Divorce and separation in Poland

Jurisprudence in matters of separation

After the separation, we do not deal with the family in the meaning of the provisions on social assistance. Separation means the breakdown of life - emotional, physical and economic ties.

Judgment

Provincial Administrative Court in Poznań

of August 7, 2008

IV SA / After 321/07

If the separation was confirmed between the spouses, it means that the breakdown of the relationship took place, ie emotional, physical and economic ties have ceased, and therefore it is not possible to speak of a family within the meaning of the provisions on social assistance.

LEX No. 535001

535001

Dz.U.2009.175.1362: art. 6 point 14

Journal of Laws 1964.9.59: art. 61 (1)

Composition

Chairman: Judge of the NSA GrażynaRadzicka.

Judges: NSA Paweł Miładowski (comp.), WSA Bożena Popowska.

Sentence

Voivodship Administrative Court in Poznań, after hearing at the hearing at the hearing on August 7, 2008, on the decision of the Local Government Board of Appeals in K. on 26 February 2007, no SKO - (...) regarding the benefit intentional;

1. dismisses the complaint,

2. grants a lawyer from the State Treasury (Voivodship Administrative Court in Poznań) a remuneration in the amount of 240 (two hundred and forty) PLN increased by the amount of 52.80 (fifty two zlotys 80/100) constituting tax on goods and services - in total 292.80 ( two hundred and ninety-two zlotys 80/100) as a reimbursement of the unpaid legal aid provided to the official website.

Factual justification

By application of October 21, 2006, K. P. approached the Manager of the Social Welfare Center in T. for granting specific benefit in connection with drought in 2006 in the amount of PLN 1,000. In the justification of the application, the complainant stated that he is a farmer under the provisions on farmers' social insurance, subject to this insurance under the Act, damage to agricultural crops and agricultural land on its farm as a result of the drought exceeded 30% and was estimated by the committee appointed by the voivode .

By decision of 19 October 2006, MGOPS (...), acting under the authority of the Mayor of the Commune and Town in T., the Head of the Municipal and Municipal Social Welfare Center in T. (hereinafter the Head of MGOPS) pursuant to art. 18 para. 1 point 4, art. 14, art. 24 of the Act of 12 March 2004 on Social Welfare (Journal of Laws No. 64, item 593 with amendments -depay) and § 2-6 of the Regulation of the Council of Ministers of 29 August 2006 on detailed conditions of implementation aid program for farms to mitigate the effects of drought (Journal of Laws No. 155, item 1109 - further the regulation of the Council of Ministers), refused to grant the aid to the applicant, indicating that he or she is not subject to any of his family members - according to § 2 point 1 of the Regulation of the Council of Ministers - farmers' social insurance under the Act. By decision of 13 December 2006, SKO - (...) The Local Government Appeal Court in K. (hereinafter referred to as SKO) after hearing the applicant's appeal, quashed the contested decision in its entirety and remitted the case.

By decision of 25 January 2007, M-GOPS - (...) The head of MGOPS once again refused the applicant the granting of a single special-purpose allowance under the farm aid scheme to mitigate the effects of drought, indicating that the applicant was not subject to farmers' social insurance under the Act because he acquired the right to an annuity benefit from ZUS.

The applicant appealed against the abovementioned decision by claiming that his wife J. P. was subject to social insurance for farmers.

By decision of 26 February 2007, SKO - (...) SKO upheld the contested decision. In the explanatory memorandum, the authority indicated that the evidence collected by the authority in the first instance shows that the applicant does not meet one of the criteria required in § 2 of the Council of Ministers, i.e. it is not subject to social insurance for farmers, because it receives a pension from ZUS. The authority also indicated that the files contain the verdict of the District Court in K. of 29 December 2004, reference number act No. (...) adjudicating the separation of spouses J. P. and K. P., and that the applicant lives alone in the town of Tamowa, whereas the applicant's wife and their children live in Wymysłów and run a separate household. According to art. 61 § 1 of the Act of 25 February 1964. The Family and Guardianship Code (Journal of Laws No. 9, item 59) the separation judgment has effects such as the dissolution of a marriage by divorce, unless the law provides otherwise. In the opinion of the authority, one of the consequences of the separation is, inter alia, the separation of assets. Since both the Party and the wife live separately, run separate farms, the separation is legally valid, the party can not claim that if the wife is insured, he as the applicant fulfills the criteria. On the above decision, by letter of 7 March 2007, K. P. lodged a complaint with the Voivodship Administrative Court in Poznań, claiming that the SKO's decision was inconsistent with Polish law. In response to the complaint, the Local Government Board of Appeal appealed against its subjectionby limiting the arguments contained in the contested decision.

