by Redaktor | Dec 4, 2023 | news-en
In the judgment of May 29, 2023 (I ACa 42/22), the Court of Appeal in Kraków stated that in Art. 58 § 2 of the Family and Guardianship Code three types of decisions regarding a shared flat are provided for, namely: a ruling on the manner of using the flat for the duration of the joint residence of divorced spouses, a ruling on the eviction of one of these spouses, and a ruling on the division of the joint flat or on awarding it to one of the spouses. The first of these decisions is of a transitory nature, as it regulates housing relations temporarily, i.e. for the duration of the divorced spouses' cohabitation, while further types of decisions are of a final nature, as is the division of the divorced spouses' joint property. Moreover, the first of the discussed decisions comes into play when the court did not order the eviction of one of the spouses or did not divide the joint flat or did not award it to one of them. The scope of the court's jurisdiction is also different when it comes to each of these decisions, because the court decides ex officio on the manner of using the shared apartment, on the eviction of one of the spouses at the request of the other spouse, and on the division of the shared apartment or on awarding it to one of the spouses. decides at the request of both spouses.
The Court of Appeal in Kraków recalled the guidelines of the judiciary and judicial practice in the scope of adjudicating in a divorce judgment on the joint apartment occupied by the spouses and the division of joint property (III CZP 30/77, OSN 1978, item 39). In this resolution, the Supreme Court stated, among other things, that "the decision on the manner of using a shared apartment during the period of joint residence there (...) of the spouses (Article 58 § 2, first sentence of the Family and Guardianship Code) covers basically every apartment occupied by them , i.e. an apartment that is actually at their disposal, regardless of the legal title held. (...). Moreover, the decision on how to use the apartment does not violate the rights of third parties, i.e. the owner of the building or apartment. It does not eliminate the right of ownership to the apartment. a spouse who acquired this apartment before entering into marriage and therefore constitutes the separate property of this spouse. (...) The decision on the manner of using the shared apartment during the period of residence in it (...) of the spouses usually involves the temporary separation of the spouses by assigning each of them a specific part of the common apartment for separate use. This ruling has consequences such as the division of things quo ad usum. If necessary, the court may also normalize the parties' mutual relations during their joint residence by issuing appropriate orders and prohibitions.
In the present case, he granted the defendant the living room room he had requested for exclusive use with shared use of the other rooms on the ground floor. He also regulated the plaintiff's exclusive use of the rooms on the first floor and made the remaining rooms in the parties' house available for shared use. Allocating separate rooms for the exclusive use of spouses while they live together will isolate them to some extent. The court also ordered the plaintiff to give the defendant the keys to the house and the allocated premises within 14 days from the date of the judgment becoming final, because the defendant does not currently live there and does not even have the keys to the house. The court also regulated the manner of use by spouses of the above-mentioned. rooms. He prohibited the defendant from bringing people other than his biological children into the allocated rooms due to the intentions that the defendant wanted to achieve by moving into one room with his entire current informal family. In the light of the plaintiff's attitude, past conflicts, and, above all, for the good of the parties' minor child, the plaintiff's living with people who were strangers to his minor son would be very destructive to the minor's psyche. The defendant's concubine has three children of her own, it is difficult to imagine their life in one room. This would lead to further numerous conflicts between the parties, and the task of the divorce court is to regulate the use of the shared apartment in such a way as to avoid such conflicts for the duration of the divorced spouses' cohabitation in one apartment. The court assessed the defendant's behavior very reprehensibly as, without the knowledge and consent of the remaining co-owner, i.e. his wife, he registered his concubine with her children in the apartment and then, together with her, started a quarrel in front of the plaintiff's house, demanding to be let into the house. This fact already shows what the relationship would be between the plaintiff, the minor son of the parties, and the defendant's concubine. Not only the parties' son but also the concubine's children would be exposed to such behavior, and it would also be contrary to the principles of social coexistence.
by Redaktor | Nov 3, 2023 | news-en
The Blue Card is the name of the procedure for counteracting domestic violence. If, in the course of official or professional activities, there is a suspicion of violence against persons experiencing domestic violence or as a result of a report made by a witness of domestic violence, the "Blue Card" procedure is initiated by completing the "Blue Card" form.
Intervention in the community does not require the consent of the person experiencing domestic violence or the person using domestic violence.
The "Blue Cards" procedure ends when domestic violence ceases and there is a justified assumption that further domestic violence has ceased or when it is decided that taking action is not justified. After the procedure is completed, monitoring activities are carried out for a period of 9 months, which consist in particular in analyzing and assessing the situation of persons subject to the "Blue Cards" procedure.
by Redaktor | Oct 2, 2023 | news-en
Direct payments are a type of payments granted directly to farmers from the European Union under the Common Agricultural Policy, which are intended to support the level of income of agricultural producers. They are granted primarily to professionally active farmers if they conduct agricultural activity and the total area of land covered by the area approved for basic income support owned by a given farmer is at least 1 ha.
The problem of mutual settlements between former spouses after divorce and termination of marital property is definitely a live issue. It turns out that, among other things, the issue of dividing direct subsidies from the European Union was not fully obvious until recently. The Supreme Court took its position on the case, clarifying the above-mentioned issue in its decision of June 23, 2023, issued in the case with reference number I CSK 6967/22.
