WARNING !!! automatic translation from Polish
VIII 2023 r.
Consequences of withdrawing the spouse's consent to separation in an appeal without adjudicating guilt
In the decision I ACa 842/00, the Court of Appeal in Katowice stated that if the spouse's consent to omitting the guilt decision in the separation decision was withdrawn in the appeal, Art. 5672 § 2 of the Code of Civil Procedure, according to which the court decides to discontinue the proceedings in the case.
The decision of the Katowice court in question ended the appeal proceedings in the case in which the husband applied for a separation order, and in the course of the conciliation proceedings his wife also joined the application, expressing her consent to the separation. The first-instance court accepted the joint application of both spouses, but after the judgment was issued, the wife - a participant in the proceedings - appealed against it, claiming that she was not aware of the consequences of the declaration, in particular that she consented to the separation without the court adjudicating on the guilt of to the breakdown of marriage. In the appeal, the participant demanded that her husband be found solely guilty.
The appellate court emphasized that pursuant to Art. 613 § 2 of the Family and Guardianship Code, the court adjudicating the separation does not decide on the fault as to the breakdown of the marriage only when there is a joint request of the spouses for a separation order. Compatibility of the request must exist not only at the time of submitting the application for separation, but also at the time of the court's decision. The request may also be withdrawn, also after the judgment has been passed - by way of an appeal by either of the spouses. Then the basis for the court to refrain from adjudicating on guilt as to the breakdown of the marriage, as was the case in the present case, disappears.
In such a situation, Art. 5672 § 2 of the Code of Civil Procedure, from which it follows that in the case of separation at the joint request of the spouses, if the previously submitted request is withdrawn or if either of the spouses expresses otherwise no consent to the separation, the proceedings are discontinued. This provision excludes the application of Art. 512 § 1 of the Code of Civil Procedure, which states that after the meeting begins or after any of the participants submits a written statement, the withdrawal of the request is effective only if the other participants have not objected to it within the time limit set. This means that in this case, the withdrawal of the request does not require the consent of the other spouse.
VII 2023 r.
Obligation to adjudicate on joint residence of spouses
When dissolving an existing marriage, the court makes decisions regarding various aspects of the spouses' previous life together. One of these areas is decisions regarding the use of the spouses' joint apartment. This is stated in Art. 58 § 4 of the Family and Guardianship Code, specifying the premises on which the court decision should be based:
"When ruling on the joint residence of the spouses, the court takes into account, first of all, the needs of the children and the spouse to whom it entrusts the exercise of parental authority." On the basis of the above provision, a problem arose as to whether the phrase: "cohabitation" refers to every case when the court rules on the subject of cohabitation or only the situation when it abolishes the matrimonial community of property. By decision of September 21, 2022, file reference number: I CSK 2590/22, the Supreme Court ruled that the wording of Art. 58 § 4 of the Family and Guardianship Code applies to "From the linguistic interpretation of Art. 58 § 4 k.r.o. it follows that this provision applies to every case where the court rules on the joint residence of the spouses, not only the situation of dissolution of the joint property regime, each case where the court rules on the joint residence of the spouses. The argumentation of the Supreme Court was based on both linguistic and systemic interpretation: "The systemic interpretation also speaks in favor of such an understanding, as this provision was placed in the section regulating the termination of marriage, not the abolition of the statutory matrimonial property regime." In other words, regardless of the regimes existing between the spouses property, the court decision will be based on the provisions of Art. 58 § 4 k.r.o.
VI 2023 r.
Does cohabitation by one ex-spouse exempt the other?
from the maintenance obligation?
In the judgment I CKN 788/97 of 1998, the Supreme Court stated that remaining in cohabitation by a divorced spouse entitled to alimony is not a statutory premise for the expiry of the alimony obligation of the other divorced spouse towards him.
The judgment in question was issued in a case in which the plaintiff demanded maintenance from her ex-husband. The court of first and second instance focused on considering whether the claimant was in need pursuant to Art. 60 § 1 of the Family and Guardianship Code, and it was the existence of this premise that made the award of alimony - ultimately, the alimony payment was awarded by the appellate court. However, in the cassation appeal, the defendant raised a new objection, claiming that the plaintiff was in a cohabitation, and therefore his maintenance obligation towards her had expired. The defendant relied on the broad interpretation of Art. 60 § 3 of the Family and Guardianship Code (which states that the maintenance obligation expires when a divorced person enters into a new marriage), claiming that in practice there is no difference between marriage and cohabitation, so also leaving one of the former spouses in cohabitation should exempt the other from the maintenance obligation.
The Supreme Court rejected the defendant's argument, emphasizing that Art. 60 § 3 k.r.o. expressly mentions the conclusion of a new marriage by the person entitled to a maintenance allowance as a condition for the expiry of this obligation towards him. This provision cannot be interpreted broadly, and the defendant's allegation is not substantively justified. The Supreme Court also emphasized that a negative assessment of the applicable regulations cannot constitute the basis for a cassation appeal.
V 2023 r.
Increasing alimony in a divorce case before the second instance
The Court of Appeal in Kraków, in its judgment of June 15, 2021, reference number I ACa 1006/19, focused on the issue of increasing the maintenance awarded in the divorce judgment. The decision was made as a result of an appeal filed by the claimant. She accused the first-instance court of wrong assessment of the evidence in the case, which contributed to the incorrect assessment of the amount of maintenance due. The plaintiff argued that since the maintenance costs of their minor daughter amounted to approximately PLN 1,400, and the defendant did not exercise personal custody of the child, he should be burdened with a higher maintenance obligation.
At the stage of settling the maintenance obligation, the court of first instance considered that the amount of maintenance remains at the same level as in the security provided, because since then there has been no change in the circumstances affecting the amount of maintenance.
The court of the second instance agreed with the Regional Court that at the time of issuing the divorce judgment, the change of the maintenance allowance in relation to the security would be unjustified. At the same time, he pointed out that pursuant to Art. 445 § 1 of the Code of Civil Procedure, during a divorce or separation case, separate proceedings for alimony between spouses and their minor children cannot be brought. In this context, however, it should also be borne in mind that the decision on the maintenance obligation towards children in a divorce case refers to benefits paid after the divorce judgment becomes final. Consequently, in the case of a request to change the decision on maintenance made pursuant to Art. 138 of the Family and Guardianship Code, the assessment of the fulfillment of the condition for a change in relations should be made from the moment the judgment on the maintenance obligation becomes final, and not from the moment of issuing this judgment, and not from the time of the divorce proceedings.
As a result, the Court of Appeal found that the relationship had changed because, since the divorce judgment became final, the parties' daughter had started attending additional English classes. Inflation and the daughter's growing financial needs also contributed to the change in relations. None of the aforementioned circumstances violated the socio-economic purpose of the right to maintenance. In view of the above, the court of second instance granted the claimant's request to increase the maintenance payments awarded to her daughter from the claimant. That judgment had not been dictated by a poor assessment of the evidence by the Regional Court, but by developments which the latter had not been able to foresee.
IV 2023 r.
Constitutional right to two instances in divorce cases
In the judgment of January 29, 2021, file ref. I CZ 77/20, the Supreme Court ruled that the court of second instance is obliged to refer the case to the court of first instance for re-examination, if the subject of the case is a divorce.
This decision was made on the basis of a complaint against the decision of the court of second instance, i.e. the Court of Appeal, lodged with the Supreme Court by the defendant. The court of first instance - the Regional Court - assessed that the interests of the minor children of the parties preclude the possibility of a divorce and consequently dismissed the lawsuit.
The plaintiff appealed against this judgment, which led to the Court of Appeals ruling that the court of first instance had erred in limiting itself to assessing the welfare of the parties' minor children. Focusing on this one factual element, the Regional Court did not consider the merits of the case. Therefore, the court of the second instance decided to set aside the judgment of the first instance and remit the case for reconsideration.
This decision was contradicted by the defendant, who appealed to the Supreme Court and argued that it was the court of second instance who had incorrectly assessed the judgment of the court of first instance and requested that the case be reconsidered by the Court of Appeal. According to the defendant, the District Court correctly recognized the essence of the case and did not limit itself to the analysis of the children's welfare, but considered this circumstance as a negative premise for the dissolution of the marriage.
When examining the complaint, the Supreme Court first reminded that it is of a formal nature - it is not used to examine the case as to the merits, and thus to assess the validity of the claim, appeal or substantive position of the court of first instance, but to assess whether there were indeed premises for the court of second instance to overturn the judgment court of first instance and referred the case back to it. For this reason, the Supreme Court limited itself to examining whether the court of second instance correctly assessed that the court of first instance had failed to assess the merits of the case. The court stated that a case is not resolved on the merits if the decision does not refer to the actual subject of the case due to the erroneous belief that there is a premise eliminating the claim.
According to the Family and Guardianship Code, the elements of a divorce judgment are: a decision which of the spouses is to blame for the breakdown of the marriage - Art. 57 § 1 of the Agricultural Code, decision on parental authority and contact with the child - art. 58 § 1, sentence 1, and on the use of a shared apartment - art. 58 § 2 sentence one step. Although the court does not rule on these issues if the claim is dismissed, if the court of second instance decides not to uphold the judgment of the court of first instance, the court of second instance needs to make further findings as to the circumstances surrounding the subject matter of the case.
If the court of second instance were to decide on a divorce on its own, it would have to make findings as to the facts and essence of the case from the beginning and classify them accordingly, which would replace the role of the court of first instance. Such a situation is unacceptable, as it would violate the constitutional right to consider a case before two instances. For this reason, the court of second instance in the described situation is obliged to return the case to the court of first instance for reconsideration.
III 2023 r.
Changing the spouse's name after divorce
One of the declarations that the spouses submit to the head of the State Office Civil (or before the consul in exceptional cases), there is a statement related to choosing the surname that each of them will bear from the moment of marriage. Pursuant to the regulation of art. 25 of the Family and Guardianship Code (Act of February 25, 1964 Family and Guardianship Code (i.e. Journal of Laws of 2020, item 1359 - hereinafter: k.r.i.o.), prospective spouses may alternatively, keep your current name, change your name to your last name of the spouse or, as a result of combining both surnames, bear a two-part surname. IN in practice, bearing in mind the principle of equality between spouses, both are left free about choosing your last name. The legislator's provision relating to the "combination" of surnames spouses are interpreted in such a way that they can freely determine the order of individual members, provided, however, that the maximum number of members in the surname will be two. Moreover, in case failure to submit an appropriate declaration, the legislator orders that the spouses remain with previous names. In the event of dissolution of the marriage as a result of divorce, the spouses have the option of returning to names they had before they got married. Art. 59 k.r.i.o. stating that within three months of the divorce decision becoming final a divorced spouse who, as a result of entering into a marriage, has changed his or her previous spouse surname, perhaps by a statement made before the head of the registry office or revert to the name he had before marriage. You should at the same time It should be stressed that the norm cited above constitutes the right of a divorced person spouse. This is indicated, for example, by the linguistic interpretation of the provision in which it is the legislator uses the word "may". This position is confirmed by judgments such as judgment of SA in Katowice of August 6, 2019, file ref. V ACa 147/18 and the decision of the Supreme Court of February 2, 1978, reference number IV CZK 11/78. The adjudicating panels put forward theses stating that "both the husband and wife are equally entitled to bear the surname for which they made a statement on the date contracting a marriage, and the provision of Art. 59 k.r.o. in no way constitutes a basis for to order a divorced spouse to change his name" and that "the ex-husband cannot demand to deprive his ex-wife of the right to the surname acquired by marriage, as the Code family and guardianship does not provide for such a possibility. In view of the above, it should be considered that the effect of a divorce may or may not be there must be a change of surname that the spouses had during the marriage. Surely such a regulation is an expression of granting a large degree of autonomy to the parties to civil law relations, w which is inherent in the marriage relationship.
