931 points 2 k.p.c. the effectiveness of the cassation complaint concerning the infringement of the procedural rules depends on the applicant demonstrating that the failure could have a significant impact on the outcome of the case. The applicant failed to show that the failure to "properly" did not allow the review of the merits of the decision, although it is clear that the Court of Appeal, sharing the position of the Court of First Instance on contradiction with the rules of social coexistence, refused the divorce's consent; justified. And although he did not actually set up the provisions of art. 56 § 1 and 3 HRR, but his position is subject to cassation control, and therefore a possible breach of the provisions of the proceedings did not affect the resolution of the case.

It is also unjustified, based on the first cassation basis, alleged violation of art. 56 § 2 k.r.o. This provision has not been applied at all in the case, the facts of which are exhausted by the norm of art. 56 § 3 k.r.o. and only in this aspect he was judged by the courts of both instances. In the absence of consent for divorce of an innocent spouse, the assessment of whether a divorce is admissible or not is made based on the premises of art. 56 § 3, not § 2 of the Civil Code, which applies to other facts.

On the other hand, it is legitimate to criticize the violation of art. 56 § 3 k.r.o. through his erroneous interpretation.

First of all, it should be pointed out that according to the generally accepted interpretation of the said provision (corresponding to the interpretation of Article 5 of the Civil Code, as to the condition of compliance with the principles of social coexistence), it is presumed that the beneficiary does so in a manner consistent with the principles social intercourse. Refusal to consent to the divorce of an innocent spouse is his right, and therefore it is presumed that by using it, he does so in a manner consistent with the principles of social coexistence. Only the existence of special circumstances may be domnTo overthrow it (compare the judgment of the Supreme Court of 7.XII.1965 III CR 278/65, OSNC 1966 / 7-8 / 130, guidelines of the Supreme Court of 18.III.1968 III CZP 70/66 OSNC 1968 / 5/77, judgment of the Supreme Court of December 26, 2000, II CKN 956/99, M. Prawn. 2001/6/352). These circumstances must be concretised and demonstrated by the opposing party, and the innocent principle of social conduct violated by the spouses must be clearly stated in a way that allows to determine what rules of ethical and honest conduct have violated the innocent spouse refusing consent to divorce (cf. Supreme Court ruling of 13 March 1998 IC 539/97 not publishing). It should be pointed out that it is also fixed in the case law of the Supreme Court in the interpretation of art. 56 § 3 of the Civil Code, according to which the very length of detachment of spouses can not be regarded as such a circumstance which, in the light of art. 56 § 3 k.r.o. would justify a refusal to consent to the divorce of an innocent spouse as contrary to the principles of social cohabitation, and also the length of detachment does not create a presumption that the innocent spouse, refusing consent to divorce, is guilty of harassment towards the spouse (see the ruling of the Supreme Court of 18.VIII.1965 III CR. 147/65, OSPiKA 1966/4/93). Therefore, the length of detachment of spouses should be a factor taken into account when assessing the lack of consent of an innocent spouse to divorce, but not as a decisive factor. As a rule, the refusal to consent to the divorce of an innocent spouse caused by a sense of injustice can not be considered contrary to the rules of social coexistence (cf. the Supreme Court judgment of March 13, 1998. I CKN 539/97 not published) .