By a letter dated 26 May 2008, the attorney appointed ex officio underlined that in the complainant's opinion there are grounds for granting the special-purpose allowance, because he keeps the family from the farm. The plenipotentiary also stated that the separation does not deprive the family attribute.

Legal justification

The Provincial Administrative Court considered the following:

The complaint turned out to be unfounded.

Administrative court control, in accordance with art. 1 § 1 and 2 of the Act of 25 July 2002. The Law on the System of Administrative Courts (Journal of Laws No. 153, item 1269, as amended) and art. 3 § 1 and § 2 point 1 of the Act of 30 August 2002. The law on proceedings before administrative courts (Journal of Laws No. 153, item 1270, as amended - hereinafter p.p.S.a.) consists in examining the lawfulness of the contested administrative acts. This control boils down to examining whether in the course of the case the public administration authorities did not violate the substantive and procedural law to the extent that could affect the outcome of the case. Based on Article. 134 § 1 p.p.a., the principle of officiality applies in the court-administrative proceedings. According to its content, the court is not bound by any complaints or motions and the legal basis established. This means that the court is obliged to take into consideration any violation of law, including those that are not raised in the complaint.

The Provincial Administrative Court, recognizing the case in the cognized discipline, stated that the contested decision and the previous decision were issued in accordance with the applicable legal provisions as of the date of their issue.

The subject of the judicial review in the present case is the assessment of the legality of the SKO decision to uphold the decision of the Head of MGOPS refusing to grant the claimant social assistance benefit in connection with the drought in 2006.

The substantive legal basis of the decision contained in this decision were the provisions of the Regulation

Of the Council of Ministers issued on the basis of art. 24 sec. 2 u.p.s.

Pursuant to art. 24 sec. 1 and par. 2 u.p.s. The Council of Ministers may adopt a government social assistance program aimed at protecting the lives of people, families and social groups as well as developing specialist support. The legislator therefore authorized the Council of Ministers to define detailed conditions for the implementation of the assistance program, taking into account the need to ensure the effectiveness of the government social assistance program.

In accordance with § 2 of the Regulation of the Council of Ministers, assistance is given to an agricultural family if:

1. at least one person in this family is a farmer, within the meaning of the provisions on farmers' social insurance, who is subject to this insurance under the law;

2. on the farm, within the meaning of the provisions on agricultural tax, in which damage to agricultural crops caused by drought, estimated by the committee appointed by the voivode pursuant to § 20 para. 3 of the Regulation of the Council of Ministers of 30 January 1996 on detailed directions of activities of the Agency for Restructuring and Modernization of Agriculture and the ways of their implementation (Journal of Laws No. 16, item 82, as amended), amount to over 30% on average.

As is clear from the wording of § 2 of the Regulation, in order to benefit from the farm assistance program to mitigate the effects of drought, all these conditions must be met jointly, which means that failure to comply with one of the conditions excludes the possibility of granting a special purpose allowance to mitigate the effects of drought.

It should be pointed out here that the judgment of March 31, 2008, Ref. No. P 20/07, the Constitutional Tribunal stated that § 2 point 1 of the Regulation of the Council of Ministers to the extent it excludes the application of the provisions of the Regulation to farmers subject to social insurance on request and not pursuant to the Act, complies with Art. 2 and art. 32 of the Constitution of the Republic of Poland (Journal of Laws No. 57, item 350).

Making, therefore, assessing the legality of the contested decision with the content of the provision, whose constitutionality was confirmed in the Constitutional Tribunal judgment cited, should be divided the position of adjudicating authorities in the matter that the applicant is not a farmer, under the provisions on farmers' social insurance, which is subject to this insurance by virtue of Act. At the same time, it should be explained that by virtue of the provision of art. 1 point 2 point 1 and 2 of the Act of 20 December 1990 on social insurance for farmers (Journal of Laws of 1998 No. 7, item 25, as amended), farmers' social insurance covers accident, sickness and maternity insurance as well as pension insurance. disability.

According to the provisions of art. 7 par. 1 of this Act, accident, sickness and maternity insurance are subject to the law:

1. a farmer whose holding covers an area of agricultural land exceeding 1 hectare or a special section,

2. household member of the farmer, referred to in point 1 - if this farmer or household member is not subject to another social insurance or no fixed entitlement to a retirement or disability pension or no established right to social security benefits.

In turn according toArt. 16 sec. 1. of the Act on social insurance for farmers, pension insurance is subject to the law:

1. a farmer whose holding covers an area of agricultural land exceeding 1 hectare or a special section,

2. household member, referred to in point 1,

3. a person receiving a structural pension co-financed from the funds of the Guarantee Section of the European Agricultural Guidance and Guarantee Fund,

4. the spouse of the person referred to in point 3, if the structural pension co-financed from the means of the Guarantee Section of the European Agricultural Guidance and Guarantee Fund is paid together with the allowance for this spouse.