II 2023 r.
Divorces from the USSR
The decree of February 3, 1947 is the legal basis for recognizing divorces granted on the basis of the provisions of Soviet law by the USSR authorities to Polish citizens in the period from September 1, 1939 to January 29, 1946 in the areas incorporated into the USSR under the agreement on the Polish-Soviet state border from 1946. Such divorces are therefore recognized by law. This regulation is important because it is a special provision in relation to Art. 17 points 3 of the Act on the law applicable to private international relations of 2 August 1926. This article provides that if the authorities of a foreign state did not apply Polish law to the divorce of Polish citizens, then such a divorce decree is not subject to recognition or enforcement in the territory of the Republic of Poland. On the basis of the Decree of 1947, it is possible to recognize a decision issued in the case of Polish citizens, even though the basis for such a decision was foreign law.
I 2023 r.
Finding fault in a divorce case of a spouse who was not found guilty in a prior separation case
In the judgment I ACa 100/21, the Court of Appeal in Kraków ruled that in order to determine the fault of the spouse who was not found guilty of the breakdown of the marriage in the earlier case of the parties for separation, it is not enough to prove his passivity in subsequent behavior, understood as lack of activities aimed at restoring broken marital ties.
This order was issued by a court hearing an appeal against a divorce decree of a married couple who had been separated prior to the commencement of the divorce case. Separation was ordered due to the sole fault of the husband (the claimant in the divorce case), who, without good reason, moved out of the apartment he shared with his wife and children and maintained close contacts with other women. After the separation, the parties did not maintain any contact with each other, and the husband became permanently involved with another woman and moved in with her. After several years of separation, the husband filed for divorce. The court granted the divorce on the sole fault of the plaintiff, arguing that since the formal separation of the parties, he had not taken any steps to save the marriage and had been in relationships with other women. The plaintiff appealed against the judgment.
The appellate court rejected most of the plaintiff's allegations regarding irregularities in determining guilt by the court of first instance, but admitted the plaintiff was right in the claim that the fact that the parties were separated due to the plaintiff's fault does not mean that the divorce was also due to the plaintiff's fault. In order to finally determine the fault in the breakdown of the marriage, it is necessary to assess the behavior of the parties after the separation. It cannot be ruled out that the spouse found solely to blame for the breakdown of the marriage in a separation case, after its ruling, tries to rebuild the broken marriage ties, while the other spouse behaves culpably. However, the court found that such a situation did not occur in the case in question - the sole fault of the husband was evidenced by the fact that after the separation, he did not change his behavior, still remaining in relationships with other women and did not take actions that would imply that he was trying to renew reestablish broken marriage ties.
According to the Court of Appeal, in order to determine the guilt of the spouse who was not found guilty of the breakdown of the marriage in the earlier case of the parties for separation, it is not enough to prove his passivity in later behavior, understood as the lack of activity aimed at restoring broken marital bonds, in order to determine the fault of the spouse in a divorce case. On the basis of the discussed case, the defendant cannot be blamed for the breakdown of the marriage solely on the basis of her failure to rebuild the relationship with her husband, who did not change his behavior after the separation, remained in a relationship with another woman and lived with her all the time. In turn, the defendant, despite the fact that her relationship was separated, remained loyal to the plaintiff and did not enter into extramarital relations.
To sum up: when ruling on the fault of the breakdown of life in a divorce judgment, one cannot automatically assign blame to the spouse who was found solely guilty in the separation case, but one must assess the behavior of the parties after the separation has been issued. However, the lack of efforts to rebuild the relationship by the spouse previously found innocent cannot constitute an independent basis for assigning blame to him for the breakdown of the marriage in the divorce judgment.
XII 2022 r.
The institution of separation in Polish law against the background of European solutions
Undoubtedly, one of the central points of reference for family law as a separate sub-branch of civil law is the institution of divorce and separation. Both of the above issues are one of the main subjects of regulation not only under Polish law, but also in relation to other European systems. It is therefore worth considering the similarities and differences in the assumptions of the Polish legislator and, for example, the French, British, Italian and Spanish legislators. Starting from the legal status that can be dealt with in France, it should be noted that separation is sometimes referred to as "bodily separation". As in Poland, it is an institution separate from divorce. Another convergence is based on the procedural aspect and refers to the situation when the claiming spouse files two lawsuits with the court (one for a divorce, the other for a separation). It is then that the French court, following the example of the Polish one, examines the application for divorce. According to J. Gręźlikowski, the grounds for separation in French law are the mutual consent of the spouses, a long-term break in cohabitation and the fault of the spouse. An interesting thread in the context of French solutions is the ambiguous issue of the obligation to maintain mutual fidelity of separated spouses. However, the dominant view in the literature (M. Świderska) is that the duty of fidelity lasts throughout the duration of the marriage relationship, given the lack of contradiction with the state of separation. The British legal system is also worth analyzing. Like Polish and French legislation, it makes separation an institution independent of divorce. However, the grounds for separation in Great Britain are defined differently than in French and Polish law. These include, alternatively, adultery, abandonment, cruelty, rape or attempted rape, incurable mental disorders, and de facto separation. Pursuant to the regulation of the Polish Family and Guardianship Code (Act of February 25, 1964. Family and Guardianship Code (i.e. Journal of Laws of 2020, item 1359, hereinafter: “k.r.i.o.”), the criterion for separation is the complete breakdown of marital life on the economic, spiritual and physical plane, which is literally referred to in Article 61(1) § 1 of the Family and Guardianship Code. Moreover, in the context of British legislation, it is rather clearly stated that separated spouses are still obliged to Unlike in the above-mentioned legal systems, the dependence of the institution of separation and divorce is regulated in Spanish and Italian law, because in these regions separation is often a kind of "prelude" to divorce, as it is one of the catalysts for the divorce court decision. Separation orders are structured in a way very similar to that of the British legislature, such as: adultery, separation imprisonment for more than three years, imprisonment for more than six years, alcoholism, drug addiction, mental illness, breach of duties towards children or spouse. With regard to the Italian regulation, it is worth mentioning that separation is particularly important here due to the subsequent divorce procedure. The spouses must have been separated for a minimum of 3 years before filing for divorce. In Italy, moreover, there are three types of legal separation - i.e. judicial, consensual and temporary. Concluding, it can be stated that the institution of separation is undoubtedly universal in the law of European countries due to its regulation in their legislation. However, the way in which the legal systems analyzed above treat the discussed issue is not universal. De lege ferenda, it is worth calling for the unification of the developed standards due to, for example, the issue of integration within the EU.
XI 2022 r.
Helping a spouse in separation - considerations of equity
At the unanimous request of the spouses or at the request of one of them, the competent regional court, in the event of a complete breakdown of the marriage - understood as the cessation of emotional, physical and economic ties - is entitled to pronounce the separation. On the basis of this article, we will limit ourselves to legal separation only, not dealing with the actual separation, which depends on the sole will of the spouses (thus not giving rise to legal effects and, at the same time, not abolishing the obligations that have been imposed on the spouses by law). The legislator, who under the Polish constitution was bound by the duty of the environment to protect and take care of the family, decided to introduce two negative premises which make it impossible to issue a separation order. It is about the welfare of minor children and the conflict with the principles of social coexistence.
Basically, legal separation is a self-standing institution of family law, independent of the institution of divorce. The restitution function is indicated as its basic function. However, it is worth pointing to the position of Magdalena Habdas, according to which "the (...) restitution function should not be equated with the fact that the separation is to enable the spouses to return to cohabitation, because the law does not imply that the spouses are obliged to take corrective actions at that time to save relationship. This function consists in the proper shaping of personal and property relations between the spouses in the period when their relationship is in a crisis phase, but it is not impossible to heal the relationship, which may or may not take place. For this reason, one should indicate not so much the restitution function of separation, but its ordering function ”.
In non-contentious proceedings, the court is bound by the parties' request. This means that the court is not empowered to grant a divorce if neither party has requested it. It should be emphasized that divorce takes precedence over separation. Thus, in a situation where two requests for divorce and separation would be filed simultaneously, the court should issue a divorce decree, unless the separation judgment would be the only correct one. At the same time, as a general rule, it was assumed that the legal separation would have the same effects as the dissolution of a marriage by divorce, unless the law provides otherwise. Exceptions were formulated in the same Art. 61  k.r.o. One of them is to maintain the obligation of mutual assistance between spouses.
The obligation of mutual assistance between spouses is of a non-pecuniary nature, it applies to both the material and the non-material zone. As a consequence, it may result in the imposition of the obligation of financial support, but also spiritual, mental or organizational. Maintaining the mutual assistance obligation must be justified on grounds of equity. The attempt to decode the said general clause involves both doctrine and jurisprudence. It is impossible to formulate a closed catalog of situations that can be considered justified on the grounds of equity, as it is necessary to examine the facts each time. For this reason, only as an example should be indicated - following the Provincial Administrative Court in Bydgoszcz, which in the judgment of 29 September 2010 emphasized that "the illness and disability of the separated spouse should be definitely considered a circumstance covered by the considerations of equity, referred to in Art. 61  § 3 k.r.o. " (Judgment of the Provincial Administrative Court in Bydgoszcz of 29 September 2010, II SA / Bd 797/10, LEX No. 752179). On the other hand, "in the facts in which the husband, after serving the sentence of imprisonment, demanded that he be allowed to use the apartment, the tenant of which was his wife, and the separation was ordered through the fault of the husband, who was aggressive and abusing alcohol, the court found that there were no such considerations of fairness. . Despite the fact that the husband was in poor health and had a small income, the court found that he should satisfy his housing needs on his own, e.g. by renting a flat together. In the opinion of the court, it would be difficult to consider it right to allow him to use the apartment in a situation where his aggression and arguments led to the decision of separation due to his fault, and meeting his housing needs is possible, although it will not provide him with comfortable conditions. " (M. Habdas [in:] The Family and Guardianship Code. Commentary, ed. M. Fras, Warsaw 2021, Art. 61 (4)).
When considering the obligation of mutual assistance, it is worth bearing in mind that it should not be equated with the maintenance obligation of separated spouses, nor does it mean that separated spouses are entitled to an equal standard of living.
X 2022 r.
Separation through the fault of the spouse as a basis for excluding him from statutory inheritance from the deceased spouse
Pursuant to Art. 940 of the Civil Code (Act of April 23, 1964 - i.e. Journal of Laws of 2022, item 1360, as amended), the legislator provided for a situation in which during the life of both spouses one of them brought an action for separation through the fault of the other spouse. However, before the ruling in the case was made, the defendant spouse died and his property is subject to the rules of statutory inheritance.
As is known, the entry into all the rights and obligations of the testator in this way is provided for in Polish law in the event that the deceased did not leave a valid will or when he appointed the testator only to a part of the inheritance. Statutory inheritance also applies when the heir, due to inability to inherit, cannot accept the inheritance or does not want to accept it. Of course, it must be borne in mind that using the institution of substitution or increment will disable the path to inheritance according to statutory rules.
