WARNING !!! automatic translation from Polish
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 Such statement may be withdrawn by either party.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.