In the judgment of January 29, 2021, file ref. I CZ 77/20, the Supreme Court ruled that the court of second instance is obliged to refer the case to the court of first instance for re-examination, if the subject of the case is a divorce.
This decision was made on the basis of a complaint against the decision of the court of second instance, i.e. the Court of Appeal, lodged with the Supreme Court by the defendant. The court of first instance – the Regional Court – assessed that the interests of the minor children of the parties preclude the possibility of a divorce and consequently dismissed the lawsuit.
The plaintiff appealed against this judgment, which led to the Court of Appeals ruling that the court of first instance had erred in limiting itself to assessing the welfare of the parties’ minor children. Focusing on this one factual element, the Regional Court did not consider the merits of the case. Therefore, the court of the second instance decided to set aside the judgment of the first instance and remit the case for reconsideration.
This decision was contradicted by the defendant, who appealed to the Supreme Court and argued that it was the court of second instance who had incorrectly assessed the judgment of the court of first instance and requested that the case be reconsidered by the Court of Appeal. According to the defendant, the District Court correctly recognized the essence of the case and did not limit itself to the analysis of the children’s welfare, but considered this circumstance as a negative premise for the dissolution of the marriage.
When examining the complaint, the Supreme Court first reminded that it is of a formal nature – it is not used to examine the case as to the merits, and thus to assess the validity of the claim, appeal or substantive position of the court of first instance, but to assess whether there were indeed premises for the court of second instance to overturn the judgment court of first instance and referred the case back to it. For this reason, the Supreme Court limited itself to examining whether the court of second instance correctly assessed that the court of first instance had failed to assess the merits of the case. The court stated that a case is not resolved on the merits if the decision does not refer to the actual subject of the case due to the erroneous belief that there is a premise eliminating the claim.
According to the Family and Guardianship Code, the elements of a divorce judgment are: a decision which of the spouses is to blame for the breakdown of the marriage – Art. 57 § 1 of the Agricultural Code, decision on parental authority and contact with the child – art. 58 § 1, sentence 1, and on the use of a shared apartment – art. 58 § 2 sentence one step. Although the court does not rule on these issues if the claim is dismissed, if the court of second instance decides not to uphold the judgment of the court of first instance, the court of second instance needs to make further findings as to the circumstances surrounding the subject matter of the case.
If the court of second instance were to decide on a divorce on its own, it would have to make findings as to the facts and essence of the case from the beginning and classify them accordingly, which would replace the role of the court of first instance. Such a situation is unacceptable, as it would violate the constitutional right to consider a case before two instances. For this reason, the court of second instance in the described situation is obliged to return the case to the court of first instance for reconsideration.