WARNING !!! automatic translation from Polish
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.