by Redaktor | Jun 2, 2021 | news-en
Article 58 § 1 of the Family and Guardianship Code introduces the principle according to which in the divorce judgment the Court takes into account the spouses' written agreement on the manner of exercising parental authority and maintaining contact with the child after the divorce, if it is in the best interests of the child. However, such an agreement is always assessed by the adjudicating court, which examines its compliance with the best interests of the child in the circumstances of a specific case.
If the adjudicating court agrees with the rules of exercising parental responsibility and contacts adopted in agreement, it must include the relevant provisions in the operative part of the judgment. This position was adopted by min. The Court of Appeal in Warsaw in the judgment of September 15, 2020 (file reference number: V ACa 776/18). This means that the decision regarding parental authority and contacts must always be included in the conclusion of the divorce decree. It is not enough to refer to the content of the parents' agreement, treating it as a specific appendix to the judgment. The Court of Appeal noted that such a conclusion “results from a systemic and functional interpretation; concentrating all issues concerning the family in one ruling takes into account the effects of the spouses' divorce and the shaping of family affairs to the extent that it will continue after the dissolution of the marriage. Systemic compliance is also indicated by Art. 4451 of the Code of Civil Procedure, which gives priority to decisions on parental responsibility and contacts with a child in divorce proceedings, and Art. 441 of the Code of Civil Procedure, requiring the taking of evidence to clarify the situation of the parties' children ".
The above issue has a practical dimension - by considering the issues of parental authority and contacts in the operative part of the divorce judgment, the court creates an enforcement order. Otherwise, the court's decision in this respect is not suitable for enforcement and the investigation of its enforcement will be significantly more difficult.
by Redaktor | May 3, 2021 | news-en
Pursuant to Art. 58 § 2 of the Family and Guardianship Code, if the spouses share a flat, the court in the divorce decree rules on how to use this flat for the time the divorced spouses live in it.
The ruling on the method of using the shared flat for the period of residence of the divorced spouses usually consists in temporarily assigning to each of them a certain part of the shared flat for separate use. This ruling will have consequences such as dividing things quod usum.
This means that even a spouse who does not have any right to the apartment may be allocated a separate part of a shared flat. Then it remains under the protection provided for by the provisions of the Act on the protection of the rights of tenants (judgment of SA in Gdańsk of February 25, 2011, I Aca 928/10).
In some cases, the obligation to adjudicate in the divorce decree on the use by the spouses of the shared apartment is excluded. The court is not obliged to adjudicate in the divorce decree on the manner in which the spouses use the shared flat, if the spouses have actually divided the flat and neither of them requests that a ruling on this matter be included in the divorce decree (Resolution of the Supreme Court of 10/02/1977, III CZP 74/76).
The court may waive the ruling on the method of using a shared flat also in the event when, due to the type of flat, the ruling on separate use of individual parts of the flat would be redundant (Resolution of the Supreme Court of 13.01.1978, III CZP 30/77). In practice, the courts depart from such a ruling if the shared flat is a studio apartment.
Additionally, it should be emphasized that the conflict between divorced spouses cannot be regarded as an objective necessity for the ex-spouse to leave his apartment (decision of the Supreme Court of October 5, 1981, III CRN 190/81).
It should be added that the remaining part of the discussed provision states that in exceptional cases, when one of the spouses by his grossly reprehensible conduct prevents them from living together, the court may order his eviction at the request of the other spouse. At the joint request of the parties, the court may, in the divorce decree, also decide on the division of a shared flat or on granting a flat to one of the spouses, if the other spouse agrees to leave it without providing a replacement flat and a substitute room, provided that the division or its allocation to one of the spouses are possible.
by Redaktor | Apr 1, 2021 | news-en
Although issues related to family matters often concern very similar issues, which are inseparable for the parties, different modes of proceedings concern them before the court. In some cases a court may hear several cases in one proceeding, but sometimes separate cases are required which may even be pending before other courts.
Below is an overview of the most important family matters mode:
Divorce
The divorce petition should be submitted to the district court where the spouses last lived together, if at least one of them still lives or usually resides in that district.
Divorce is resolved in procedural proceedings. When adjudicating a divorce, the court also adjudicates on parental authority over the common child of both spouses and on the parents' contacts with the child, in what amount each spouse is obliged to bear the costs of maintaining the child and on the use of the shared apartment for the period when both spouses will be in to live there after divorce. As a result of the court issuing a judgment stating the divorce, the marriage ceases to exist and the joint property ceases between the existing spouses.
Establishing paternity
A petition to establish paternity is brought to a district court, it may be a district court competent for the domicile of the entitled person and a district court competent for the defendant's domicile. The case is pending in the procedural mode.