It should therefore be stated that in the light of the above interpretation of art. 56 § 3 of the Civil Code, the position of the Court of Appeals justifying the assessment of the defendant's lack of consent for divorce contrary to the principles of social coexistence with the long-term spouses' separation is not convincing enough. Also the assessment that a motive for refusal of consent must be considered to be contrary to the principles of social co-existence, if it is a desire to prevent the legalization of an informal relationship of a spouse, does not correspond to the above rules for the interpretation of art. 56 § 3 k.r.o. In the event of an informal relationship of the spouse, the refusal to consent to the divorce of an innocent spouse is usually based on the goal of seeking to prevent the informal relationship of the spouse from being legalized. This goal is not in itself contrary to the principles of social coexistence, if it results from the desire to maintain a married relationship, caused by reasons consistent with moral, ethical and social norms. The assessment that in specific circumstances such a goal is contrary to the principles of social coexistence must indicate a specific moral, ethical or social norm that it violates. At the same time, it is not indifferent whether there are any social considerations justifying the desirability of legalizing the informal relationship of the spouse, or whether there are no such reasons. Only specific and specific circumstances justifying the legality of an informal relationship may justify the assessment that the lack of consent of an innocent spouse to divorce is contrary to the principles of social coexistence. However, such a conclusion must be preceded by a comprehensive analysis of the life situation of both spouses and the assessment of whether in a particular circumstance of protection the right of the innocent spouse to maintain an existing marriage or the right to divorce the spouse and legalize the informal relationship in which he remains. These goods are not equal in the light of the principles of art. 56 § 3 k.r.o. and only to prove the existence of exceptional circumstances justifies the omission of consent for the divorce of innocent spouse because of its contradiction with the principles of social coexistence. Undoubtedly, the nature of both relationships can not be judged, but it is not enough to say that the new relationship is permanent and that the marriage is "dead" (without further justification) and this justifies the assessment that the desire to maintain it by the defendant does not deserve approval . The legislator also provides for the maintenance of such relationships in the institution of separation, which can not have any effect on the assessment of the defendant's position in this regard. Only the demonstration that he refuses to consent to divorce due to violation of the rules of ethical and honest behavior may justify the omission of his lack of consent and the dissolution of the "dead" relationship. Whether the marriage is "dead" is only one of the many and not the most important factors to be assessed under Art. 56 § 3 k.p.c.

It is also difficult to share the position of Courts of both instances, which, as can be inferred from justification, adjudicated a divorce, also causing the defendant's good, to save her from participating in further divorce cases that badly affect her health. This motive undoubtedly can not justify the decision of divorce against the will of the defendant, since the good does not belong to the gameThe children of the parties and the defendant have the right to assess whether oppressing the divorce is in accordance with her good or not.

For all these reasons, the allegation of violation of Art. 56 § 3 of the Civil Code, which leads to the repeal of the appealed judgment on the basis of art. 39313 k.p.c. and refer the case for reconsideration and decision on the costs of cassation proceedings (Article 108 (2) of the Code of Civil Procedure in connection with Article 39319 of the penal code). The absence of the above-specified necessary arrangements as to the circumstances relevant to the assessment of the refusal of the defendant's consent for divorce from the point of view of the principles of social coexistence, does not allow for a reforming verdict.

Judgment of the Supreme Court of October 4, 2001.

(I CKN 871/00, LEX No. 52659)

1. The only plane for the cassation court's interference in the realm of facts is admissible under the second statutory ground for cassation of compliance with procedural acts in proceedings before the court of second instance, in view of the deficiencies indicated in the cassation, which could have a significant impact on the actual findings, and thus on the outcome of the case.

2. The determination in the divorce decree of the spouse's guilt in the formation of the distribution is not a consequence of a specific assessment of evidence, but constitutes a legal conclusion from the findings, expressing at the same time a negative assessment of his conduct, which led to this distribution.

3. The assessment of whether the opposition to divorce is not an abuse of the right to give consent to divorce should be based, in addition to the reasons for the breakdown of life, also the circumstances relating to the life situation and life circumstances of both the innocent and the innocent spouse. asking for the dissolution of a marriage that breaks down. It is only in their context that it will be possible to ascertain whether keeping only a formally existing marriage, in the absence of a chance to reactivate marriage between spouses, does not violate the generally accepted principles of just conduct, derived from the rules of public morality, and does not harm the interests deserving their point vision for protection.

52659

OJ 64.43.296: article 3.98 (3)

OJ64.16.93: Article 5

OJ64.9.59: Article 56

Chairman: SSN Zbigniew Struś.

Judges: SN Iwona Koper (rapporteur), SA Krystyna Bilewicz.