It sometimes happens that the division of property takes place only a few years after the divorce, and during this time the joint property may generate income that should be divided between the former spouses. This was also the case in this case. The proceedings were initiated by the owners of a farm who, after a divorce, were dividing common property before the court, and the dispute between them concerned the settlement of EU subsidies. The fact that the subsidies were sometimes received by one of the spouses, and sometimes by both, meant that the District Court and then the District Court, as a result of dividing the farm and including all subsidies in the assets, awarded the ex-wife a high subsidy from her ex-husband, the amount of which was to be largely influenced by the surplus. subsidies for the ex-husband above those for the wife. The man filed a cassation appeal pointing out the need to interpret legal provisions (Article 46 of the Family and Guardianship Code) in the context of assessing whether EU subsidies for agricultural land granted as part of direct payments collected by one of the spouses or former spouses for the period after the termination of the statutory marital partnership until the division of property should be taken into account when determining the amount of income from a joint farm subject to division and whether EU subsidies collected after the termination of statutory partnership constitute benefited property within the meaning of Art. 52 § 2 of the Civil Code
In its decision, the Supreme Court indicated that EU subsidies should be included in the division of property, because they are income from the farm, which is usually joint property. This is regardless of whether one or both spouses received it. According to the Court, this is also regardless of whether they are classified as income from joint property or from separate property, because such income, regardless of its source, increases the joint property. Therefore, such receivables constitute income that is included in the assets of the parties and is subject to division.
by Redaktor | Sep 4, 2023 | news-en
Article 59816 § 1 of the Code of Civil Procedure states that if the person taking care of the child does not perform or improperly performs the obligations regarding contact with the child resulting from a judgment or settlement concluded before a court or a mediator, and despite the court's threat to order payment to the child, a specified sum of money to the person authorized to have contact with the child, for each violation of these obligations the court continues to fail to fulfill them, the guardianship court orders the person to pay the amount due. In the judgment of the Constitutional Tribunal SK 3/20, this provision was found to be inconsistent with the Constitution to the extent that it covers situations in which the improper performance or non-performance of obligations regarding contact is related to the child's behavior which was not caused by the person under the care of the child. finds.
For the control model when examining Art. 598 16 § 1 of the Code of Civil Procedure two provisions of the Constitution of the Republic of Poland were adopted:
- - art. 48 section 1 sentence 2, which states that the upbringing of a child by parents should take into account the child's level of maturity, as well as his or her freedom of conscience, religion and beliefs;
- - art. 72 section 3, according to which, in the course of determining the rights of the child, public authorities and persons responsible for the child are obliged to listen to and, if possible, take into account the child's opinion.
In the justification of the judgment, the Tribunal pointed out that the above constitutional regulations emphasize the legal personality of the child. They indicate what the child's rights are in matters that concern him or her, and on the other hand, they impose on other entities (persons responsible for the child and public authorities) the obligation to respect these rights. The cited provision of the Code of Civil Procedure is therefore inconsistent with the obligation arising from the Constitution to treat the child subjectively, and not objectively, to the extent that it does not take into account the situation in which the improper performance or failure to perform obligations regarding contact with the child is not the fault of the person having custody of the child, but is related to the behavior of the child himself. The application of this provision may lead to a situation in which the person having custody of the child will be punished for taking into account the will of the child who does not want to meet with the person authorized to contact him on the basis of a court decision or settlement. Regulation of art. 598 16 § 1 of the Code of Civil Procedure therefore, it does not ensure that the person taking care of the child respects the child's right to express an opinion on matters relating to his or her contacts with the authorized person in accordance with the standards established by constitutional regulations.
For the reasons given, Art. 598 16 § 1, insofar as it covers situations in which the improper performance or failure to perform duties is related to the behavior of a child not caused by the person in whose care the child is, has been found to be inconsistent with the Constitution.
by Redaktor | Aug 4, 2023 | news-en
In the decision I ACa 842/00, the Court of Appeal in Katowice stated that if the spouse's consent to omitting the guilt decision in the separation decision was withdrawn in the appeal, Art. 5672 § 2 of the Code of Civil Procedure, according to which the court decides to discontinue the proceedings in the case.
The decision of the Katowice court in question ended the appeal proceedings in the case in which the husband applied for a separation order, and in the course of the conciliation proceedings his wife also joined the application, expressing her consent to the separation. The first-instance court accepted the joint application of both spouses, but after the judgment was issued, the wife - a participant in the proceedings - appealed against it, claiming that she was not aware of the consequences of the declaration, in particular that she consented to the separation without the court adjudicating on the guilt of to the breakdown of marriage. In the appeal, the participant demanded that her husband be found solely guilty.
The appellate court emphasized that pursuant to Art. 613 § 2 of the Family and Guardianship Code, the court adjudicating the separation does not decide on the fault as to the breakdown of the marriage only when there is a joint request of the spouses for a separation order. Compatibility of the request must exist not only at the time of submitting the application for separation, but also at the time of the court's decision. The request may also be withdrawn, also after the judgment has been passed - by way of an appeal by either of the spouses. Then the basis for the court to refrain from adjudicating on guilt as to the breakdown of the marriage, as was the case in the present case, disappears.
In such a situation, Art. 5672 § 2 of the Code of Civil Procedure, from which it follows that in the case of separation at the joint request of the spouses, if the previously submitted request is withdrawn or if either of the spouses expresses otherwise no consent to the separation, the proceedings are discontinued. This provision excludes the application of Art. 512 § 1 of the Code of Civil Procedure, which states that after the meeting begins or after any of the participants submits a written statement, the withdrawal of the request is effective only if the other participants have not objected to it within the time limit set. This means that in this case, the withdrawal of the request does not require the consent of the other spouse.
Justyna Dabrowska