Nevertheless, the subject of this study is not the regulation relating to the methods of acquiring inheritance, but the issue on the borderline of family law and inheritance law, i.e. the issue of excluding from inheritance a spouse whose spouse died during the separation proceedings due to the fault of the defendant. Firstly, it should be remembered that as a result of the claimant's death, the process is discontinued, as a result of which the court does not order the spouses to separate if one of them dies before the sentence is passed. However, it is possible to apply to the defendant the institution in the form of conviction, which in turn leads to the launch of a specific sanction, which is the exclusion from inheritance of the deceased spouse. The judgment in which the court makes such a decision is a consequence of an application from an heir who inherits by statute with the defendant spouse. The time limit for bringing an action is six months from the date on which the heir learned about the opening of the estate, but no more than one year from the opening of the estate. As indicated by the Supreme Court in the judgment of April 12, 2002 (the judgment of the Supreme Court of April 12, 2002, I CKN 1345/99, LEX No. 55556), the time limits specified in Art. 940 § 2 of the Civil Code belong to the category of tight deadlines. The lapse of such time-limits entails the expiry of a time-limited entitlement. In the opinion of the Supreme Court, the possibility of applying the provisions on the limitation of property claims to such time limits (Art. 117 et seq. CC) is, in the opinion of the Supreme Court, controversial. The court does not decide unequivocally on this issue, but emphasizes that with regard to the time limits specified in Art. 940 § 2 of the Civil Code there are no arguments for allowing such a possibility. Against such
On the other hand, according to the adjudicating panel, the action is justified by the fact that the order of inheritance should be determined and definitively as soon as possible.
Summarizing the above, it is necessary to conclude about the purposeful action of the legislator, which takes into account the actual relations between spouses. Thus, it prevents a situation in which the property of the deceased spouse would be unjustly transferred to the other spouse who was guilty of the breakdown of the marriage. Polish inheritance law makes the position of the spouse-heir clearly strong, taking it into account at three levels of statutory inheritance out of the five distinguished by the doctrine. Art. 940 of the Civil Code is supposed to eliminate the potential contradiction of inheritance with the principles of social coexistence. It should be remembered, however, that the court should always check whether the request of the spouse bringing the legal separation suit was justified, which is clearly emphasized by the legislator in § 1 of the above-mentioned art.
IX 2022 r.
Regulation of Art. 361 k.r.o.
Art. 361 of the Family and Guardianship Code introduces the institution of the spouse's objection to the management of the joint property of the other spouse. Pursuant to § 1 of the provision, the spouse may oppose the activities of the management of the joint property intended by the other spouse, with the exception of activities in everyday matters or aimed at satisfying the family's ordinary needs or undertaken as part of a gainful activity. In the further part of the provision, the legislator additionally emphasizes that the objection is effective against a third party, provided that it could become acquainted with it before making a legal act.
The legislator does not regulate sanctions for performing a legal act despite the objection raised. The literature agrees that in such a case it should be assumed that the legal act is absolutely invalid (Art. 58 § 1 of the Civil Code) as contrary to the act (B. Kubica [in:] Family and Guardianship Code. Comment, edited by M. Fras, M. Habdas, Warsaw 2021, article 36 (1).).
It is worth referring here to the judgment of the Court of Appeal in Katowice of February 20, 2009, I ACa 32/09, in which the adjudicating panel undertook a broader interpretation of the provision under analysis. Pursuant to SA's thesis, the form of the spouse's objection was not clearly defined by the legislator. Nevertheless, the will of the spouse should be clearly articulated, which means that it should be expressed in such a way that it could be read by the counterparty of the intended activity. The aim of the person who wants to oppose the act intended by the other spouse is therefore to take such actions to inform the third person about his position.
The attention of the doctrine often focuses on the relation of art. 361 and art. 37 k.r.o. Some authors indicate that the objection can be applied both in the situations indicated in Art. 37 k.r.o. as well as all the others (except those that have been explicitly excluded), while others argue that the objection does not apply to legal acts for which the obligatory consent of the spouse is required.
Finally, it should be noted that the meaning of the objection referred to in Art. 361 k.r.o. has relatively little practical significance. The objection may only be effectively applied to the intended activity and not to the one already performed. This means that the other spouse is really unable to raise an objection if he does not know about the plans to perform the action (which he can often find out only from the other spouse).
VIII 2022 r.
Art. 58 § 2 of the Civil Code - eviction order against one of the spouses in a divorce decree
Article 58 (2) of the Act of February 25, 1964 - Family and Guardianship Code (i.e. Journal of Laws of 2020, item 1359) - hereinafter referred to as they inhabit each other. The legislator then orders the court to rule in the divorce decree on the use of this flat for the time that the former spouses will still live in it. Zd. 2 of the quoted Art. on the other hand, it regulates the possibility of ordering eviction against one of the spouses, when this grossly reprehensible behavior makes it impossible to live together. A broad interpretation of the said provision is to be prevented by the term "in exceptional cases" used by the legislator, which determines the specific nature of the situation mentioned by the legislator.
Directive on the strict interpretation of Art. 58 § 2 sentence 2 k.r.o. seem to confirm the theses formulated by the jurisprudence of the Supreme Court (hereinafter - the Supreme Court) and common courts. In the judgment of 30 October 2019, reference number I ACa 1209/18 SA in Kraków, he clearly emphasized the need for a restrictive interpretation of the provision under analysis. It considered that such a necessity meant that this provision could be applied exceptionally, only when one of the spouses not only acts in a grossly reprehensible manner towards the other using the shared flat, but this behavior, deserving an unequivocally negative, objective assessment, strictly evokes specific effect. This effect is the complete exclusion of the possibility of the spouse using the apartment in accordance with its purpose. There must be an adequate causal link between the exclusion of this possibility on his side and the behavior of the potentially evicted person.
The interpretation of the statutory grounds for eviction, as confirmed by the Supreme Court, should be as specific as possible in relation to the existing facts. In the judgment of 25 January 2001, IV CKN 1511/00, the adjudicating panel on the basis of the case under consideration decided that the presence of the defendant at home was a source of constant tension, a threat to the peace and safety of the household members, without any detailed characteristics of his behavior justifying such an assessment, does not allow for the recognition of the subsumption made by the claimant as correct, because the application of Art. 58 § 2 sentence 2 k.r.o. requires the occurrence in the facts of only such proceedings of the defendant, which is explicitly provided for in this provision.
Moreover, the jurisprudence states that the request to evict one of the spouses after the divorce has been pronounced should not, in its effect, replace the decision concerning the division of marital property. Allowing such a possibility could also result in inconsistency in court decisions in various types of proceedings. It cannot be ruled out that in a case for the division of marital property, a flat would be assigned to, for example, a divorced spouse who would be obliged to leave it on the basis of an eviction order ordering it to be issued to a person who, at the same time, no longer has a legal title to use the flat as a result of the division of property. of the acquis communautaire (judgment of the Supreme Court of 27 October 2006, I CSK 190/06).
Normative analysis of Art. 58 § 2 sentence 2 k.r.o., conducted in the Commentary to the k.r.o. edited by K. Piasecki from 2002. Ed. 2, leads additionally to two important conclusions. First, the literature indicates the material-legal and procedural nature of the provision. A procedural one in the sense that it allows for the eviction of one of the spouses in a divorce decree. In the substantive legal context, the provision introduces an independent basis for eviction, although similar to that of Art. 685 of the Civil Code. and art. 13 of the Act of June 21, 2001 on the protection of the rights of tenants in the municipal housing stock and on the amendment to the Civil Code. This basis, however, is more rigorous compared to the prerequisites from the century century, because, as stated by the Supreme Court (thesis VI (1) of the guidelines of the Supreme Court of 1978), its application is limited to grossly reprehensible conduct. This grossly reprehensible conduct occurs especially when the constant abuse of alcohol by one of the spouses, causing fights and committing acts of violence constitute a threat to the life, health or peace of the other spouse and other family members (SN hereinafter). Secondly, the substantive meaning of the provision consists in the fact that it allows the spouse to be evicted regardless of the legal title the spouses have to live in. (ownership, cooperative right to premises ...). As indicated in the doctrine, the concept of a shared flat when it comes to ordering the said eviction does not include the flat belonging to the separate property of the spouse against which the eviction decision is directed, as well as the flat allocated to such a spouse solely in connection with the function performed by him.
The second most relevant at the end of the text of Art. 58 § 2 sentence 2 of the CC on the conclusion identified in the literature is an indication of the relationship between the indicated regulation and the institution of property rights under civil law. It should be remembered that Art. 58 par. 2 sentence 2 does not constitute grounds for depriving one of the spouses, who is the owner of the apartment, of the rights he is entitled to under Art. 140 and 222 of the Civil Code, i.e. provisions indicating that, within the limits set out by statutes and rules of social coexistence, the owner may, with the exception of other people, use things in accordance with the socio-economic purpose of his right, in particular, he may collect benefits and other income from things, and the fact that the owner may demand from the person who actually owns his thing that the thing be delivered to him, unless the person is entitled to the owner of an effective right to use the thing.
It is also interesting that if the divorce decree did not adjudicate the eviction - each of the divorced spouses may request the eviction of the other spouse only with reference to the grounds provided for in the Civil Code. and the act on the protection of the rights of tenants in the municipal housing stock and on the amendment of the civil code.
VII 2022 r.
Hearing the parties in divorce or separation proceedings
Pursuant to Art. 299 of the Code of Civil Procedure The court may admit evidence from hearing the parties only after the evidence has been exhausted or, in the absence of evidence, if there are still unexplained facts relevant to the resolution of the case. This is called the principle of subsidiarity of proof. However, in the matter of divorce or separation, there is a significant deviation from the above-mentioned rule. This means that then Art. 432 of the Code of Civil Procedure, and not Art. 299 known to ordinary civil proceedings. Art.432 of the Code of Civil Procedure stipulates that the court orders the taking of evidence by hearing the parties in any divorce or legal separation case. It clearly follows from the content of the above-mentioned provision that in divorce cases, evidence from the hearing of the parties is obligatory not only in the sense of admitting this evidence, but also its taking, which is confirmed by the thesis of the judgment of the Supreme Court of 5.03.1999. I CKN 1063/97. Moreover, appointed (in Article 432 of the Code of Civil Procedure), Art. 302 § 1 of the Code of Civil Procedure means that when, for reasons of factual or legal nature, only one party may be examined as to the disputable circumstances, the court will assess whether that party should be heard anyway, or whether this evidence should be omitted completely. The court will do the same if the other party or some of your fellow participants have failed to appear or refused to testify. The judgment of the Supreme Court of 5 March 1999. I CKN 1063/97 indicates that in the case law of the Supreme Court (see the judgment of June 20, 1952, C 1339/51, OSN 1953, No. 4, item 100) in a divorce case, the principle of hearing one party, and not resignation from evidence from the hearing of the parties, if there are factual or legal obstacles to the hearing of both parties or one of the parties did not appear for the hearing. The situation was also explained (see the judgment of the Supreme Court of July 21, 1958, 1 CR 337/57, OSPiKA 1959, No. 7-8, item 202) that if the party summoned to the hearing does not appear, the hearing may be omitted. only after the court has established the reasons for the failure to appear.
It is also worth paying attention to art. 442 of the Code of Civil Procedure in accordance with the content of which, if the defendant accepts the claim and the spouses do not have minor children in common, the court may limit the evidentiary proceedings to hearing the parties. It should be noted that if it is possible to hear only one party as to the disputable circumstances, the aforementioned Art. 442 does not exclude the regulation discussed above from Art. 302 § 1 of the Code of Civil Procedure The content of the provision of art. 442 of the Code of Civil Procedure it is only an option, and not an obligation, to limit the taking of evidence. At the same time, this provision does not establish an additional negative divorce premise, which would be a prohibition on declaring a divorce, if in a pending case for divorce between spouses who have minor children in common, no other evidence, apart from evidence from the hearing of the parties, is submitted, which is clearly emphasized in the justification of the judgment by the Court of Appeal. in Łódź on December 13, 1995 I ACr 557/95.