Reporter: Ewa Krentzel.

The plaintiff Marek K. demanded the marriage divorce with defendant Karolina K. to be dissolved by the divorce on August 15, 1964, due to the fault of both parties. In the statement of reasons for the claim, he claimed that as a result of the conflicts between the spouses, which had been growing for many years, caused by the defendant's constant negating of the position, opinion and value of the plaintiff, a permanent and complete decomposition of marital cohabitation occurred. Marriage of parties has in fact not existed since the beginning of the nineties, the parties do not live together, all ties have ceased to exist between them. The plaintiff acknowledged that he had been in a permanent informal relationship with another woman since 1991.

The defendant did not consent to the divorce, she argued that the sole fault for the existing breakdown of the life was borne by the plaintiff, and, filing for dismissal of the claim, she expressed the conviction that there was still a chance of her husband returning to her.

In a judgment of 25 November 1998, the Provincial Court in Warsaw dismissed the claim, taking as the basis of the decision the following factual findings: Two adult children were already born on the parties to the marriage. The marriage functioned well, although not without conflict, due to the plaintiff's misuse of alcohol. In the years 1976 to 1989, the parties stayed abroad in connection with the diplomatic service of the plaintiff at the facilities in K. and S. After returning to the country, the spouses jointly purchased a flat for the future of his daughter. In 1990, he met the plaintiff in L. Bożena M., with whom he established close contacts in 1991, and continued this knowledge during his official stay in L. in the years 1992 to 1996. In 1995, the physical bond between the spouses ceased. Since 1996, the plaintiff has lived in Poland with Bożena M. remaining with her in a cohabiting relationship.

The presented state of affairs led the Provincial Court to the conclusion that due to the plaintiff, who left the spouse for another woman and his exclusive fault, the marital cohabitation of the parties was completely and permanently degraded. The plaintiff's allegations raised in the trial aimed at showing the plaintiff's defendant - in the opinion of the Court - did not gain confirmation in the evidence.

Long-term staying by the parties in the marriage justifies the recognition that the refusal of consent to divorce from the defendant is not contrary to the rules of cohabitation, the decree of divorce is therefore due to the provision of Article. 56 § 3 kro unacceptable. Recognizing the case as a result of the plaintiff's appeal against the above-mentioned verdict, the Warsaw Court of Appeal considered it unreasonable and, as a consequence, the judgment under appeal now ruled on its dismissal. By sharing the factual findings of the court of first instance, he also accepted their legal assessment, in particular as to the lack of fault of the defendant in the breakdown of his life,and from the incontestability of refusing her consent to divorce with the rules of social coexistence.

This judgment was challenged by the cassation in which, with reference to the basis of art. 3931 points 1 k.p.c. he accused both courts of adjudication in the case of a violation of substantive law by erroneous interpretation of art. 56 § 3 of the Penal Code, based on the erroneous recognition that the only reason for the breakdown of the marriage between the spouses is the reason and the mistaken acceptance that the lack of consent of the defendant was not contrary to the principles of social coexistence. Pointing to the above, he requested that the judgment under appeal and the divorce decree be changed by fault of either party or the plaintiff's sole fault and that the defendant be ordered to pay the costs of the proceedings.

The Supreme Court weighed the following:

