The institution of separation in Polish law against the background of European solutions

Undoubtedly, one of the central points of reference for family law as a separate sub-branch of civil law is the institution of divorce and separation. Both of the above issues are one of the main subjects of regulation not only under Polish law, but also in relation to other European systems. It is therefore worth considering the similarities and differences in the assumptions of the Polish legislator and, for example, the French, British, Italian and Spanish legislators. Starting from the legal status that can be dealt with in France, it should be noted that separation is sometimes referred to as „bodily separation”. As in Poland, it is an institution separate from divorce. Another convergence is based on the procedural aspect and refers to the situation when the claiming spouse files two lawsuits with the court (one for a divorce, the other for a separation). It is then that the French court, following the example of the Polish one, examines the application for divorce. According to J. Gręźlikowski, the grounds for separation in French law are the mutual consent of the spouses, a long-term break in cohabitation and the fault of the spouse. An interesting thread in the context of French solutions is the ambiguous issue of the obligation to maintain mutual fidelity of separated spouses. However, the dominant view in the literature (M. Świderska) is that the duty of fidelity lasts throughout the duration of the marriage relationship, given the lack of contradiction with the state of separation. The British legal system is also worth analyzing. Like Polish and French legislation, it makes separation an institution independent of divorce. However, the grounds for separation in Great Britain are defined differently than in French and Polish law. These include, alternatively, adultery, abandonment, cruelty, rape or attempted rape, incurable mental disorders, and de facto separation. Pursuant to the regulation of the Polish Family and Guardianship Code (Act of February 25, 1964. Family and Guardianship Code (i.e. Journal of Laws of 2020, item 1359, hereinafter: “k.r.i.o.”), the criterion for separation is the complete breakdown of marital life on the economic, spiritual and physical plane, which is literally referred to in Article 61(1) § 1 of the Family and Guardianship Code. Moreover, in the context of British legislation, it is rather clearly stated that separated spouses are still obliged to Unlike in the above-mentioned legal systems, the dependence of the institution of separation and divorce is regulated in Spanish and Italian law, because in these regions separation is often a kind of „prelude” to divorce, as it is one of the catalysts for the divorce court decision. Separation orders are structured in a way very similar to that of the British legislature, such as: adultery, separation imprisonment for more than three years, imprisonment for more than six years, alcoholism, drug addiction, mental illness, breach of duties towards children or spouse. With regard to the Italian regulation, it is worth mentioning that separation is particularly important here due to the subsequent divorce procedure. The spouses must have been separated for a minimum of 3 years before filing for divorce. In Italy, moreover, there are three types of legal separation – i.e. judicial, consensual and temporary. Concluding, it can be stated that the institution of separation is undoubtedly universal in the law of European countries due to its regulation in their legislation. However, the way in which the legal systems analyzed above treat the discussed issue is not universal. De lege ferenda, it is worth calling for the unification of the developed standards due to, for example, the issue of integration within the EU.