VI 2022 r.
Eviction of an aggressive spouse from the apartment
- In the event of a conflict between the spouses, violence is sometimes involved
- It is worth knowing that pursuant to Art. 11a of the Act of July 29, 2005 on Counteracting Domestic Violence (Journal of Laws of 2021, item 1249), if a family member living together makes living together particularly burdensome by their behavior involving the use of domestic violence, the affected person by this violence, he may demand that the court oblige him to leave the jointly occupied flat and its immediate surroundings, or to prohibit him from approaching the flat and its immediate surroundings.
- A court order to leave the apartment can also be obtained if:
- 1) a person affected by domestic violence has left the jointly occupied apartment due to the use of violence against him in that apartment;
- 2) a family member using domestic violence has left the jointly occupied apartment;
- 3) a spouse, an ascendant, descendant, siblings, related in the same line or degree, a person in an adopted relationship and their spouse, as well as a cohabiting person and another person using domestic violence, periodically or irregularly staying in the apartment together with a person affected by domestic violence.
- An adult who remains in the apartment for the time when a person using domestic violence does not live in it, in connection with an order to leave the apartment, is obliged to pay fees for the supply of electricity, gas, water to the apartment, as well as collection of sewage, waste and liquid waste. and the rent or the costs of day-to-day management of the property, unless the perpetrator of domestic violence is obliged to provide maintenance.
- An application for obliging a person using domestic violence to leave the jointly occupied flat and its immediate surroundings or prohibit approaching the flat and its immediate surroundings may be submitted on an official form.
- The court decides the case after a hearing. The court also delivers a copy of the application or other letters to the prosecutor and notifies him of the dates of the hearing. The court decides within one month from the date of filing the application.
- The court in its decision indicates the area or distance from the jointly occupied flat, which the person using domestic violence is obliged to keep.
- The provision on obliging the perpetrator of domestic violence to leave the jointly occupied apartment and its immediate surroundings or prohibit approaching the apartment and its immediate surroundings is effective and enforceable upon its announcement. The court may amend or revoke them in the event of a change in circumstances, even if it is final.
- The deadline for submitting an application for a justification runs from the date of publication of the decision. If copies of the appeal are not attached to the appeal, the court prepares and serves a copy of the appeal. The deadline for submitting a response to the appeal is one week. The second instance court decides within one month from the presentation of the case file by the first instance court together with the appeal.
V 2022 r.
Can a foreign divorce judgment be recognized if there is no fault found?
According to the Polish Family and Guardianship Code, when deciding a divorce, the court also decides whether and which spouse is to blame for the breakdown of the marriage. However, at the unanimous request of the spouses, the court decides not to adjudicate on the fault. In this case, the consequences are as if neither spouse was at fault. There is also a need to mention negative divorce grounds. Adjudication of divorce is not possible if it would damage the well-being of the minor children of the spouses or if for other reasons the divorce would be contrary to the principles of social coexistence. Divorce is also not admissible if it is requested by a spouse who is only guilty of the breakdown of the marriage, unless the other spouse agrees to the divorce or that the refusal of his consent to divorce is, in the given circumstances, contrary to the principles of social coexistence.
A foreign judgment cannot be recognized if, inter alia, its recognition would be contrary to the fundamental principles of the legal order of the Republic of Poland. Pursuant to the decision of the Court of Appeal in Warsaw of October 3, 1997 (file reference number I Acz 472/97, Appeal-Warsaw 1998, No. 1, item 10), "the fundamental principles of the legal order of the Republic of Poland include between in other words, the principle of the permanence of a marriage, which may be dissolved only under certain conditions in a manner prescribed by law. In particular, it is unacceptable to divorce without being guilty of taking into account the request of one of the spouses without the spouse being able to comment on this issue ". Therefore, it should be remembered that the recognition of a foreign divorce judgment may be made only if the judgment meets the conditions set out in Polish law, i.e. There are no negative grounds for divorce, there is a possible unanimous request of the spouses not to adjudicate on the fault.
In other legal orders, however, there may not be an element of adjudication on the spouses' guilt. Following the ruling of the Supreme Court of 18 January 2002 (file reference number I CKN 722/99), "the ruling of a foreign court violates the fundamental principles of the legal order in Poland, including when its effect is incompatible with the very concept of a specific legal institution in Poland, and not only with individual provisions regulating the same institution in both countries ".
Considering the above, it should be emphasized that in Polish law it is possible to order a divorce without establishing the spouses' guilt, and thus a foreign divorce judgment should be recognized when there is no judgment of guilt (decision of the Court of Appeal in Warsaw of March 28, 2006 (on reference number I ACa 1183/05).
IV 2022 r.
Governing Law in Divorce
The legal system applicable to the legal assessment of divorces is governed by Art. 54 of the Act of February 4, 2011, Private International Law (i.e. Journal of Laws of 2015, item 1792). Pursuant to paragraph 1 of the commented provision, the rule is that dissolution of a marriage, i.e. its termination during the life of both spouses , is subject to the common national law of the spouses upon request for marriage. This regulation is an expression of the principle of equal rights of spouses (A. Mączyński, Divorce in private international law, p. 19). In the case of Polish citizens, dissolution of marriage is subject to Polish law, even if they both have If the spouses are citizens of a foreign country, their common national law shall apply accordingly, and if they have more than one nationality, the law of the country with which they are most closely connected shall apply. if it would have consequences contrary to the fundamental principles of the Polish legal order, it would, for example, lead to discrimination against women. Such a position was already expressed in the decision of February 21, 1975 by the provincial court in Zielona Góra, stating that "the application of foreign law that does not allow a request for divorce by a woman is excluded pursuant to Art. 6 of private international law, because the discrimination against women introduced by them is contrary to the fundamental principles of the Constitution of the Polish People's Republic. " (Decision of S.WOJEW of February 21, 1975, II Cr 109/75, LEX No. 1726675._
The applicable law is determined in accordance with the moment of submitting the request to terminate the marriage, in particular, it may be the moment of submitting the request to the competent authority or submitting a declaration of will with appropriate content.
If it is impossible to establish the common national law of the spouses, the applicable law is the law of the state in which the spouses have their joint residence at the time of the request for divorce, and if such a place cannot be established - the law of the state in which the spouses had their last common habitual residence, provided that that one of them is still habitually resident there. The legal situation is similarly regulated when a marriage is dissolved between persons whose citizenship cannot be established or who do not have the citizenship of any country. (K. Pietrzykowski [in:] International private law. Commentary, edited by J. Poczobut, Warsaw 2017, art. 54.)
Article 54 (1) 3 p.p.m. provides that in the absence of circumstances determining the jurisdiction of the law, pursuant to para. 1 or 2, Polish law shall apply. Sometimes, the application of Polish law may be provided for directly by the provisions of foreign law, if the spouses are domiciled or habitually resident in Poland. It should be borne in mind Art. 365 and 435 of the Civil Code - for whom the decision of the Polish court dissolving the marriage through divorce becomes effective as soon as it becomes final.
III 2022 r.
The issue of fees incurred in connection with pending divorce proceedings was regulated in the Act of 28 July 2005 on court costs in civil cases.
Article 26 u.k.s.c. statutes that the fixed fee for a divorce petition is PLN 600. At the same time, it should be noted that in a situation where the divorce would result in the issuance of a judgment without ruling on the fault of any of the parties, the court will reimburse the plaintiff who pays all the costs - half of them, i.e. PLN 300. Moreover, from the former spouse, the Claimant has the right to demand a refund of one-fourth of the court fee in the amount of PLN 150.
Additional costs will not be incurred in connection with the need to resolve issues such as parental responsibility or alimony. In these cases, if the parties have minor children, the court will adjudicate obligatorily.
If the parties decide to challenge the judgment issued in the case, regardless of the scope, i.e. even if the appeal is submitted to part of the decision, e.g. referring only to the issue of regulating contacts with children, the costs of the proceedings will be the same as before the first instance. The required fee will therefore be PLN 600.
The additional fee, in accordance with the provisions of Art. 26 §2 u.k.s.c. you must also submit a spousal maintenance decision. It is relative and amounts to 5% of the annual value of the awarded amount. Also, in the case of ordering the eviction of one of the spouses, a fee of PLN 200 is collected for the decision. Additional costs, in the amount of PLN 11, are also required for submitting a declaration of return to the previous name.
II 2022 r.
No gradation of blame for the breakdown of marriage
In the decision of 20 November 2020 (III CNP 6/20), the Supreme Court recalled that "for the acceptance of joint guilt for the breakdown of marriage between spouses, it is enough if the other spouse's conduct contributed to this breakdown, even if the degree of his fault was smaller; fault in the breakdown of marital life cannot be graded. " This means that although there may be (and considerable) differences in the extent to which the spouses have contributed to the breakdown of the marriage, the divorce will still be ordered by both spouses. The judgment will not mention who is more guilty of the breakdown of the marriage (possibly it may be described in the justification). The differences in the degree of guilt will also not affect the maintenance obligation between spouses after divorce.
I 2022 r.
Cohabitation is not marriage
The courts recall that cohabitation is not a marriage. For example, in the judgment of February 24, 2021 (I ACa 337/20), the Szczecin Court of Appeal emphasized that "cohabitation by itself cannot be a source of any rights and obligations regulated in the family and guardianship code. For this reason, the law on marriage cannot be applied to cohabitation, even by analogy. This also applies to the provisions of the Family and Guardianship Code on matrimonial property relations, including settlements following the termination of commonality. A different interpretation would mean, to some extent, the equation of marriage and the informal relationship, for which there is no legal basis. On the other hand, there is no doubt that there is a need to make property settlements after the end of cohabitation. ”. Earlier, the District Court in Olsztyn similarly ruled (decision of November 13, 2019, IX Ca 1195/19), stating that "there are no grounds for applying in the case of settlement of cohabitation the provisions on marital property relations, even by analogy, because it would de facto mean equating marriage and cohabitation in this respect - for which there is no legal basis. Especially because it would destroy the established legal system in which cohabitation was consciously recognized as not subject to regulation by the provisions of the family and guardianship code ”. Therefore, especially the economically weaker party of cohabitation (usually a woman) should strive to get married, as cohabitation will expose her to a high legal and financial risk.
XII 2021 r.
Contradiction of divorce with the principles of social coexistence
The Court of Appeal in Poznań in its judgment of February 12, 2020 (I ACa 230/19) recalled that it is not possible to obtain a divorce if it is contrary to the principles of social coexistence. In particular, when the divorce could not be reconciled with the gross harm suffered by the spouse who opposes the divorce, or when serious social and educational considerations speak against the divorce. It was a repetition of the view expressed in the resolution of the full composition of the Civil Chamber of the Supreme Court of March 18, 1968.
XI 2021 r.
No implied support payments for a divorced spouse
The ordinary maintenance obligation towards the ex-spouse after divorce (i.e. a spouse who is not solely guilty of the breakdown of the marriage) expires after 5 years. What if alimony is voluntarily paid longer - does this obligation continue?