In the justification of the alleged violation of substantive law, the complainant first criticizes the factual findings adopted as the basis for the first-instance court's decision and approved by the appellate court. The errors in the factual basis of the verdict derive from a different assessment of evidence in the judgment of the courts, which, in the conviction of the applicant, confirms the defendant's cohabitation in the distribution of marital cohabitation. In them, he sees the reasons for the defectiveness of the decision on guilt. Those pleas relating to the decision on guilt do not correspond to the cassation basis quoted, both within the scope of the provision of art. 56 § 3 kro, in the absence of the proper art. 57 kro, as well as the matter covered, which concerns the legal sphere, not the actual decision appealed against, which in connection with the content of art. 39311 k.p.c. in the wording before the amendment of the Act of 24 May 2000 amending the Code of Civil Procedure ... (Journal of Laws No. 118, item 554) in conjunction with from art. 5 para. 2 of the Act, leaves it outside the jurisdiction of the Supreme Court. In the light of the Supreme Court's jurisprudence, which took shape as compared to the Act of 1 March 1996 amending the Code of Civil Procedure ... (Journal of Laws No. 43, item 189), it can no longer raise doubts on the principle of binding The Supreme Court in the cassation proceedings with the actual state established in the appealed judgment. The only plane for the interference of the cassation court into the realm of facts is admissible under the second statutory ground of cassation to check compliance with the procedural procedural provisions in proceedings before the second instance court in view of the deficiencies indicated in the cassation, which could have a significant impact on the content of actual findings, and thus on the outcome of the case.

By the way, it is only to be noted that the decree in the divorce decree is not a consequence of a specific assessment of evidence, but constitutes a legal conclusion from the findings, expressing at the same time a negative assessment of his conduct, which led to this distribution.

Undoubtedly, the complainant aptly raises the reference to the position expressed in the resolution of the full composition of the Civil Chamber of the Supreme Court of 18 March 1968, III CZP 70/66 (OSNCP 1968, No. 5, item 77), that the assessment in the light of art. 56 § 3 of the rejection of consent for divorce from the point of view of the principles of social coexistence is the application of substantive law, which however, due to the form of its violation indicated in cassation, situates this issue beyond this basis, and thus outside the scope of cassation control.

To interpret the provision of art. 56 § 3 kro, on the other hand, include the premisses of this assessment. In accordance with the prevailing in the case-law, the interpretation of art. 56 § 3 of the Civil Code, based on the concept of an objective qualification of the behavior of the spouse entitled to refuse the divorce (see the resolution of the full Chamber of the Civil Court of the Supreme Court of 18 March 1968, judgments of the Supreme Court of 17 May 1967, III CR 54/67, OSPiKA 1968, No. 3, item 57 and of October 27, 1999, III CKN 412/98, not published), omission of refusal to consent to divorce as incompatible with the principles of social coexistence may take place when in the circumstances, there is no reason to assume that the divorce judgment may have unwanted social consequences. The assessment of whether the opposition to divorce is not an abuse of the right to consent to a divorce should be based, in addition to the causes of the breakdown of life, also the circumstances relating to the life situation and living conditions, both the innocent spouse and the applicant the dissolution of a marriage that breaks the schedule. It is only in their context that it will be possible to ascertain whether keeping only a formally existing marriage, in the absence of a chance to reactivate marriage between spouses, does not violate the generally accepted principles of just conduct, derived from the rules of public morality, and does not harm the interests deserving their point vision for protection.

In the light of the above-mentioned effectiveness of the defendant's refusal to consent to divorce, he can not call into question the fact that he remains in the justification of the cassation appealthe plaintiff in a couple of years of relationship with another woman, nor the applicant's conviction about the irreversibility of the breakdown of the parties' marital lives.

Deprived in this state of things justified grounds, cassation should be dismissed in accordance with art. 39312 k.p.c.

Judgment of the Supreme Court of October 26, 2000.

(II CKN 956/99, M.Prawn. 2001/6/352)

Refusal to give consent to divorce by an innocent life (§ 56 § 3 last sentence KRO) enjoys a presumption of conformity with the rules of social coexistence; this presumption can be refuted by proving the specific circumstances that indicate otherwise.

