by Redaktor | Jan 1, 2021 | news-en
With art. 56 § 2 k.r.o. it follows that each of the spouses may demand that the court dissolve the marriage by divorce if the spouses have completely and irretrievably broken down.
However, even in the event of a complete and permanent breakdown of the marriage, a divorce may not be granted if one of the so-called negative divorce grounds. These include the following circumstances:
- when, as a result of the divorce, the welfare of the spouses' joint minor children is damaged;
- when the divorce decree would be contrary to the principles of social coexistence;
- when a divorce is requested by a spouse only who is guilty of the breakdown of the marriage.
In the latter case, however, the court may decide to divorce the other spouse if the other spouse has consented to the divorce or if the refusal to consent is in the circumstances contrary to the principles of social coexistence. The Act does not specify in detail what this contradiction to the principles of social coexistence may consist of, but this question is answered by the jurisprudence.
In the judgment of February 12, 2020, file ref. I ACa 230/19 The Court of Appeal in Poznań explained that the divorce decree is contrary to the principles of social coexistence when these principles could not be reconciled with gross harm to a spouse who opposes the divorce or when serious socio-economic considerations speak against the divorce. educational.
In the justification of the judgment, the court stressed that in a situation where a spouse who opposes divorce has the opportunity to find a job, there are no grounds to assume that the divorce would cause gross harm to him.
The jurisprudence emphasizes that divorce is an undesirable phenomenon, but in many cases it would be even worse to artificially maintain a marriage that has actually ceased to exist. The Court of Appeal in Poznań found that in a situation where the parties have severed all ties between the spouses, as evidenced by, for example, quarrels and misconduct between them, there is no basis for stating that the divorce would be harmful to one of them. Moreover, the court stated that the refusal to consent to the divorce of one of the spouses in a situation of intense conflict was contrary to the principles of social coexistence.
by Redaktor | Dec 1, 2020 | news-en
According to Art. 70 paragraph. 3 of the Act on old-age and disability pensions from the Social Insurance Fund, a divorced spouse or a widow who was not married to her husband until the date of her husband's death, has the right to a survivor's pension, if she had the right to maintenance on her husband's day, established by a judgment or court settlement.
In a case considered by the Supreme Court, ref. No. II UK 106/17, during his lifetime, the husband provided his separated spouse with the agreed amount of subsistence. However, ZUS did not grant the woman a survivor's pension from her deceased husband, claiming that she would be entitled to the pension only if the maintenance had been determined by a judgment or a court settlement.
In a judgment of 9 May 2018, unlike ZUS and the courts of both instances, the Supreme Court stated that voluntary provision of a separate woman's means of subsistence is legally equivalent to the right to maintenance established by a judgment or a court settlement. Thus, voluntary alimony was a sufficient condition for granting a wife a survivor's pension.
This position is in line with the judgment of the Constitutional Tribunal of May 13, 2014, file ref. SK 61/13, in which it held that Art. 70 paragraph. 3 of the Act on pensions and disability pensions from the Social Insurance Fund, to the extent that the divorced spouse's entitlement to receive a survivor's pension depends on the requirement that on the day of her husband's death he has the right to maintenance, established only by a judgment or a court settlement, is inconsistent with Art. 32 sec. 1 of the Constitution.
In the opinion of the Tribunal, spouses who are separated in terms of the obligation to provide maintenance by one of them may not be in a less favorable legal position than divorced spouses who may agree to voluntary alimony, legally equivalent to maintenance granted by a judgment or a court settlement within the meaning of Art. 70 paragraph. 3 of the Pension Act. It also does not matter whether the voluntarily donated funds are allocated to the spouse's maintenance, enter the household budget or are spent on the needs of the whole family.
KS
by Redaktor | Nov 3, 2020 | news-en
If you decide to divorce, you can apply for a decision which will blame your spouse (or both) on the breakdown of your marriage. In a situation where one of the spouses suffers from a mental illness, attributing blame requires an extremely detailed analysis of all aspects of the case. It depends on the circumstances whether the mental illness of one of the spouses will be considered a culpable cause of the breakdown of the marriage, or whether the fault for this reason cannot be attributed.
In the judgment of 5 January 2001, V CKN 915/00, the Supreme Court stated that in certain circumstances the spouse's mental illness does not preclude the attribution of complicity to the permanent and complete breakdown of the marriage.
In the jurisprudence of the Supreme Court it is emphasized that blaming the spouse in the breakdown of marriage requires establishing that he violated (intentionally or unintentionally) the obligations arising from the act or the principles of social coexistence.