The Supreme Court stated that no (Judgment of the Supreme Court of 29 July 2020 I UK 10/19). According to the Supreme Court, "payment of sums of money many years after the divorce cannot be treated as an implied declaration of will to extend the maintenance obligation beyond the five-year period, because while the judgment on the change of the amount of maintenance or limitation of its duration is declarative, the judgment issued in on the basis of art. 60 § 3 k.r.o. it is constitutive. Failure to obtain, under a court judgment, the extension of the five-year period referred to in Art. 60 § 3, second sentence, of the Family Code, causes the expiry of the maintenance obligation of the divorced spouse ”.
The Supreme Court also recalled the rules for the extension of the 5-year period of the maintenance obligation towards the ex-spouse: "the extension of the maintenance obligation is possible only in the event of" exceptional circumstances ". The meaning of this concept cannot be interpreted broadly (exceptiones non sunt extendendae). Thus, it should not cover normal circumstances that occur in human life and are related to the aging process and loss of strength in relation to earning opportunities. These extraordinary circumstances do not arise if the relatives of the spouse (s) are able to provide the divorced spouse with full support. In other words, which means failure to meet one of the conditions necessary for the granting of a survivor's pension, consisting in the possession of the right to maintenance established by a court judgment or court settlement on the date of the ex-husband's death (Article 70 (3) of the U.e.r.f.u.s.). In such a situation, it is irrelevant that the former spouses live together after the divorce, run the household together and provide each other with material help voluntarily. "
X 2021 r.
The content of the divorce decree and the spouses' agreement
The Court of Appeal in Warsaw, in its judgment of September 15, 2020, specified the obligations of courts with regard to the elements of the divorce judgment
According to the court, "contained in Art. 58 § 1 k.r.o. the term "the court takes into account the written agreement of the spouses" does not mean that the court has been released from the obligation to cover all matters relating to the family listed in Art. 58 § 1. k.r.o. A joint application of the divorcing spouses may not be allowed to fail to resolve these issues ”. This means that the court must always adjudicate on parental authority over the common minor child of both spouses and on the parents' contacts with the child, and the amount in which each spouse is obliged to bear the costs of maintaining and bringing up the child. “On the other hand, it is unacceptable to refer to the content of the agreement as a specific annex. Even if the agreement is deemed to be authoritative for the manner of exercising parental responsibility and contacts with the child, the court should transfer its content to the operative part of the judgment. The agreement cannot be treated as a settlement, and therefore cannot lead to the discontinuation of proceedings in this respect and does not constitute an enforcement order. Such a title is a court decision subject to compulsory execution, and therefore it is necessary to precisely specify the rights and obligations of each parent. "
IX 2021 r.
Contacts with the child and personal rights
The plaintiff brought an action against the defendant to remove the effects of the infringement of personal rights by the defendant's failure to further prevent the plaintiff from contacting the minor daughter of the parties. The Court of Appeal made a thorough analysis of the evidence to determine the admissibility of meeting the Plaintiff's demands.
The parties met in Austria. Before their daughter was born, the respondent returned to Poland, where she was raising the child. After some time, the defendant initiated contact between the father and the daughter. Meetings were held in Poland, always in the presence of the mother, on average four to five times a year. Each time, the meetings lasted about 45 minutes. During this time, the interested parties usually eat their meals, talked, played or shopped. During each of these meetings, there were quarrels and even quarrels between the parties, which were caused, in particular, by financial settlements between former partners, the purchase of certain things and their financing by the plaintiff. As for the bond between the Plaintiff and his daughter, it should be considered that their relationship was good. The girl was not afraid of her father, she was happy to spend time with him.
Due to the parties' constant quarrels caused by the finances, the plaintiff's contacts with his daughter were weakened or even prevented. The plaintiff filed a lawsuit in which he accused the Defendant that in the period from June 2015 to August 2016, the defendant infringed his personal interest in the form of an emotional bond between him and his daughter, limiting the plaintiff's personal contacts with the child, as well as telephone and with the use of electronic communicators, leading to an almost complete severance of these contacts. As a result of severing contact with the daughter, the plaintiff experienced harm, pain and emotional suffering in the analyzed period.
Taking into account the nature of the infringed personal interest of the plaintiff, the Court ordered the defendant to refrain from further preventing the plaintiff from contacting a minor daughter. Both parties appealed against this ruling.
Indeed, the parties were not in dispute about the circumstances related to the course of contacts between the claimant and the parties' minor daughter. Each of the parties only presented the reasons for the conflicts that arose in this connection and the motives for the behavior of the other parent differently.
The appellate court shared the view of the court of first instance that a personal and emotional bond with the closest family members may be included in the category of personal rights within the meaning of Art. 23 of the Civil Code, subject to protection pursuant to the provisions of Art. 24 of the Civil Code and art. 448 of the Civil Code The Court of Appeal was not convinced that the personal rights of the Complainant had been violated, as the very right to cultivate a bond with a common child was not violated. In the opinion of the Court of Appeal, even if such an attitude of the defendant constituted a breach of the conditions resulting from the above-mentioned the decision of 17 April 2015 (establishing contact with children), it was not tantamount to infringement of the personal rights of the claimant to maintain ties with the child as defined above. While the claimant wanted to exercise the rights granted to him in accordance with his own interpretation of this judgment, he should initiate a procedure for its compulsory enforcement, regulated in the provisions of the civil procedure (execution of the judgment).
VIII 2021 r.
The return of the child to the country of his residence
In the case of international child abduction by one of the parents, the provisions of the Convention on the Civil Aspects of International Child Abduction, signed at The Hague on October 25, 1980 (hereinafter referred to as the Convention) apply. The provisions of this convention, as well as Council Regulation (EC) No. 2201/2003 of 27 November 2003 (hereinafter referred to as "the Regulation) are referred to by the Supreme Court in its decision of 17 March 2021, reference number I CSKP 38/21 .
Pursuant to Art. 13 lit. b of the Convention "(...) the judicial or administrative authority of the requested State is not obliged to order the return of the child if the person, institution or organization opposing the return of the child demonstrates that there is a serious risk that the return of the child would expose the child to physical or mental harm or any other harm. way would put them at a disadvantage. "
It should be borne in mind that the expression "serious risk" contained in the discussed convention is of an assessment nature and the court may decide differently in any case concerning the return of a child to the country of his residence, depending on whether it considers the risk to be sufficient. serious or not, based on the evidence gathered. The Supreme Court decided that the one-off violation of the child's physical integrity provided for in Art. 2 point 2 of the Act on Counteracting Domestic Violence is not tantamount to "a serious risk of exposure to physical violence" referred to in Art. 13 lit. b of the Convention.
As a consequence, it is for the court hearing a particular case to decide whether, in a given situation, a single violation of bodily inviolability will make it possible to refuse to surrender the child under the Convention or not. In this particular ruling, the Polish court found that a single hit of a child with a guitar cable on the buttocks by the father did not pose a serious risk of exposure to violence, as the incident was of a one-off nature and the child generally had good contact with the father.
VII 2021 r.
PROHIBITING THE PARENTS OF PERSONAL CONTACT WITH THE CHILD
The Supreme Court in its decision of November 7, 2000 in the case No. I CKN dealt with the issue of prohibiting a parent from personal contact with a child in connection with the deprivation of parental rights. The case concerned a father who had abandoned his child and had not contacted him in any way for 8 years. After this period, the father changed his mind and decided to renew contact with the child. The child's mother brought an action against the child's father for deprivation of parental rights and a ban on personal contact with the son. The court of first and second instance upheld the plaintiff's claims. On the other hand, the Supreme Court, as a result of a cassation appeal brought by the defendant, revoked the ban on personal contact between father and son. According to the Supreme Court, the right to personal contact with a child is a completely separate issue from parental authority, therefore, the deprivation of this authority does not automatically entail the application of this prohibition. According to the thesis of the order: "Forbidding parents from personal contact with a child may be imposed exceptionally, e.g. when maintaining personal contacts between parents and a child threatens their life, health, safety or demoralizes the child" (quoted in the Resolution of the Supreme Court of 7.11.2000. , I CKN 1115/00, OSNC 2001, No. 3, item 50).
VI 2021 r.
The spouses' agreement as to parental responsibility in the divorce decree
Article 58 § 1 of the Family and Guardianship Code introduces the principle according to which in the divorce judgment the Court takes into account the spouses' written agreement on the manner of exercising parental authority and maintaining contact with the child after the divorce, if it is in the best interests of the child. However, such an agreement is always assessed by the adjudicating court, which examines its compliance with the best interests of the child in the circumstances of a specific case.
If the adjudicating court agrees with the rules of exercising parental responsibility and contacts adopted in agreement, it must include the relevant provisions in the operative part of the judgment. This position was adopted by min. The Court of Appeal in Warsaw in the judgment of September 15, 2020 (file reference number: V ACa 776/18). This means that the decision regarding parental authority and contacts must always be included in the conclusion of the divorce decree. It is not enough to refer to the content of the parents' agreement, treating it as a specific appendix to the judgment. The Court of Appeal noted that such a conclusion “results from a systemic and functional interpretation; concentrating all issues concerning the family in one ruling takes into account the effects of the spouses' divorce and the shaping of family affairs to the extent that it will continue after the dissolution of the marriage. Systemic compliance is also indicated by Art. 4451 of the Code of Civil Procedure, which gives priority to decisions on parental responsibility and contacts with a child in divorce proceedings, and Art. 441 of the Code of Civil Procedure, requiring the taking of evidence to clarify the situation of the parties' children ".
The above issue has a practical dimension - by considering the issues of parental authority and contacts in the operative part of the divorce judgment, the court creates an enforcement order. Otherwise, the court's decision in this respect is not suitable for enforcement and the investigation of its enforcement will be significantly more difficult.
V 2021 r.
Distribution of a shared flat after divorce
Pursuant to Art. 58 § 2 of the Family and Guardianship Code, if the spouses share a flat, the court in the divorce decree rules on how to use this flat for the time the divorced spouses live in it.
The ruling on the method of using the shared flat for the period of residence of the divorced spouses usually consists in temporarily assigning to each of them a certain part of the shared flat for separate use. This ruling will have consequences such as dividing things quod usum.
This means that even a spouse who does not have any right to the apartment may be allocated a separate part of a shared flat. Then it remains under the protection provided for by the provisions of the Act on the protection of the rights of tenants (judgment of SA in Gdańsk of February 25, 2011, I Aca 928/10).
In some cases, the obligation to adjudicate in the divorce decree on the use by the spouses of the shared apartment is excluded. The court is not obliged to adjudicate in the divorce decree on the manner in which the spouses use the shared flat, if the spouses have actually divided the flat and neither of them requests that a ruling on this matter be included in the divorce decree (Resolution of the Supreme Court of 10/02/1977, III CZP 74/76).
The court may waive the ruling on the method of using a shared flat also in the event when, due to the type of flat, the ruling on separate use of individual parts of the flat would be redundant (Resolution of the Supreme Court of 13.01.1978, III CZP 30/77). In practice, the courts depart from such a ruling if the shared flat is a studio apartment.
Additionally, it should be emphasized that the conflict between divorced spouses cannot be regarded as an objective necessity for the ex-spouse to leave his apartment (decision of the Supreme Court of October 5, 1981, III CRN 190/81).
It should be added that the remaining part of the discussed provision states that in exceptional cases, when one of the spouses by his grossly reprehensible conduct prevents them from living together, the court may order his eviction at the request of the other spouse. At the joint request of the parties, the court may, in the divorce decree, also decide on the division of a shared flat or on granting a flat to one of the spouses, if the other spouse agrees to leave it without providing a replacement flat and a substitute room, provided that the division or its allocation to one of the spouses are possible.
IV 2021 r.