The District Court dismissed the marriage of Andrzej P. and Janina P. by divorce through the fault of the husband, ruled on the manner of divorced spouses using the joint flat and the court costs and costs, citing the following grounds for the decision:

The parties have no offspring of marriage, although they wanted to have them. In pursuing this objective, the defendant - with the approval of the plaintiff - made a number of efforts. The plaintiff did not consent to the adoption of a child. After the marriage, the parties lived for two years with the defendant's parents and during that time they were building a single-family house. At the beginning of the nineties, the plaintiff left for Austria for three months, and since the mid-nineties, he stays there permanently and works illegally. He came to the country every 2-3 months for a few days. The plaintiff in 1997 met Mariola in Austria and made a physical connection with her, from which in November 1997 her daughter Julia was born. Since then, the plaintiff lives with Mariola M. He came with her three times to Poland. During one of such stays in Poland, the plaintiff brought his concubine to the area of a common marriage estate and then there was a quarrel between the two women. According to the District Court, the distribution of marital life is complete and lasting and was solely committed by the plaintiff who did not observe the marriage's fidelity. Refusal to consent to a divorce by the defendant is contrary to the principles of social coexistence, because in the absence of offspring from marriage - the reason of the cohabitation has a child and expects the other but can not legalize a new marriage.

As a result of the defendant's appeal, the Court of Appeal changed the verdict of the District Court and dismissed the claim and ordered the plaintiff to pay the costs of the trial for both instances.

The Court of Appeal accepted that the defendant's refusal of consent to divorce was not contrary to the principles of social coexistence in the situation in which he pleaded the party's marriage. The date of birth of a child from cohabitation with a concubine shows that the plaintiff had physical life with her much earlier than in 1997, and even "in parallel" with the wife and his wife, since the physical life between the parties ceased until August 1997. the plaintiff made a living with the concubine, it was blameworthy to bring her to the common property of the parties, which the defendant felt affected because of the opinion and customs and environmental assessments prevailing in the small town in which the defendant lived. The period of separate residence of the spouses is still so short that accepting the state of affairs imposed by the plaintiff would mean approval of a particular way of proceeding and the way of "leaving" the marriage. The District Court's argument that divorce was expedient for the benefit of minor children from cohabitation and for the legalization of a new marriage weakened the fact that the second child was not born.

Dismissal of the claim - in the opinion of the Court of Appeal - does not mean the inability to divorce in the future, either in a changed factual situation, or after a period of time when natural emotions, injuries and grievances expire.

The plaintiff, accusing in cassation of a violation of substantive law through "misinterpretation" of art. 56 § 1, 2 and 3 KRO, "by accepting that the complete and permanent decomposition of spouses' life has not occurred and the defendant's good is protected by the principles of social coexistence, when in fact the facts determined by the courts of both instances indicate that the principles of social coexistence should be to protect first of all the welfare of a minor child ", he requested that the judgment under appeal should be set aside and the case be referred to the Court of Appeal for reconsideration.

The Supreme Court weighed the following:

The applicant's assertion that the Court of Appeal established that there was no complete and permanent decomposition of his marital life was inconsistent with the grounds of the judgment under appeal. That court accepted as proved that such a distribution existed and was solely committed by the plaintiff. This corresponds to the premises of the so-called positive divorce mentioned in art. 56 § 1 KRO and satisfies the requirements of art. 57 § 1 KRO.

The statement of the Court of Appeal that the action may be included in the future (either in a changed factual situation or after a period of time when natural emotions, injuries and regrets expire) was aptly not related to the durability of the distribution afterbut to assess the refusal of divorce in the light of the principles of social coexistence. The Court of Appeal, despite the existence of a complete and permanent decay of life, dismissed the claim with reference to art. 56 § 3 KRO, assuming that the defendant's refusal to consent to divorce is not contrary to the principles of social coexistence.

It is unreasonable in the matter that the parties do not have common children from marriage. The laconic justification of the cassation shows that citing the infringement of the good of the child, the plaintiff applies this to his extra-marital minor child coming from living with Mariola M. It follows that art. 56 § 2 KRO - in the part stipulating that a divorce judgment is inadmissible, if, as a result, the common good of spouses' minor children would be harmless - the case was not applicable at all, therefore the ground for cassation in this respect is unjustified, because the plea of violation of substantive law inadequate the subject matter of the dispute can not be considered justified (see, for example, judgments of the Supreme Court of 20.8.1997, I PKN 219/97, OSNAP No. 10/1998, item 304, and 19.5.1998, II UKN 60/98 , OSNAP No. 10/1999, item 253, and from June 29, 2000, II CKN 1093/00, unpublished). The question of the good of a minor child of a plaintiff, from a cohabitation, may be considered as part of the assessment of compliance (or non-compliance) with the principles of social coexistence of the defendant's refusal of consent for divorce.

