At the unanimous request of the spouses or at the request of one of them, the competent regional court, in the event of a complete breakdown of the marriage – understood as the cessation of emotional, physical and economic ties – is entitled to pronounce the separation. On the basis of this article, we will limit ourselves to legal separation only, not dealing with the actual separation, which depends on the sole will of the spouses (thus not giving rise to legal effects and, at the same time, not abolishing the obligations that have been imposed on the spouses by law). The legislator, who under the Polish constitution was bound by the duty of the environment to protect and take care of the family, decided to introduce two negative premises which make it impossible to issue a separation order. It is about the welfare of minor children and the conflict with the principles of social coexistence.
Basically, legal separation is a self-standing institution of family law, independent of the institution of divorce. The restitution function is indicated as its basic function. However, it is worth pointing to the position of Magdalena Habdas, according to which „the (…) restitution function should not be equated with the fact that the separation is to enable the spouses to return to cohabitation, because the law does not imply that the spouses are obliged to take corrective actions at that time to save relationship. This function consists in the proper shaping of personal and property relations between the spouses in the period when their relationship is in a crisis phase, but it is not impossible to heal the relationship, which may or may not take place. For this reason, one should indicate not so much the restitution function of separation, but its ordering function ”.
In non-contentious proceedings, the court is bound by the parties’ request. This means that the court is not empowered to grant a divorce if neither party has requested it. It should be emphasized that divorce takes precedence over separation. Thus, in a situation where two requests for divorce and separation would be filed simultaneously, the court should issue a divorce decree, unless the separation judgment would be the only correct one. At the same time, as a general rule, it was assumed that the legal separation would have the same effects as the dissolution of a marriage by divorce, unless the law provides otherwise. Exceptions were formulated in the same Art. 61 [4] k.r.o. One of them is to maintain the obligation of mutual assistance between spouses.
The obligation of mutual assistance between spouses is of a non-pecuniary nature, it applies to both the material and the non-material zone. As a consequence, it may result in the imposition of the obligation of financial support, but also spiritual, mental or organizational. Maintaining the mutual assistance obligation must be justified on grounds of equity. The attempt to decode the said general clause involves both doctrine and jurisprudence. It is impossible to formulate a closed catalog of situations that can be considered justified on the grounds of equity, as it is necessary to examine the facts each time. For this reason, only as an example should be indicated – following the Provincial Administrative Court in Bydgoszcz, which in the judgment of 29 September 2010 emphasized that „the illness and disability of the separated spouse should be definitely considered a circumstance covered by the considerations of equity, referred to in Art. 61 [4] § 3 k.r.o. ” (Judgment of the Provincial Administrative Court in Bydgoszcz of 29 September 2010, II SA / Bd 797/10, LEX No. 752179). On the other hand, „in the facts in which the husband, after serving the sentence of imprisonment, demanded that he be allowed to use the apartment, the tenant of which was his wife, and the separation was ordered through the fault of the husband, who was aggressive and abusing alcohol, the court found that there were no such considerations of fairness. . Despite the fact that the husband was in poor health and had a small income, the court found that he should satisfy his housing needs on his own, e.g. by renting a flat together. In the opinion of the court, it would be difficult to consider it right to allow him to use the apartment in a situation where his aggression and arguments led to the decision of separation due to his fault, and meeting his housing needs is possible, although it will not provide him with comfortable conditions. ” (M. Habdas [in:] The Family and Guardianship Code. Commentary, ed. M. Fras, Warsaw 2021, Art. 61 (4)).
When considering the obligation of mutual assistance, it is worth bearing in mind that it should not be equated with the maintenance obligation of separated spouses, nor does it mean that separated spouses are entitled to an equal standard of living.