Divorce and separation in Poland

As regards the maintenance obligation, separation does not change the relationship between spouses

Judgment

Provincial Administrative Court in Bydgoszcz

of September 29, 2010

II SA / Bd 797/10

The maintenance obligation does not cease at the moment of separating. The illness and disability of a spouse who is separated with full forcefulness should be recognized as a circumstance of fairness referred to in art. 614 § 3 k.r.o.

LEX No. 752179

752179

Journal of Laws 2006, 1993: art. 17 sec. 1 point 2

Journal of Laws 1964.9.59: art. 61 (4) § 3

Composition

Chairman: Judge of the Administrative Board Anna Klotz.

WSA judges: Wojciech Jarzembski (comp.), Jarosław Wichrowski.

Sentence

Voivodship Administrative Court in Bydgoszcz, after hearing the case of the MS complaint against the decision of the Local Government Board of Appeal in (...) dated on (...) June 2010 No. (...) at the hearing on 29 September 2010 . on the nursing benefit:

1. repeals the appealed decision and the decision of the Mayor preceding it (...) dated (...) April 2010 no (...),

2. Notes that the contested decision is not enforceable.

Factual justification

By decision of (...) No. (...) Self-government Appeal Court in T., pursuant to art. 3 point 21 lit. b, art. 17 sec. 1 and 2 of the Act of November 28, 2003 on family benefits (Journal of Laws of 2006 No. 139, item 992, as amended), art. 614 § 1 of the Act of February 25, the Family and Guardianship Code (Journal of Laws No. 9, item 59, as amended) and art. 138 § 1 point 1 k.p.a. it upheld the decision of (...) No. (...), which Mayor C. refused to grant Ms. Sr. nursing benefit due to resignation from employment or other work in connection with the care of an adult, requested by M.

The appeal body indicated that pursuant to art. 17 sec. 5 point 2a of the Act on family benefits, nursing benefit is not payable if the person requesting care is married, while claiming that the condition for granting the benefit is the existence of a maintenance obligation. The SKO also pointed to the fact that the applicant's husband was paralyzed and unable to live independently, as well as the fact that the verdict of the District Court in T. of (...)., Reference number raised in the appeal against the decision of Mayor C. . (...) the separation was confirmed for the spouses of M. and M. S. Therefore, as indicated by the second instance authority, because during the separation the maintenance obligation referred to in art. 23 k.r.o. therefore, the obligation of mutual assistance to the spouses ceases, so the requested benefit should have been refused.

In the complaint, M. S. said that since [...] she has been taking care of a disabled husband with whom she is separated from [...]. The applicant indicated that, on the advice of an employee of the ILO in C., she had signed off from the Labor Office there, and was therefore destitute.

In response to the complaint, the authority asked for its dismissal, maintaining the arguments contained in the text of its decision.

Legal justification

The Provincial Administrative Court considered the following:

The complaint is legitimate and as such deserves to be taken into account, as the authorities ruling in the case infringed substantive law to a degree affecting the outcome of the case.

