In the decision I ACa 842/00, the Court of Appeal in Katowice stated that if the spouse’s consent to omitting the guilt decision in the separation decision was withdrawn in the appeal, Art. 5672 § 2 of the Code of Civil Procedure, according to which the court decides to discontinue the proceedings in the case.
The decision of the Katowice court in question ended the appeal proceedings in the case in which the husband applied for a separation order, and in the course of the conciliation proceedings his wife also joined the application, expressing her consent to the separation. The first-instance court accepted the joint application of both spouses, but after the judgment was issued, the wife – a participant in the proceedings – appealed against it, claiming that she was not aware of the consequences of the declaration, in particular that she consented to the separation without the court adjudicating on the guilt of to the breakdown of marriage. In the appeal, the participant demanded that her husband be found solely guilty.
The appellate court emphasized that pursuant to Art. 613 § 2 of the Family and Guardianship Code, the court adjudicating the separation does not decide on the fault as to the breakdown of the marriage only when there is a joint request of the spouses for a separation order. Compatibility of the request must exist not only at the time of submitting the application for separation, but also at the time of the court’s decision. The request may also be withdrawn, also after the judgment has been passed – by way of an appeal by either of the spouses. Then the basis for the court to refrain from adjudicating on guilt as to the breakdown of the marriage, as was the case in the present case, disappears.
In such a situation, Art. 5672 § 2 of the Code of Civil Procedure, from which it follows that in the case of separation at the joint request of the spouses, if the previously submitted request is withdrawn or if either of the spouses expresses otherwise no consent to the separation, the proceedings are discontinued. This provision excludes the application of Art. 512 § 1 of the Code of Civil Procedure, which states that after the meeting begins or after any of the participants submits a written statement, the withdrawal of the request is effective only if the other participants have not objected to it within the time limit set. This means that in this case, the withdrawal of the request does not require the consent of the other spouse.
Justyna Dabrowska