by Redaktor | Feb 3, 2023 | news-en
The decree of February 3, 1947 is the legal basis for recognizing divorces granted on the basis of the provisions of Soviet law by the USSR authorities to Polish citizens in the period from September 1, 1939 to January 29, 1946 in the areas incorporated into the USSR under the agreement on the Polish-Soviet state border from 1946. Such divorces are therefore recognized by law. This regulation is important because it is a special provision in relation to Art. 17 points 3 of the Act on the law applicable to private international relations of 2 August 1926. This article provides that if the authorities of a foreign state did not apply Polish law to the divorce of Polish citizens, then such a divorce decree is not subject to recognition or enforcement in the territory of the Republic of Poland. On the basis of the Decree of 1947, it is possible to recognize a decision issued in the case of Polish citizens, even though the basis for such a decision was foreign law.
by Redaktor | Jan 2, 2023 | news-en
In the judgment I ACa 100/21, the Court of Appeal in Kraków ruled that in order to determine the fault of the spouse who was not found guilty of the breakdown of the marriage in the earlier case of the parties for separation, it is not enough to prove his passivity in subsequent behavior, understood as lack of activities aimed at restoring broken marital ties.
This order was issued by a court hearing an appeal against a divorce decree of a married couple who had been separated prior to the commencement of the divorce case. Separation was ordered due to the sole fault of the husband (the claimant in the divorce case), who, without good reason, moved out of the apartment he shared with his wife and children and maintained close contacts with other women. After the separation, the parties did not maintain any contact with each other, and the husband became permanently involved with another woman and moved in with her. After several years of separation, the husband filed for divorce. The court granted the divorce on the sole fault of the plaintiff, arguing that since the formal separation of the parties, he had not taken any steps to save the marriage and had been in relationships with other women. The plaintiff appealed against the judgment.
The appellate court rejected most of the plaintiff's allegations regarding irregularities in determining guilt by the court of first instance, but admitted the plaintiff was right in the claim that the fact that the parties were separated due to the plaintiff's fault does not mean that the divorce was also due to the plaintiff's fault. In order to finally determine the fault in the breakdown of the marriage, it is necessary to assess the behavior of the parties after the separation. It cannot be ruled out that the spouse found solely to blame for the breakdown of the marriage in a separation case, after its ruling, tries to rebuild the broken marriage ties, while the other spouse behaves culpably. However, the court found that such a situation did not occur in the case in question - the sole fault of the husband was evidenced by the fact that after the separation, he did not change his behavior, still remaining in relationships with other women and did not take actions that would imply that he was trying to renew reestablish broken marriage ties.
According to the Court of Appeal, in order to determine the guilt of the spouse who was not found guilty of the breakdown of the marriage in the earlier case of the parties for separation, it is not enough to prove his passivity in later behavior, understood as the lack of activity aimed at restoring broken marital bonds, in order to determine the fault of the spouse in a divorce case. On the basis of the discussed case, the defendant cannot be blamed for the breakdown of the marriage solely on the basis of her failure to rebuild the relationship with her husband, who did not change his behavior after the separation, remained in a relationship with another woman and lived with her all the time. In turn, the defendant, despite the fact that her relationship was separated, remained loyal to the plaintiff and did not enter into extramarital relations.
To sum up: when ruling on the fault of the breakdown of life in a divorce judgment, one cannot automatically assign blame to the spouse who was found solely guilty in the separation case, but one must assess the behavior of the parties after the separation has been issued. However, the lack of efforts to rebuild the relationship by the spouse previously found innocent cannot constitute an independent basis for assigning blame to him for the breakdown of the marriage in the divorce judgment.
by Redaktor | Dec 2, 2022 | news-en
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.
by Redaktor | Nov 4, 2022 | news-en
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.
by Redaktor | Oct 3, 2022 | news-en
Pursuant to Art. 940 of the Civil Code (Act of April 23, 1964 - i.e. Journal of Laws of 2022, item 1360, as amended), the legislator provided for a situation in which during the life of both spouses one of them brought an action for separation through the fault of the other spouse. However, before the ruling in the case was made, the defendant spouse died and his property is subject to the rules of statutory inheritance.
As is known, the entry into all the rights and obligations of the testator in this way is provided for in Polish law in the event that the deceased did not leave a valid will or when he appointed the testator only to a part of the inheritance. Statutory inheritance also applies when the heir, due to inability to inherit, cannot accept the inheritance or does not want to accept it. Of course, it must be borne in mind that using the institution of substitution or increment will disable the path to inheritance according to statutory rules.
Nevertheless, the subject of this study is not the regulation relating to the methods of acquiring inheritance, but the issue on the borderline of family law and inheritance law, i.e. the issue of excluding from inheritance a spouse whose spouse died during the separation proceedings due to the fault of the defendant. Firstly, it should be remembered that as a result of the claimant's death, the process is discontinued, as a result of which the court does not order the spouses to separate if one of them dies before the sentence is passed. However, it is possible to apply to the defendant the institution in the form of conviction, which in turn leads to the launch of a specific sanction, which is the exclusion from inheritance of the deceased spouse. The judgment in which the court makes such a decision is a consequence of an application from an heir who inherits by statute with the defendant spouse. The time limit for bringing an action is six months from the date on which the heir learned about the opening of the estate, but no more than one year from the opening of the estate. As indicated by the Supreme Court in the judgment of April 12, 2002 (the judgment of the Supreme Court of April 12, 2002, I CKN 1345/99, LEX No. 55556), the time limits specified in Art. 940 § 2 of the Civil Code belong to the category of tight deadlines. The lapse of such time-limits entails the expiry of a time-limited entitlement. In the opinion of the Supreme Court, the possibility of applying the provisions on the limitation of property claims to such time limits (Art. 117 et seq. CC) is, in the opinion of the Supreme Court, controversial. The court does not decide unequivocally on this issue, but emphasizes that with regard to the time limits specified in Art. 940 § 2 of the Civil Code there are no arguments for allowing such a possibility. Against such
On the other hand, according to the adjudicating panel, the action is justified by the fact that the order of inheritance should be determined and definitively as soon as possible.
Summarizing the above, it is necessary to conclude about the purposeful action of the legislator, which takes into account the actual relations between spouses. Thus, it prevents a situation in which the property of the deceased spouse would be unjustly transferred to the other spouse who was guilty of the breakdown of the marriage. Polish inheritance law makes the position of the spouse-heir clearly strong, taking it into account at three levels of statutory inheritance out of the five distinguished by the doctrine. Art. 940 of the Civil Code is supposed to eliminate the potential contradiction of inheritance with the principles of social coexistence. It should be remembered, however, that the court should always check whether the request of the spouse bringing the legal separation suit was justified, which is clearly emphasized by the legislator in § 1 of the above-mentioned art.