The mode of proceedings in family law
Although issues related to family matters often concern very similar issues, which are inseparable for the parties, different modes of proceedings concern them before the court. In some cases a court may hear several cases in one proceeding, but sometimes separate cases are required which may even be pending before other courts.
Below is an overview of the most important family matters mode:
The divorce petition should be submitted to the district court where the spouses last lived together, if at least one of them still lives or usually resides in that district.
Divorce is resolved in procedural proceedings. When adjudicating a divorce, the court also adjudicates on parental authority over the common child of both spouses and on the parents' contacts with the child, in what amount each spouse is obliged to bear the costs of maintaining the child and on the use of the shared apartment for the period when both spouses will be in to live there after divorce. As a result of the court issuing a judgment stating the divorce, the marriage ceases to exist and the joint property ceases between the existing spouses.
A petition to establish paternity is brought to a district court, it may be a district court competent for the domicile of the entitled person and a district court competent for the defendant's domicile. The case is pending in the procedural mode.
Along with the recognition of paternity by the court, a parental relationship arises by operation of law. In a situation where the court decides that granting full parental responsibility will be contrary to the best interests of the child, it may limit parental authority or even deprive it of this authority.
Property issues are also related to the establishment of paternity. A paternity claim may be linked to a maintenance claim from the child's father. It is also permissible for the child's mother to claim reimbursement of part of the costs related to the period of pregnancy and childbirth.
An application for the establishment of maintenance is submitted to the district court. It is governed by procedural rules.
In addition, the maintenance claim may be pursued in divorce or separation proceedings pending before a regional court, as well as in paternity proceedings - before a district court.
During the divorce trial, a separate maintenance case may not be initiated between the spouses or between them and their joint minor children as to benefits for the period from the filing of an action for divorce or separation. On the other hand, if such a case was initiated before an action for divorce or separation was brought, the proceedings are suspended upon filing an action for divorce or separation as regards benefits for the period from the filing thereof.
Parental authority and contacts
Proceedings for deprivation of parental authority and contact proceedings (these are separate issues, although they may be resolved in one proceeding) are pending before the district court, which operates on the basis of the provisions of the Code of Civil Procedure in non-contentious proceedings. The same rules of procedure apply to proceedings for the reinstatement of parental responsibility. Issues related to parental responsibility may also be adjudicated in the case of divorce and separation and in paternity proceedings.
As in the case of alimony - when a divorce case is pending, a separate case for parental authority or contacts cannot be initiated. Proceedings initiated earlier are suspended.
Division of joint property
Spouses who have had a divorce or legal separation may request the division of their joint property. The application for the division of property is submitted to the district court.
This application may also be filed during the divorce proceedings. It is then submitted to the district court competent to adjudicate on the divorce.
If the division of the property does not result in undue delay in the proceedings, the court will divide the property in the divorce decree. If he fails to do so, after the divorce has been pronounced, the spouse may apply for the division of the property to the district court.
III 2021 r.
Termination of the relationship of affinity and the right to refuse to testify
Pursuant to Art. 61 of the Family and Guardianship Code, a marriage results in an affinity between the spouse and relatives of the other spouse and it continues despite the termination of the marriage. This provision has tangible consequences, including from the point of view of criminal law.
Due to the ties with the accused in criminal proceedings, some of his relatives were excluded from the obligation to testify. Pursuant to the provisions of the Code of Criminal Procedure, the person closest to the accused may refuse to testify.
The closest person is considered to be a spouse, ascendants, descendants, siblings, related persons in the same line or degree, a person who is adopted and their spouse, as well as a person who is living together (Article 115 § 11 of the Criminal Code).
Pursuant to the judgment of the Supreme Court of April 26, 2012, II KK 268/11, a relative may refuse to testify also after the termination of the marriage on the basis of which the relationship of affinity is based. The cessation of marriage does not deprive the relative status of the closest person within the meaning of Art. 115 § 11 of the Criminal Code.
Art. 61 of the Family and Guardianship Code means that the ties of affinity do not cease after divorce. The right to refuse to testify that a related person is entitled to does not become obsolete as a result of the termination of the marriage of his relative with the accused.
II 2021 r.
Alternating care and its impact on 500+
According to Art. 5 of the Act of February 11, 2016 on state aid in bringing up children, the childcare benefit, commonly referred to as 500+, is granted in certain cases to the parents and guardians of a child under 18 years of age.
Article 5 of this Act stipulates that if a child, according to a court decision, is under the alternate care of both divorced, separated or separated parents in comparable and repeated periods, the amount of the childcare benefit is determined for each of the parents in half the amount of the childcare benefit for a given month.
In the judgment of February 26, 2019, I OSK 878/17, the Supreme Administrative Court considered the situation when the court ruling on the relationship between divorced parents and children was made before the institution of alternating care appeared in the regulations (i.e. before April 1, 2016). The court pointed out that past judgments and settlements cannot be assessed against the background of the current regulations and cannot require the use of the discussed legal phrase. Such a condition is feasible and may be required only with regard to judgments or settlements concluded after the effective date of the act. In relation to previous judgments, this issue must be assessed taking into account the characteristics and objectives of this institution.
In assessing the purpose of alternating care, the court stated that this institution is characterized by its parents exercising it towards a child who lives and focuses its life matters on a change in both parents. The concept of alternating care is not symmetrical, so it is not required that the care of children is identical for the mother and father.
If the parent actually cares for the children to an equal or almost equal degree with the other parent, in the court's opinion, he should be treated as an alternate care provider and therefore entitled to PLN 250 for a given month of childcare benefit.
I 2021 r.
Contradiction of divorce with the principles of social coexistence
With art. 56 § 2 k.r.o. it follows that each of the spouses may demand that the court dissolve the marriage by divorce if the spouses have completely and irretrievably broken down.
However, even in the event of a complete and permanent breakdown of the marriage, a divorce may not be granted if one of the so-called negative divorce grounds. These include the following circumstances:
- when, as a result of the divorce, the welfare of the spouses' joint minor children is damaged;
- when the divorce decree would be contrary to the principles of social coexistence;
- when a divorce is requested by a spouse only who is guilty of the breakdown of the marriage.
In the latter case, however, the court may decide to divorce the other spouse if the other spouse has consented to the divorce or if the refusal to consent is in the circumstances contrary to the principles of social coexistence. The Act does not specify in detail what this contradiction to the principles of social coexistence may consist of, but this question is answered by the jurisprudence.
In the judgment of February 12, 2020, file ref. I ACa 230/19 The Court of Appeal in Poznań explained that the divorce decree is contrary to the principles of social coexistence when these principles could not be reconciled with gross harm to a spouse who opposes the divorce or when serious socio-economic considerations speak against the divorce. educational.
In the justification of the judgment, the court stressed that in a situation where a spouse who opposes divorce has the opportunity to find a job, there are no grounds to assume that the divorce would cause gross harm to him.
The jurisprudence emphasizes that divorce is an undesirable phenomenon, but in many cases it would be even worse to artificially maintain a marriage that has actually ceased to exist. The Court of Appeal in Poznań found that in a situation where the parties have severed all ties between the spouses, as evidenced by, for example, quarrels and misconduct between them, there is no basis for stating that the divorce would be harmful to one of them. Moreover, the court stated that the refusal to consent to the divorce of one of the spouses in a situation of intense conflict was contrary to the principles of social coexistence.
XII 2020 r.
Voluntary provision of means of subsistence by one of the separated spouses as the basis for acquiring a survivor's pension
According to Art. 70 paragraph. 3 of the Act on old-age and disability pensions from the Social Insurance Fund, a divorced spouse or a widow who was not married to her husband until the date of her husband's death, has the right to a survivor's pension, if she had the right to maintenance on her husband's day, established by a judgment or court settlement.
In a case considered by the Supreme Court, ref. No. II UK 106/17, during his lifetime, the husband provided his separated spouse with the agreed amount of subsistence. However, ZUS did not grant the woman a survivor's pension from her deceased husband, claiming that she would be entitled to the pension only if the maintenance had been determined by a judgment or a court settlement.
In a judgment of 9 May 2018, unlike ZUS and the courts of both instances, the Supreme Court stated that voluntary provision of a separate woman's means of subsistence is legally equivalent to the right to maintenance established by a judgment or a court settlement. Thus, voluntary alimony was a sufficient condition for granting a wife a survivor's pension.
This position is in line with the judgment of the Constitutional Tribunal of May 13, 2014, file ref. SK 61/13, in which it held that Art. 70 paragraph. 3 of the Act on pensions and disability pensions from the Social Insurance Fund, to the extent that the divorced spouse's entitlement to receive a survivor's pension depends on the requirement that on the day of her husband's death he has the right to maintenance, established only by a judgment or a court settlement, is inconsistent with Art. 32 sec. 1 of the Constitution.
In the opinion of the Tribunal, spouses who are separated in terms of the obligation to provide maintenance by one of them may not be in a less favorable legal position than divorced spouses who may agree to voluntary alimony, legally equivalent to maintenance granted by a judgment or a court settlement within the meaning of Art. 70 paragraph. 3 of the Pension Act. It also does not matter whether the voluntarily donated funds are allocated to the spouse's maintenance, enter the household budget or are spent on the needs of the whole family.
XI 2020 r.
Adjudication of guilt in the breakdown of marriage in the event of a spouse's mental illness
If you decide to divorce, you can apply for a decision which will blame your spouse (or both) on the breakdown of your marriage. In a situation where one of the spouses suffers from a mental illness, attributing blame requires an extremely detailed analysis of all aspects of the case. It depends on the circumstances whether the mental illness of one of the spouses will be considered a culpable cause of the breakdown of the marriage, or whether the fault for this reason cannot be attributed.
In the judgment of 5 January 2001, V CKN 915/00, the Supreme Court stated that in certain circumstances the spouse's mental illness does not preclude the attribution of complicity to the permanent and complete breakdown of the marriage.
In the jurisprudence of the Supreme Court it is emphasized that blaming the spouse in the breakdown of marriage requires establishing that he violated (intentionally or unintentionally) the obligations arising from the act or the principles of social coexistence.
The court recalled that upon entering into a marriage, the spouses undertake to provide mutual assistance and care for a jointly founded family, therefore the spouse's illness means that the other spouse must use all means to restore the sick person's health and cannot, as such, be the sole reason for attributing blame .
However, there are situations in which it will be possible to attribute the blame to the breakdown of a marriage to a mentally ill spouse. The Supreme Court emphasized that it would depend on the type of disease present. For if, in the periods of remission, the patient refuses treatment or hinders it, and his attitude is one of the reasons for the breakdown of the marital relationship, there are no obstacles to assign such a spouse the joint fault (or even the sole fault) of the breakdown of the marriage.
It should be emphasized that, in accordance with the provisions of the Civil Code, fault cannot be attributed to a person who, for any reason, is in a state that excludes the conscious or free decision and expression of will. In the event of adjudication of guilt, the mental state of the spouse who has been charged with the breakdown of the marriage should be taken into account. It will not be possible to attribute the spouse to the fault of the breakdown of the marriage if his actions took place in a state of insanity or temporary disturbance of mental activities.
Incidentally, it should be mentioned that the attribution of the spouse's fault to the breakdown of the marriage is deprived of decisive importance for the issue of his or her parental authority, its exercise or personal contacts with a minor child. The assessment of the child's situation is of decisive importance when deciding on parental responsibility and personal contacts between the parent and the child.
X 2020 r.
Adjudication of fault in second instance
The obligation to adjudicate on fault
When deciding a divorce, the court must indicate which spouse is to blame for the breakdown of the marriage. If the parties do not submit an unanimous request to not adjudicate on fault, the court is obliged to determine whether and which spouse is at fault for the breakdown of the marriage. This means that the court decides on guilt ex officio, and not at the request of the spouses.