The court recalled that upon entering into a marriage, the spouses undertake to provide mutual assistance and care for a jointly founded family, therefore the spouse's illness means that the other spouse must use all means to restore the sick person's health and cannot, as such, be the sole reason for attributing blame .
However, there are situations in which it will be possible to attribute the blame to the breakdown of a marriage to a mentally ill spouse. The Supreme Court emphasized that it would depend on the type of disease present. For if, in the periods of remission, the patient refuses treatment or hinders it, and his attitude is one of the reasons for the breakdown of the marital relationship, there are no obstacles to assign such a spouse the joint fault (or even the sole fault) of the breakdown of the marriage.
It should be emphasized that, in accordance with the provisions of the Civil Code, fault cannot be attributed to a person who, for any reason, is in a state that excludes the conscious or free decision and expression of will. In the event of adjudication of guilt, the mental state of the spouse who has been charged with the breakdown of the marriage should be taken into account. It will not be possible to attribute the spouse to the fault of the breakdown of the marriage if his actions took place in a state of insanity or temporary disturbance of mental activities.
Incidentally, it should be mentioned that the attribution of the spouse's fault to the breakdown of the marriage is deprived of decisive importance for the issue of his or her parental authority, its exercise or personal contacts with a minor child. The assessment of the child's situation is of decisive importance when deciding on parental responsibility and personal contacts between the parent and the child.
by Redaktor | Oct 2, 2020 | news-en
The obligation to adjudicate on fault
When deciding a divorce, the court must indicate which spouse is to blame for the breakdown of the marriage. If the parties do not submit an unanimous request to not adjudicate on fault, the court is obliged to determine whether and which spouse is at fault for the breakdown of the marriage. This means that the court decides on guilt ex officio, and not at the request of the spouses.
Appeal and prohibition of reformationis in peius
What if only one of the parties lodges an appeal against the divorce judgment in the part concerning the fault of the breakdown of the marriage? In civil proceedings, the rule is that the court may not set aside or amend the judgment to the detriment of the appellant, unless the opposing party also files an appeal.
However, this rule does not apply in the present case. The court of second instance may ex officio adjudicate on the guilt of the breakdown of the marriage also to the detriment of the spouse who lodged the appeal. This was stated by the Supreme Court in its judgment of 19 January 2005, reference number V CK 364/04.
In practice, this means that if, for example, the court of first instance decides that neither party is guilty of the breakdown of the marriage, then the appeal is brought by only one party, then the court of second instance may adjudicate to the detriment of the appellant, e.g. decide that both parties are guilty.
by Redaktor | Sep 1, 2020 | news-en
According to Art. 57 § 1 of the Family and Guardianship Code, the court, declaring a divorce, also decides whether and which spouse is to blame for the breakdown of the marriage. This obligation means that the court rules on this matter ex officio, unless both spouses jointly request not to adjudicate on guilt. The indicated provision implements the principle of the integrity of the divorce decree in force in Polish law, which means that it is necessary to adjudicate in a divorce case not only on the possible dissolution of a marriage, but also on all family matters.
The appellate court is also obliged to examine ex officio all circumstances relating to the fault of the breakdown of the marriage, regardless of whether the judgment was appealed by one or both parties. On this basis, in cases for divorce, Art. 384 of the Code of Civil Procedure, which prohibits reformationis in peius, as in these cases the provisions of Art. 57 § 1 and article. 58 k.r.o. oblige the courts of both instances to adjudicate ex officio on all issues that are necessary parts of the decision on divorce.
The prohibition of reformationis in peius means that the court may not set aside or amend a judgment to the detriment of the appellant, unless the opposing party has also appealed. The above-mentioned provisions of the Family and Guardianship Code constitute an exception to this rule.
The Supreme Court in the judgment of January 19, 2005 (file no. V CK 364/04) stated that since an appeal by any party to the judgment on the fault of the breakdown of the marriage makes the entire divorce judgment subject to appeal, the appellate court is obliged to is to independently assess all the grounds for divorce, and thus also to examine ex officio whether and which party has broken the breakdown of the marriage and whether the divorce is admissible.
It should be emphasized that in the current system, the appellate court hears a case in substance for the second time. This additionally justifies the need for the court to examine and assess ex officio all substantive legal grounds for divorce within the scope that was burdened by the court of first instance. The Supreme Court therefore found that if one of the parties appealed against the divorce judgment in the scope of guilt for the breakdown of the marriage, the appellate court was not bound by the prohibition of reformationis in peius and may also rule ex officio to the detriment of the applicant.
