As a rule, the court in a divorce decree decides on the fault of each of the spouses in the distribution of the marriage. The spouses have the opportunity to make consistent statements that they are demanding a verdict without being guilty. Such statement may be withdrawn by either party. However, is such withdrawal possible in proceedings at second instance?
The above-mentioned question was faced by the Court of Appeal in Szczecin, resolving this issue in the judgment of November 27, 2018, reference number act: I ACa 276/18. The court considered that withdrawal of the statement was also possible in appeal proceedings. What’s more, its effectiveness does not depend on any additional conditions (e.g. in proceedings in the first instance the party could not withdraw the statement; only in the second instance did new evidence concerning e.g. infidelity come to light). The motivation of the party to withdraw the statement is also irrelevant. The court referred to the resolutions of the Supreme Court of November 24, 2006 (III CZP 105/06) and October 25, 2006, III CZP 87/06.
In the situation described, the court should set aside the judgment under appeal and remit the case. Adjudication of guilt in a divorce decree constitutes the „essence of the case” within the meaning of Art. 386 § 4 of the Code of Civil Procedure. The admissibility of bringing an action depends on the assessment of fault in the distribution of life. The court of first instance, without ruling on the guilt, did not recognize the substance of the case, and thus the judgment should be set aside.
After setting aside the judgment, the case will again go to the court of first instance, which should conduct the evidentiary proceedings, determining the guilt in the distribution of marriage.