Appeal and prohibition of reformationis in peius
What if only one of the parties lodges an appeal against the divorce judgment in the part concerning the fault of the breakdown of the marriage? In civil proceedings, the rule is that the court may not set aside or amend the judgment to the detriment of the appellant, unless the opposing party also files an appeal.
However, this rule does not apply in the present case. The court of second instance may ex officio adjudicate on the guilt of the breakdown of the marriage also to the detriment of the spouse who lodged the appeal. This was stated by the Supreme Court in its judgment of 19 January 2005, reference number V CK 364/04.
In practice, this means that if, for example, the court of first instance decides that neither party is guilty of the breakdown of the marriage, then the appeal is brought by only one party, then the court of second instance may adjudicate to the detriment of the appellant, e.g. decide that both parties are guilty.
IX 2020 r.
Adjudication of the fault of breaking down the marriage
According to Art. 57 § 1 of the Family and Guardianship Code, the court, declaring a divorce, also decides whether and which spouse is to blame for the breakdown of the marriage. This obligation means that the court rules on this matter ex officio, unless both spouses jointly request not to adjudicate on guilt. The indicated provision implements the principle of the integrity of the divorce decree in force in Polish law, which means that it is necessary to adjudicate in a divorce case not only on the possible dissolution of a marriage, but also on all family matters.
The appellate court is also obliged to examine ex officio all circumstances relating to the fault of the breakdown of the marriage, regardless of whether the judgment was appealed by one or both parties. On this basis, in cases for divorce, Art. 384 of the Code of Civil Procedure, which prohibits reformationis in peius, as in these cases the provisions of Art. 57 § 1 and article. 58 k.r.o. oblige the courts of both instances to adjudicate ex officio on all issues that are necessary parts of the decision on divorce.
The prohibition of reformationis in peius means that the court may not set aside or amend a judgment to the detriment of the appellant, unless the opposing party has also appealed. The above-mentioned provisions of the Family and Guardianship Code constitute an exception to this rule.
The Supreme Court in the judgment of January 19, 2005 (file no. V CK 364/04) stated that since an appeal by any party to the judgment on the fault of the breakdown of the marriage makes the entire divorce judgment subject to appeal, the appellate court is obliged to is to independently assess all the grounds for divorce, and thus also to examine ex officio whether and which party has broken the breakdown of the marriage and whether the divorce is admissible.
It should be emphasized that in the current system, the appellate court hears a case in substance for the second time. This additionally justifies the need for the court to examine and assess ex officio all substantive legal grounds for divorce within the scope that was burdened by the court of first instance. The Supreme Court therefore found that if one of the parties appealed against the divorce judgment in the scope of guilt for the breakdown of the marriage, the appellate court was not bound by the prohibition of reformationis in peius and may also rule ex officio to the detriment of the applicant.
VIII 2020 r.
A pension from a deceased spouse in the event of separation
In the judgment of the Court of Appeal in Lublin of November 21, 2019, file ref. III AUa 912/18, the court considered the issue of entitlement to a pension to a widow who was separated from her deceased husband. The court stated that the legal separation ruling excluded the widow's right to a survivor's pension, unless she was entitled to maintenance from her husband on the day of her husband's death. The actual existence of the marriage does not affect the right to a survivor's pension, since the separation ordered by the court has not been abolished.
In the case in question, the Social Insurance Institution (ZUS) Branch refused the widow's right to a survivor's pension. In its justification, the pension authority indicated that on the day of their death there was no marriage between the spouses due to the separation ordered by a final court judgment.
In its decision, the Court of Appeal indicated that in order to end the separation ordered by the court, the marriage must be dissolved by divorce, annulled or the separation abolished as a result of a court decision. This enumeration can be found in Art. 616 § 1 of the Family and Guardianship Code. The said judgment is constitutive in nature, so the effects of the separation cease only when the separation is abolished by the court.
This means that the mere taking up of a joint relationship by the separated spouses does not terminate it. The effects of the separation order are still ongoing.
The court also drew attention to the fact that the burden of proving the condition for obtaining the right to a survivor's pension - maintenance by the deceased spouse, rested in this case with the widow.
Pursuant to Art. 70 paragraph. 3 of the Act of 17 December 1998 on pensions and pensions from the Social Insurance Fund, a divorced spouse or a widow who was not married to her husband until the date of her husband's death, is entitled to a survivor's pension, if she had the right to maintenance on his part determined by a judgment or a court settlement. The Court of Appeal stated that this provision also applied to the widow who was separated by the court.
The entitlement to the survivor's pension of a widow with a separated separation depends, therefore, on whether she was entitled to maintenance from her husband on the day of her husband's death. Moreover, this right should be established by a judgment or a court settlement. The court referred to the judgment of the Constitutional Tribunal of May 13, 2014, which states that in order to establish the right to a survivor's pension, it is sufficient for the spouses to agree on the manner of fulfilling the maintenance obligation.
VII 2020 r.
Change of surname after divorce
When entering into marriage, often one of the spouses (usually the wife in Polish realities) often decides to take the surname of the spouse. After divorce, however, you can return to your last name. There are a few important points to keep in mind.
First of all, you must meet the deadline - 3 months from the moment the judgment becomes final. After this time, the change of surname will be possible only on the basis of the Act on changing the name and surname. In addition, the declaration must be submitted to the head of the registry office or consul. It is not possible to demand from the court that such a resolution should be included in the divorce decree. This view was included in the judgment of the Supreme Court of September 23, 1974 (reference number III CRN 188/74) and it remains valid to this day.
At the same time, it should be remembered that the possibility of changing your name after divorce is a right and not an obligation. A woman bearing her husband's surname (because this is the case most often) may not want this change for many reasons. First of all, by using a given name for many years of marriage, the wife could gain professional reputation and recognition, which she does not want to give up due to the breakup of the relationship. What is more, the children of the spouses usually have their common surname, so keeping the "married" surname may be to protect their good.
However, one can imagine a situation in which her husband, especially in conflict with his ex-partner, demands that she change her surname. So the question arises whether you can force your ex-spouse to change your name after divorce? This case was unequivocally resolved by the Supreme Court in 1978 in a decision of February 2, 1978; IV CZ 11/78. The Supreme Court stated then that "the ex-husband cannot demand that his former wife be deprived of her right to the name acquired by the marriage, since the Family and Guardianship Code does not provide for such a possibility". This decision of the Supreme Court has not lost its validity to this day.
VI 2020 r.
Withdrawal of consent to divorce without ruling on guilt in the second instance
As a rule, the court in a divorce decree decides on the fault of each of the spouses in the distribution of the marriage. The spouses have the opportunity to make consistent statements that they are demanding a verdict without being guilty. Such statement may be withdrawn by either party. However, is such withdrawal possible in proceedings at second instance?
The above-mentioned question was faced by the Court of Appeal in Szczecin, resolving this issue in the judgment of November 27, 2018, reference number act: I ACa 276/18. The court considered that withdrawal of the statement was also possible in appeal proceedings. What's more, its effectiveness does not depend on any additional conditions (e.g. in proceedings in the first instance the party could not withdraw the statement; only in the second instance did new evidence concerning e.g. infidelity come to light). The motivation of the party to withdraw the statement is also irrelevant. The court referred to the resolutions of the Supreme Court of November 24, 2006 (III CZP 105/06) and October 25, 2006, III CZP 87/06.
In the situation described, the court should set aside the judgment under appeal and remit the case. Adjudication of guilt in a divorce decree constitutes the "essence of the case" within the meaning of Art. 386 § 4 of the Code of Civil Procedure. The admissibility of bringing an action depends on the assessment of fault in the distribution of life. The court of first instance, without ruling on the guilt, did not recognize the substance of the case, and thus the judgment should be set aside.
After setting aside the judgment, the case will again go to the court of first instance, which should conduct the evidentiary proceedings, determining the guilt in the distribution of marriage.
V 2020 r.
Is the divorce case urgent?
At the meeting in the Chamber of Labor, Social Security and Public Affairs of 9 January 2018, the Supreme Court considered the issue of whether the divorce case was an urgent matter. If the answer to this question were in the affirmative, it would mean that the courts should deal with divorce first. In the case of divorce of the applicant S.K. for over 13 months from the judgment of the court of first instance and for more than 11 months after the appeal was lodged, no actions were taken aimed at its substantive examination. However, the Supreme Court stated that the length complaint is not admissible, as divorce cases are not urgent.
The Supreme Court cited the provisions of the Act of 17 June 2004 on a complaint about a violation of a party's right to hear a case in preparatory proceedings conducted or supervised by the prosecutor and court proceedings without unjustified delay. Pursuant to these provisions, a party may file a complaint stating that there has been a violation of the right to hear the case in the proceedings without undue delay, if the proceedings aimed at issuing a decision concluding the proceedings in the case:
- lasts longer than necessary to clarify material factual and legal circumstances;
- it takes longer than necessary to settle an enforcement or other case regarding the enforcement of a court decision (length of proceedings).
In accordance with the content of art. 2 clause 2 of the aforementioned Act, in order to determine whether the case has been excessively lengthy of proceedings, one should in particular assess the timeliness and correctness of actions taken by the court or by the prosecutor conducting or supervising the preparatory proceedings. In making this assessment, account shall be taken of the total time taken to date from its initiation to the time the complaint is examined, as well as the nature of the case, its complexity and relevance to the party who filed the complaint.
The Supreme Court noted that the provision of the Act does not specify a specific waiting time for hearing the case. However, it is assumed that proceedings in which a trial has not been set for more than 12 months in a given instance can be considered protracted. The court emphasized that this does not yet mean that this deadline constitutes a rigid time limit for assessing the compliance of proceedings with the conventional, constitutional and procedural directives of judging a case within a reasonable time.
The Regulation of the Minister of Justice of December 23, 2015. Regulations governing the operation of common courts show that cases should be heard in the order in which they are received, unless specific provisions specify the time limit for their consideration or there is another justified reason for changing this order resulting from the organization of the court's work. Out of order should urgent cases be referred to the dates of hearings or meetings. In addition, in particularly justified cases, the chairman of the department may order that the case be considered out of order.
In § 2 point 5 of the cited regulations, examples of urgent matters are listed. The list shows that divorce cases do not fall under the category of urgent cases and should, as a rule, be assigned in the order in which they are received.
The Supreme Court pointed out that the Polish model for resolving divorce cases is not directed at the maximum speedy completion of these cases, but rather at the conciliatory actions of the Court and the desire to maintain the stability of the marriage.
IV 2020 r.
Does a partially incapacitated spouse have legal capacity in a divorce case?
The resolution of the Supreme Court of December 21, 2017 (reference number III CZP 66/17) concerned such a situation.
The Supreme Court emphasized that the ability to act (procedural capacity) is an absolute, positive prerequisite for admissibility of the substantive resolution of the case. The plaintiff's lack of procedural capacity, if not completed, will result in the rejection of the claim.
Linguistic arguments, in conjunction with a systematic and historical interpretation, lead to the conclusion that a partially incapacitated person has no procedural capacity in the divorce proceedings. This position, however, requires assessment also in the light of legal acts setting modern international standards regarding the legal situation of persons affected by intellectual disability, which are directed at maintaining the legal capacity of partially incapacitated persons.