Against the background of the interpretation of art. 17 of the Act on family benefits (Journal of Laws of 2006 No. 139, item 992, as amended) has recently led to several significant changes. The driving force behind this phenomenon was the position of the Constitutional Tribunal, which in its judgment of 18 July 2008 issued in case no. act P 27/07 The Constitutional Tribunal has ruled that the previously cited art. 17 sec. 1 of the Act on family benefits to the extent that it makes it impossible to acquire the right to care allowance burdened with alimony obligation to a person capable of work, not employed due to the need to care for a disabled family member other than her child, is inconsistent with art. 32 para. 1 of the Constitution of the Republic of Poland. As pointed out by the Constitutional Tribunal in the justification to the judgment P 27/07, only the parents obliged to specify alimony and only to grant them the right to benefit, violates the constitutional principle of social equality and justice, understood not in the socio-economic aspect, but referring to social sense of justice, at the same time reconciling the constitutional orders for protection and care for the family, expressed in art. 18 of the Constitution of the Republic of Poland. The position of the Constitutional Tribunal is a continuation of the adopted jurisprudence line, as already the judgment of November 15, 2006, Ref. No. P 23/05 the Court stressed that the right to apply for nursing benefit must be derived from the maintenance obligation referred to in art. 128 k.r.o. As indicated by the Constitutional Tribunal - the maintenance obligation comes down to the obligation to provide means of subsistence (sometimes also means of education) and relegates relatives in a straight line (descendants and introductory ones) and siblings (Article 128 of the current year). According to this interpretation, it is justifiedIt also turns out that the nursing benefit should also be awarded to the spouse if the other conditions are met, which, as a rule, condition the possibility of applying for this type of benefit. This position is presented by the Supreme Administrative Court advocating for the necessity of lecturing these provisions in accordance with the Constitution (eg the judgment of the Supreme Administrative Court of 26 March 2010, reference number I OSK 1668/09, judgment of 26 April 2010, file reference number I OSK 61/10, judgment of 12 January 2010, reference number I OSK 1105/09). In this case, MS filed for nursing benefit due to resignation from employment or other gainful employment in connection with the need to care for a disabled husband, MS The applicant's husband's disability remains an unquestionable issue, because the case file is dated as of ... .) the decision of the Poviat Disability Assessment Team in T., classifying MS to a significant degree of disability from (...). Moreover, the fact that the judgment of the District Court in T. of (...) (file reference (...)) between M. S. and M. S. was adjudicated is undisputed. From the second of these facts, the authority concluded a refusal to grant the applicant a nursing benefit, in accordance with the authority's assertion, the separation ruling results in the termination of the alimony obligation towards the spouse.

It is impossible to agree with this position. The maintenance obligation referred to in art. 17 sec. 1 of the Act on family benefits, was introduced to this act by virtue of art. 1 point 8 lit. and the Act of 17 October 2008 amending the act on family benefits (Journal of Laws No. 223, item 1456), and then by virtue of art. 13 of the Act of 19 November 2009 amending certain acts related to the implementation of budget expenditures (Journal of Laws No. 219, item 1706) clarified. The Act explicitly refers to the definition included in the current year of law, which reads as follows: the obligation to provide means of subsistence and, if necessary, also upbringing measures (maintenance obligation), charges relatives in a straight line and siblings (Article 128 of the Act).

The maintenance obligation arises from family ties. It aims to provide the necessary means of support and upbringing to family members, which thus consolidates and strengthens mutual relations. The maintenance obligation burden the relatives in a straight line, and siblings in the sideline. The maintenance obligation also encumbers spouses who are not related persons. Therefore, as noted by the Provincial Administrative Court in Łódź in the judgment of 20 August 2009 (reference number II SA / Łd 223/09), the obligation to care for a family member can not be derived only from the alimony obligation referred to in art. 128 a year, but also from the content of art. 23 and art. 27 of this Code, in the light of which spouses are obliged to cooperate for the good of the family and to meet the needs of the family, which they founded through their union and, importantly, mutual help, which should be understood as help in exceptional situations, which is a disease or disability. The obligation of mutual maintenance towards spouses arises at the moment of marriage and does not expire at the moment of divorce. In connection with the fact that the separation institution applies, in principle, the provisions on divorce, it should be assumed that the maintenance obligation does not cease also at the time of separation. As it results from the content of art. 614 § 1 k.r.o. the separation judgment has effects such as the dissolution of the marriage by divorce, unless the law provides otherwise. At the same time, according to § 4 of the said article, the obligation to provide livelihoods by one of the spouses separated from each other is subject to the provisions of Art. 60, therefore, in accordance with art. 60 § 1 k.r.o. a divorced spouse who has not been found guilty of decay and who is in need, may demand divorced from the other spouse to provide the means of subsistence to the extent corresponding to the legitimate needs of the entitled and the earning and property opportunities of the obligee. In addition, pursuant to art. 614 § 3 if it is justified, the spouses who are separated are obliged to mutual assistance.

As it results from the sentence of the judgment of the District Court in the court adjudicating the separation between M. S. and M. S., the separation between the spouses was adjudicated without the verdict of guilt. Therefore, since the person guilty of the breakdown of the marriage has not been established in the case at hand, there is no obstacle to the recognition that one spouse should show help to another person, especially due to the situation in which the other spouse was found. As the applicant pointed out, her husband after the accident is a paralyzed person, so it is difficult to recognize that a person suffering with such a serious disability is able to work and own maintenance, especially