NEWS



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

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.




VIII 2019

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.

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