It follows from the foregoing that the key issue in the case is therefore the assessment of the grounds for cassation in the form of a "misinterpretation" of art. 56 § 3 KRO. This requires a reminder of what is the erroneous interpretation of substantive law and what is the meaning of the rules of social coexistence in the aspect of art. 56 § 3, sentence the last KRO.

Violation of substantive law, which is a consequence of its erroneous interpretation (Article 3931 point 1 of the Code of Civil Procedure), is based on a misunderstanding of the content of the provision used. This form of violation also includes determining the content of the general legal concepts to which the rules of social coexistence belong (so aptly ruled the Supreme Court in the judgment of 19.1.1998, I CKN 424/97, OSNC No. 9/1998, item 136).

In the doctrine and in the jurisprudence, the principle of social coexistence - as a general clause - is to be understood either in a "normative" or "situational" manner. According to the normative understanding, these principles are norms on axiological justification, belonging to the applicable law. They are only moral norms, containing rules of conduct between people, or also moral norms. Such an understanding of the principles considered is often associated with the demand that the court, resolving the matter with reference to these principles, formulate a specific principle of coexistence, which it refers to. A situationalist understanding of the principles of social coexistence consists in determining the limits and basis for the participation of judges in a particular case and taking into account all circumstances of a given factual situation. According to this approach, the principles of social coexistence may be the basis for making a correction in the assessment of an unusual case, but they do not serve to generalize in situations considered to be typical. The role of the rules of social coexistence is to synchronize the law with the precepts of morality and morals, to make the law more flexible and to prevent the states referred to in the known paremia summum ius - summa iniura (see paragraph IV of the resolution of the full composition of the Civil Chamber of the Supreme Court from 18.3.1968. , III CZP 70/66, regarding the application of Articles 56 and 58 of the Environmental Protection Program, OSNCP No. 5/1968, item 77).

In the doctrine, by making axiological justification of the norms included in the rules of social coexistence - after social, economic, political and legislative changes that have occurred in Poland since 1989 - the binding of these norms to ideological content is omitted, and it is emphasized that - according to principles of a democratic state of law and human freedoms respected by them - they refer to values universally recognized in the culture of our society, which are both a heritage and a component of European culture.

The Supreme Court, in the composition of this case, shares the above view and also underlines that in European culture ("Latin") the treatment of man as a person and thus as an autotelic value (the goal "in itself") is accepted, which person can not to be only a means to achieve a goal other than itself, than its "good", i.e. it can not be treated only instrumentally.

Principles of social coexistence in the light of art. 56 KRO should be understood both in a "normative" and "situational" manner in the above sense. This is evidenced by the extensive judicature of the Supreme Court (eg paragraph IV of the Supreme Court resolution dated 18.3.1968).

A refusal of consent to divorce by an innocent spouse is his right and the exercise of this right can not, in principle, be classified as contrary to the principles of social coexistence. The presumption speaks for the fact that the one who uses his right does so in a manner consistent with the principles of social coexistence. You can not also be guided by the presumption,that such a refusal stems from side motives that are not related to the essence of marriage, or for moral negative reasons. Only the existence of special circumstances can overturn the presumptions and allow for the classification of a particular behavior as an abuse of law that does not deserve protection from the point of view of the rules of social coexistence. It should also be borne in mind that the classification of a particular behavior as incompatible with the principles of social coexistence contains elements of a negative moral evaluation.