However, farmers or household members subject to other social insurance or having a fixed right to a retirement or disability pension or having a fixed right to social security benefits are not subject to this insurance (Article 7 paragraph 1 and Article 16 paragraphs 1 and 3 of the Act of 20 December 1990 on farmers' social insurance).

Therefore, assistance for mitigating the effects of drought is not available to insured persons on application, to persons who pay contributions to the Social Insurance Institution, to pensioners and also to persons who receive other benefits from social insurance.

In view of the above, since the applicant collects an annuity benefit from the Social Security Institution, it is not subject to social insurance for farmers under the Act, and thus does not fulfill the condition referred to in § 2 point 1 of the Regulation of the Council of Ministers.

The position of the authority is also accurate, that the applicant can not derive his rights from the rights of his wife since he is separated from her. Admittedly, § 2 point 1 of the ordinance of the Council of Ministers indicates that assistance is granted to an agricultural family if at least one person in the family is a farmer, in the meaning of the provisions on farmers' social insurance, which is subject to this insurance under the Act.

In the absence of a regulation of the Council of Ministers, clarification of the term "family" should refer to the definition contained in the Act on social assistance on the basis of which the ordinance of the Council of Ministers was issued. In addition, reaching the definition contained in u.p.s. it is justified by the fact that pursuant to § 3 para. 1 of the ordinance of the Council of Ministers, the aid is granted once, in the form of a special-purpose allowance granted on the terms specified in art. 40 para. 2 and 3 u.p.s.

According to art. 6 point 14 u.p.s. family are relatives or non-related persons who are in a real relationship, who live together and who live together.

In the present case, there is no doubt that the applicant does not live or manage together with his wife who is subject to social insurance for farmers.

The above is supported by the fact that the applicant's wife lives with the children separately in another locality (proof of registration certificate) and the fact that the applicant remains with his wife separated (judgment of the District Court in K. of 29 December 2004 file reference number (...)).

He rightly observed the body in the contested decision that, in accordance with the provisions of the Family and Guardianship Code of 25 February 1964 (Journal of Laws No. 9, item 59, with subsequent deaths), the separation judgment has effects such as the dissolution of the marriage by divorce, unless the law provides otherwise.

Pursuant to Article 611 § 1 of the Penal Code, if the spouses have a complete breakdown of their marriage, each spouse may demand that the court adjudicate for separation.

The essence of the distribution of marital life was defined by the Supreme Court in the guidelines of May 28, 1955, I CO 5/55, OSN 1955, item 46, as follows:

"Marital life expresses itself in a special kind of spiritual, physical and economic community." In principle, the termination of any of the elements of this community should be regarded as a symptom of decomposition, but the cessation of the physical or economic community may not be a decomposition symptom in a particular case if it results from circumstances The example of such a situation may be the termination of physical intercourse as a result of the spouse's illness, separation of spouses caused by a stay in a hospital, long-term business trip, gainful employment of spouses in various distant places etc. Lack of community spiritual (its existence can be manifested only in correspondence) will always be a symptom of the decay of life. "

In addition, pursuant to art. 54 § 1 k.r.o. the separation judgment results in the separation of property between the spouses.

Therefore, since the separation was confirmed between the spouses, it means that the breakdown of the relationship took place, ie the emotional, physical and economic ties have ceased, and therefore, in the case of the applicant and his spouse, it is impossible to speak about family within the meaning of the provisions on social assistance.

For this reason, in view of the fact that the applicant or any of his family members are not subject to social insurance for farmers by virtue of the Act, the allowance for mitigating the effects of drought can not be granted because the condition for granting this allowance laid down in § 2 point 1 of the Regulation has not been metof the Council of Ministers.

In conclusion, it should be stated that the authorities correctly established the facts of the case and analyzed the evidence collected on the matter in accordance with the principles set out in Article 7, 77 § 1 k.p.a.

In connection with the above, the Provincial Administrative Court on the basis of art. 151 p.p.s.a. dismissed the complaint. The costs of the proceedings were awarded on the basis of art. 250 p.p.s.a. and § 18 para. 1 point 1 lit. c, § 19 point 1 in conj. from § 2 para. 3 of the Regulation of the Minister of Justice of 28 September 2002 on fees for lawyer's duties and incurring by the State Treasury the costs of unpaid legal aid granted ex officio (Journal of Laws of 2002, No. 163, item 1348).