Pursuant to Art. 299 of the Code of Civil Procedure The court may admit evidence from hearing the parties only after the evidence has been exhausted or, in the absence of evidence, if there are still unexplained facts relevant to the resolution of the case. This is called the principle of subsidiarity of proof. However, in the matter of divorce or separation, there is a significant deviation from the above-mentioned rule. This means that then Art. 432 of the Code of Civil Procedure, and not Art. 299 known to ordinary civil proceedings. Art.432 of the Code of Civil Procedure stipulates that the court orders the taking of evidence by hearing the parties in any divorce or legal separation case. It clearly follows from the content of the above-mentioned provision that in divorce cases, evidence from the hearing of the parties is obligatory not only in the sense of admitting this evidence, but also its taking, which is confirmed by the thesis of the judgment of the Supreme Court of 5.03.1999. I CKN 1063/97. Moreover, appointed (in Article 432 of the Code of Civil Procedure), Art. 302 § 1 of the Code of Civil Procedure means that when, for reasons of factual or legal nature, only one party may be examined as to the disputable circumstances, the court will assess whether that party should be heard anyway, or whether this evidence should be omitted completely. The court will do the same if the other party or some of your fellow participants have failed to appear or refused to testify. The judgment of the Supreme Court of 5 March 1999. I CKN 1063/97 indicates that in the case law of the Supreme Court (see the judgment of June 20, 1952, C 1339/51, OSN 1953, No. 4, item 100) in a divorce case, the principle of hearing one party, and not resignation from evidence from the hearing of the parties, if there are factual or legal obstacles to the hearing of both parties or one of the parties did not appear for the hearing. The situation was also explained (see the judgment of the Supreme Court of July 21, 1958, 1 CR 337/57, OSPiKA 1959, No. 7-8, item 202) that if the party summoned to the hearing does not appear, the hearing may be omitted. only after the court has established the reasons for the failure to appear.
It is also worth paying attention to art. 442 of the Code of Civil Procedure in accordance with the content of which, if the defendant accepts the claim and the spouses do not have minor children in common, the court may limit the evidentiary proceedings to hearing the parties. It should be noted that if it is possible to hear only one party as to the disputable circumstances, the aforementioned Art. 442 does not exclude the regulation discussed above from Art. 302 § 1 of the Code of Civil Procedure The content of the provision of art. 442 of the Code of Civil Procedure it is only an option, and not an obligation, to limit the taking of evidence. At the same time, this provision does not establish an additional negative divorce premise, which would be a prohibition on declaring a divorce, if in a pending case for divorce between spouses who have minor children in common, no other evidence, apart from evidence from the hearing of the parties, is submitted, which is clearly emphasized in the justification of the judgment by the Court of Appeal. in Łódź on December 13, 1995 I ACr 557/95.