For these reasons, the Supreme Court emphasized that if a person covered by a guardianship files an action for divorce on their own, the assistance provided by the guardian should be limited to examining whether the person understands the meaning of this act, is able to assess its juridical effects, assesses them and is aware of their case, and whether the decision to initiate the trial came from her and was not taken under the influence of third parties. If necessary, the guardian should provide the person for whom it has been appointed with the necessary support in this regard. If the assessment of these elements is positive, the guardian should respect the decision to bring an action and take action to approve this action and continue the process.
In addition, the curator's tardiness should not have negative consequences for a partially incapacitated person. Therefore, if the probation officer does not comply with the deadlines imposed by the Court for confirming the procedural act, the court before which the court is seised should inform the guardianship court before rejecting the claim in order to give the probation officer instructions or instructions or consider the need to change the probation officer.
III 2020 r.
Adjudicating in a judgment declaring a marriage divorce about the obligation for the spouses to bear the costs of maintaining their child.
The Supreme Court, by resolution of April 12, 1990 (reference number III CZP 12/90), stated that when deciding on the divorce of spouses, they are obliged to raise the issue of maintenance for their joint child, as it is one of the material elements of the legal norm arising from art. 58 of KRO. The divorce court does not have to determine the amount of such a benefit from scratch - it may (and should) take into account all kinds of settlements or arrangements between the parties, as well as a judgment of another court, if the latter has already ruled on maintenance. In such a situation, the court may uphold maintenance payments established by settlement, contract or other verdict or repeat such a settlement (if the commitment is expressed in a foreign currency, the equivalent of the liability in PLN can be awarded using the exchange rate as at the date of adjudication). Therefore, the divorce judgment must include a decision regarding expenditure on a joint minor child, as the court requires such action.
II 2020 r.
The good of the child versus divorce and separation
The Family and Guardianship Code provides when divorce and legal separation can be ordered. Neither divorce nor legal separation is permissible if the welfare of the spouses' minor children is harmed as a consequence. Rejection of a divorce application (or separation) for this reason is relatively rare, but it is possible.
The premise of the child's well-being was commented, among others, by the Court of Appeal in Rzeszów in its judgment of 8 April 2010, reference number act: I ACa 83/10. This ruling emphasized that the condition in question is intended to protect the child against the negative effects of parents' divorce, and is unable to protect him against the effects of the breakdown of marriage between them. The court should therefore determine whether the divorce decree will have more negative effects than those caused by the permanent distribution of intercourse between them (and often also by arguments). It is therefore necessary to answer the question why maintaining a dead marriage serves the good of the child.
There are of course situations in which the dismissal of a divorce application (or separation) is justified from the point of view of the child's well-being. Most often, a child's chronic illness is given here. Also, when the decay of life does not affect the child negatively (for example, the child does not know that something disturbing is happening, the parents behave correctly with him and in a sense pretend to be a loving family) divorce decree can have a negative impact on the good of the child. First of all, remember that each case should be assessed individually and all circumstances should be considered.
I 2020 r.
Consequences of issuing the decision to abolish the separation.
Pursuant to the judgment of the Gdańsk Court of Appeal of 24 October 2012, III AUa 256/12 The decision to abolish the separation is constitutive and the effects are effective for the future from the moment it becomes final. The cessation of the effects of separation occurs from the moment of its decision and does not treat the time of separation as "non-existent". As a result of the separation decision, some elements of the legal situation of the spouses are permanently shaped, while others, such as the personal rights and obligations of the spouses, are subject to a complex assessment after lifting the separation: for the period of separation they should be assessed in accordance with the legal regime regulating the effects of this institution, while the qualification legal proceedings of spouses after their abolition takes place on the basis of provisions regulating the effects of marriage.
This means that, despite the fact that the actual situation improved between the spouses before the decision to abolish the separation, it cannot have any effect without the ruling mentioned above. It is only the final decision on the abolition of separation that changes the legal situation of the spouses for the future. It is not possible for such a provision to be relevant for the assessment of events in the period when separation was ruled, i.e. until the judgment becomes final.
In accordance with art. 61 (4) § 1 of the Penal Code. a separation decision has consequences such as the dissolution of a marriage by divorce, unless the law provides otherwise. Due to this, under the Act of 17 December 1998 on pensions from the Social Insurance Fund, the legal situation of spouses separated is the same as that of divorced spouses.
At the same time, it can be noted that in the discussed judgment the court leaned over art. 70 section 3 of the Act of 17 December 1998 on pensions from the Social Insurance Fund. This provision was the subject of an examination of the Constitutional Tribunal, which by judgment of May 13, 2014, reference number SK 61/13 ruled that it is incompatible with art. 67 section 1 in connection with art. 32 section 1 of the Polish Constitution to the extent in which the entitlement of a divorced spouse to obtain a survivor's pension depends on the requirement to have the right to maintenance on his part on the day of her husband's death, determined only by a judgment or court settlement. The Tribunal decided that confirmation of the right to maintenance may also be an agreement between divorced spouses. An implicit contract is also acceptable.
XII 2019 r.
Exclusion of the principle of open proceedings in matrimonial matters
Pursuant to Article 45 of the Polish Constitution, everyone has the right to examine his case in an open manner. This means that, as a rule, all hearings are public, anyone can attend, of course, in the role of the public. Both parties, their proxies and people from the street or the press have the right to be in the room.
However, in matrimonial matters, the Code of Civil Procedure excludes the principle of openness. This is because delicate issues related to the private and family life of the parties are often raised during the trial, e.g. divorce. Proceedings in cases of divorce or separations are taking place behind closed doors. The parties need not fear that the intimate, often also shameful, details of their private life will be disclosed in public. This can be important both for celebrities whose lives are interested in the media, and others who do not want to publicly disclose their family secrets.
Lack of disclosure does not mean, however, that only the plaintiff and defendant may be in the courtroom. The parties may be represented by proxies, in addition, witnesses may also be summoned for the hearing. In addition, at the joint request of the parties, the court may decide to hear the case publicly, but it must be certain that the transparency of the proceedings does not endanger morality.
Exclusion of publicity does not include the announcement of the judgment itself, which must be held in public. However, this only applies to the sentence itself, i.e. for example: whether divorce / separation was adjudicated or not; whether the court found guilty for breaking down the marriage, and if so, how; whether and in what amount maintenance has been granted to the children or spouse, etc. After the announcement of the sentence, the chairman or judge-rapporteur gives orally the main reasons for the decision or justifies it, however, he may fail to do so if the case was heard in camera. In divorce and separation cases, the motives for the settlement or justification will usually be given behind closed doors.
XI 2019 r.
Mediation is a dispute resolution method in which a third party helps the parties reach a mutually acceptable consensus. The Code of Civil Procedure provides for a method of min. to resolve conflicts between parties to proceedings in a divorce or legal separation case. The basic principles of mediation are voluntariness, confidentiality and total impartiality of the mediator. The main assumption of mediation is its short-term duration, it can last up to 3 months.
Mediation can be carried out at the joint request of the parties or on the basis of a court order, in which case the consent of the parties is also required. The court may refer the parties to mediation when there are prospects of maintaining marriage, including when the proceedings have been suspended. Reconciliation of the spouses may also be the subject of mediation. In addition, the Code allows referral to mediation for the amicable settlement of contentious issues related to satisfying the needs of the family, child support, parental responsibility, contact with children and property matters to be resolved in a divorce or legal separation judgment.
A mediator may be a person indicated by the parties or by a court, while the mediator indicated by the court must have appropriate theoretical knowledge, in particular have education in psychology, pedagogy, sociology or law and practical skills in mediation in family matters.
If the parties reach an agreement during mediation, a settlement is concluded between them. By signing it, the parties agree to apply to the court for approval.
X 2019 r.
Refusal to live and fault of decay
When deciding on a divorce, the court also generally rules on the guilt of the spouses (or one of them) for breaking down their marriage. The reasons for blaming one of the spouses can be, as case law shows, very different.
In his "Commentary to some provisions of the Family and Guardianship Code ..." Zdzisław Krzemiński indicates an interesting case in which one of the spouses may be blamed for decaying the marriage - refusal to have sex. Article 23 of the Family and Guardianship Code actually states that spouses are obliged to live together, and the judgment of the Supreme Administrative Court of February 12, 1997, reference number I SA 1638/95 explains that living together consists of psychological, physical and economic bonds. In the commentary, Krzemiński cites two decisions of the Supreme Court. The first of them from November 15, 1951 with reference number C 1003/51 states that "Making a relationship with my husband dependent on" rewriting "an apartment in the name of a wife and donating her furniture - can be considered the wife's complicity in deepening the already existing decay (...)". However, in the second of May 2, 1952, signatures C 1095/51, we can read: "A marriage that does not proceed to fulfill the obligations imposed by the conclusion of a marriage (...) is from the very beginning dead and does not fulfill its tasks social (...). The mere refusal of one of the spouses to commence intercourse can be regarded as an important reason for the breakdown of a marriage, and her motive would be relevant for the assessment of guilt in causing the breakdown of that marriage. " Nevertheless, it is obvious that such a guilt will not be pronounced if the refusal to have sex was related, for example, to physical violence or other harm.
IX 2019 r.
Change of religion and fault of decay
As follows from art. 56 and 57 of the Family and Guardianship Code, the court must declare a complete and lasting breakdown of marriage in order to obtain a divorce. At the same time, as a rule, the court also states whether and which of the spouses is guilty of him. The reasons for blaming one of the spouses can be, as case law shows, very different.
In his judgment of 25 August 2004 reference number IV CK 609/03, the Supreme Court ruled that a change of religion by one of the spouses may be considered the culpable reason for the breakdown of the marriage. The party burdened with the guilt raised the arguments of non-compliance of such ruling with Art. 53 (1-3) of the Polish Constitution, which guarantees everyone not only freedom of conscience and religion, but also the right to religious education of children in accordance with their beliefs. Another argument was the alleged violation of Art. 9 paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which also guarantees the right to freedom of religion.
However, the Supreme Court rejected this argument, saying that the issue of the impact of a change in religion by one of the spouses cannot be considered solely from the point of view of the principles of freedom of religion. It also requires focus on the effects of the choices made. The effects of choosing one of the spouses can be seen in terms of the reasons for the breakdown of the marriage, as well as faults in the breakdown of the marriage, if they significantly violate the justified interest of the other spouse and the current model of marriage and family.
Refusal of permission to divorce
In a judgment of 22 August 2018 (file reference number V ACa 589/17), the Court of Appeal in Katowice stated that the refusal to consent to divorce is contrary to the principles of social co-existence in a situation where there is no emotional bond between the spouses, such as they also have not been in contact with each other for many years, and one of the spouses seeks to formalize a relationship with another person for several years. The court held that the passage of time was relevant to assessing whether refusal to consent to divorce was in a given circumstance contrary to the principles of social coexistence.
In this case, there was no doubt as to the permanence and completeness of the break-up of the marriage and the sole fault of one of the parties (plaintiff). The defendant refused permission to divorce, claiming that she would soon lose her job (planned liquidation of the employer) and had a disabled daughter, so her husband's salary and pension would be used to meet the needs of the whole family, which would be impossible in the event of divorce. The defendant helped the plaintiff take up a job and earlier in obtaining his qualification. At the same time, the defendant did not approve the plaintiff's new partner.
The Court of Appeal found that the above arguments are not sufficient to disagree with the divorce in accordance with the principles of social coexistence. The court pointed out that the marriage has not had any contact for more than 4 years, and the plaintiff has been in a relationship with another woman since the age of 8. This marriage is in fact dead, it exists only on paper, therefore the court believed that artificial maintenance is not socially desirable.
Legal advice is provided by lawyers specializing in family law.