When it comes to assessing the refusal of consent for divorce from an innocent spouse who deserves more protection, stigmatizing this refusal as contrary to the rules of social coexistence should not take place without the existence of specific and proven circumstances proving the spouse's action solely for intentions of harassment , under the influence of feelings of revenge and hatred towards the spouse (see the judgments of the Supreme Court of 7.12.1965, III CR 278/65, OSNCP No. 7-8 / 1966, item 130, and from 18.7.1965, III CR 147/65, OSPiKA No. 4/1966, item 93).

Even the lack of consent for a divorce motivated only by a real sense of harm to the defendant does not give rise to a plea of contradiction of the refusal with the principles of social coexistence, because marriage is based on the assumption of durability (judgment of the Supreme Court of 13.3.1998, I CKN 539/97, unpublished) ). The existence of a new factual link can not be attributed to the significance of the premise determining the positive or negative application of art. 56 § 3 of the sentence the last KRO. A divorce decree, at the request of a spouse who is solely guilty, without the consent of the other spouse, can only be exceptionally compatible with the social interest. Recognition of the lack of such consent as contrary to the principles of social coexistence "(...) should take place when in certain circumstances there are no reasons for the legislator, introducing the prohibition of divorce at the request of the spouse only guilty, i.e. when there are no grounds to accept that the divorce decree may cause undesirable socio-educational effects in the discipline of family relations "(from paragraph IV of the resolution of the full composition of the Civil Chamber of the Supreme Court of 18.3.1968, III CZP 70/66). The above principles, in connection with the realities of the case being examined, do not allow the grounds for cassation to be recognized as justifiable in the form of an allegation of an erroneous interpretation of art. 56 § 3 of the sentence the last KRO.

The plaintiff did not show that there were special circumstances indicating that the defendant, refusing to consent to a divorce, acts only in intentions of harassment, under the influence of feelings of revenge and hatred towards him, as a spouse solely guilty of the breakdown of his marriage.

In established circumstances (described above) the sense of wrongdoing by the defendant is real and justified. The defendant also did a lot to give birth to a child whose reason - as he claims - he wanted. Lack of effectiveness of these efforts can not burden her. The plaintiff did not accept the proposal of the defendant for the joint adoption of a child. In this situation, the plaintiffs should be able to live with Mariola M., even if he treated as sincere motives (the desire to "have" a child) this behavior must be assessed negatively, because he fails to fulfill his obligations of fidelity and marital loyalty (Article 23 KRO). The desire of a spouse to "have" a child that he can not have from a marital relationship does not justify his betrayal of marriage. This was important for attributing the reason for the breakdown of life, but it is also indifferent to assess - in the light of the principles of social coexistence - the defendant's refusal to consent to divorce, since it took the above-mentioned efforts for a child or adopted. What's more, it was established that the plaintiff coexisted with his wife and concubine at the same time, which testifies to the instrumental treatment of his wife.

When considering the compatibility assessment of a refusal to consent to divorce with the principles of social coexistence, if the spouse requesting a divorce is solely liable for an extramarital child, the legal situation of the child who under the KRO does not show significant differences in relation to the situation of children from marriage should not be taken into account but - the life situation of this child, connected with those benefits that gives the child the opportunity to grow up in a permanently existing family, based on the marital relationship of parents (see judgment of the Supreme Court of 1.2.1957, I CR 436/56, OSN No. 2/1958, item 41).

The plaintiff has a few-year-old child born out of wedlock, who has been recognized and lives in a concubinage with his mother. Alleging that because of the good of this child, the refusal of the defendant's consent to divorce should be assessed as contrary to the principles of social coexistence, he should have shown how beneficial the child's life situation will change after marriage with the current concubine. He did not show this, and his claim that he wants to "legalize" the relationship with the concubine, seems to indicate that he treats marriage as a "formality", while it is a serious legal institution that has many consequences in the spouses' lives as well as in their relations with society.

WITHit follows that the plaintiff has not shown that the ground for cassation in the form of breach is also justified 56 § 3 last sentence KRO.

The present dismissal of divorce proceedings does not mean - as the Appellate Court rightly accepted - "the inability to divorce in the future, either in a changed factual situation or after a period of time when natural emotions, injuries and grievances expire".