Along with the recognition of paternity by the court, a parental relationship arises by operation of law. In a situation where the court decides that granting full parental responsibility will be contrary to the best interests of the child, it may limit parental authority or even deprive it of this authority.
Property issues are also related to the establishment of paternity. A paternity claim may be linked to a maintenance claim from the child's father. It is also permissible for the child's mother to claim reimbursement of part of the costs related to the period of pregnancy and childbirth.
Establishing alimony
An application for the establishment of maintenance is submitted to the district court. It is governed by procedural rules.
In addition, the maintenance claim may be pursued in divorce or separation proceedings pending before a regional court, as well as in paternity proceedings - before a district court.
During the divorce trial, a separate maintenance case may not be initiated between the spouses or between them and their joint minor children as to benefits for the period from the filing of an action for divorce or separation. On the other hand, if such a case was initiated before an action for divorce or separation was brought, the proceedings are suspended upon filing an action for divorce or separation as regards benefits for the period from the filing thereof.
Parental authority and contacts
Proceedings for deprivation of parental authority and contact proceedings (these are separate issues, although they may be resolved in one proceeding) are pending before the district court, which operates on the basis of the provisions of the Code of Civil Procedure in non-contentious proceedings. The same rules of procedure apply to proceedings for the reinstatement of parental responsibility. Issues related to parental responsibility may also be adjudicated in the case of divorce and separation and in paternity proceedings.
As in the case of alimony - when a divorce case is pending, a separate case for parental authority or contacts cannot be initiated. Proceedings initiated earlier are suspended.
Division of joint property
Spouses who have had a divorce or legal separation may request the division of their joint property. The application for the division of property is submitted to the district court.
This application may also be filed during the divorce proceedings. It is then submitted to the district court competent to adjudicate on the divorce.
If the division of the property does not result in undue delay in the proceedings, the court will divide the property in the divorce decree. If he fails to do so, after the divorce has been pronounced, the spouse may apply for the division of the property to the district court.
by Redaktor | Mar 2, 2021 | news-en
Pursuant to Art. 61 of the Family and Guardianship Code, a marriage results in an affinity between the spouse and relatives of the other spouse and it continues despite the termination of the marriage. This provision has tangible consequences, including from the point of view of criminal law.
Due to the ties with the accused in criminal proceedings, some of his relatives were excluded from the obligation to testify. Pursuant to the provisions of the Code of Criminal Procedure, the person closest to the accused may refuse to testify.
The closest person is considered to be a spouse, ascendants, descendants, siblings, related persons in the same line or degree, a person who is adopted and their spouse, as well as a person who is living together (Article 115 § 11 of the Criminal Code).
Pursuant to the judgment of the Supreme Court of April 26, 2012, II KK 268/11, a relative may refuse to testify also after the termination of the marriage on the basis of which the relationship of affinity is based. The cessation of marriage does not deprive the relative status of the closest person within the meaning of Art. 115 § 11 of the Criminal Code.
Art. 61 of the Family and Guardianship Code means that the ties of affinity do not cease after divorce. The right to refuse to testify that a related person is entitled to does not become obsolete as a result of the termination of the marriage of his relative with the accused.
by Redaktor | Feb 2, 2021 | news-en
According to Art. 5 of the Act of February 11, 2016 on state aid in bringing up children, the childcare benefit, commonly referred to as 500+, is granted in certain cases to the parents and guardians of a child under 18 years of age.
Article 5 of this Act stipulates that if a child, according to a court decision, is under the alternate care of both divorced, separated or separated parents in comparable and repeated periods, the amount of the childcare benefit is determined for each of the parents in half the amount of the childcare benefit for a given month.
In the judgment of February 26, 2019, I OSK 878/17, the Supreme Administrative Court considered the situation when the court ruling on the relationship between divorced parents and children was made before the institution of alternating care appeared in the regulations (i.e. before April 1, 2016). The court pointed out that past judgments and settlements cannot be assessed against the background of the current regulations and cannot require the use of the discussed legal phrase. Such a condition is feasible and may be required only with regard to judgments or settlements concluded after the effective date of the act. In relation to previous judgments, this issue must be assessed taking into account the characteristics and objectives of this institution.
In assessing the purpose of alternating care, the court stated that this institution is characterized by its parents exercising it towards a child who lives and focuses its life matters on a change in both parents. The concept of alternating care is not symmetrical, so it is not required that the care of children is identical for the mother and father.
If the parent actually cares for the children to an equal or almost equal degree with the other parent, in the court's opinion, he should be treated as an alternate care provider and therefore entitled to PLN 250 for a given month of childcare benefit.
