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.