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.