by Redaktor | Jul 3, 2023 | news-en
When dissolving an existing marriage, the court makes decisions regarding various aspects of the spouses' previous life together. One of these areas is decisions regarding the use of the spouses' joint apartment. This is stated in Art. 58 § 4 of the Family and Guardianship Code, specifying the premises on which the court decision should be based:
"When ruling on the joint residence of the spouses, the court takes into account, first of all, the needs of the children and the spouse to whom it entrusts the exercise of parental authority." On the basis of the above provision, a problem arose as to whether the phrase: "cohabitation" refers to every case when the court rules on the subject of cohabitation or only the situation when it abolishes the matrimonial community of property. By decision of September 21, 2022, file reference number: I CSK 2590/22, the Supreme Court ruled that the wording of Art. 58 § 4 of the Family and Guardianship Code applies to "From the linguistic interpretation of Art. 58 § 4 k.r.o. it follows that this provision applies to every case where the court rules on the joint residence of the spouses, not only the situation of dissolution of the joint property regime, each case where the court rules on the joint residence of the spouses. The argumentation of the Supreme Court was based on both linguistic and systemic interpretation: "The systemic interpretation also speaks in favor of such an understanding, as this provision was placed in the section regulating the termination of marriage, not the abolition of the statutory matrimonial property regime." In other words, regardless of the regimes existing between the spouses property, the court decision will be based on the provisions of Art. 58 § 4 k.r.o.
by Redaktor | Jun 2, 2023 | news-en
In the judgment I CKN 788/97 of 1998, the Supreme Court stated that remaining in cohabitation by a divorced spouse entitled to alimony is not a statutory premise for the expiry of the alimony obligation of the other divorced spouse towards him.
The judgment in question was issued in a case in which the plaintiff demanded maintenance from her ex-husband. The court of first and second instance focused on considering whether the claimant was in need pursuant to Art. 60 § 1 of the Family and Guardianship Code, and it was the existence of this premise that made the award of alimony - ultimately, the alimony payment was awarded by the appellate court. However, in the cassation appeal, the defendant raised a new objection, claiming that the plaintiff was in a cohabitation, and therefore his maintenance obligation towards her had expired. The defendant relied on the broad interpretation of Art. 60 § 3 of the Family and Guardianship Code (which states that the maintenance obligation expires when a divorced person enters into a new marriage), claiming that in practice there is no difference between marriage and cohabitation, so also leaving one of the former spouses in cohabitation should exempt the other from the maintenance obligation.
The Supreme Court rejected the defendant's argument, emphasizing that Art. 60 § 3 k.r.o. expressly mentions the conclusion of a new marriage by the person entitled to a maintenance allowance as a condition for the expiry of this obligation towards him. This provision cannot be interpreted broadly, and the defendant's allegation is not substantively justified. The Supreme Court also emphasized that a negative assessment of the applicable regulations cannot constitute the basis for a cassation appeal.
by Redaktor | May 5, 2023 | news-en
The Court of Appeal in Kraków, in its judgment of June 15, 2021, reference number I ACa 1006/19, focused on the issue of increasing the maintenance awarded in the divorce judgment. The decision was made as a result of an appeal filed by the claimant. She accused the first-instance court of wrong assessment of the evidence in the case, which contributed to the incorrect assessment of the amount of maintenance due. The plaintiff argued that since the maintenance costs of their minor daughter amounted to approximately PLN 1,400, and the defendant did not exercise personal custody of the child, he should be burdened with a higher maintenance obligation.
At the stage of settling the maintenance obligation, the court of first instance considered that the amount of maintenance remains at the same level as in the security provided, because since then there has been no change in the circumstances affecting the amount of maintenance.
The court of the second instance agreed with the Regional Court that at the time of issuing the divorce judgment, the change of the maintenance allowance in relation to the security would be unjustified. At the same time, he pointed out that pursuant to Art. 445 § 1 of the Code of Civil Procedure, during a divorce or separation case, separate proceedings for alimony between spouses and their minor children cannot be brought. In this context, however, it should also be borne in mind that the decision on the maintenance obligation towards children in a divorce case refers to benefits paid after the divorce judgment becomes final. Consequently, in the case of a request to change the decision on maintenance made pursuant to Art. 138 of the Family and Guardianship Code, the assessment of the fulfillment of the condition for a change in relations should be made from the moment the judgment on the maintenance obligation becomes final, and not from the moment of issuing this judgment, and not from the time of the divorce proceedings.
As a result, the Court of Appeal found that the relationship had changed because, since the divorce judgment became final, the parties' daughter had started attending additional English classes. Inflation and the daughter's growing financial needs also contributed to the change in relations. None of the aforementioned circumstances violated the socio-economic purpose of the right to maintenance. In view of the above, the court of second instance granted the claimant's request to increase the maintenance payments awarded to her daughter from the claimant. That judgment had not been dictated by a poor assessment of the evidence by the Regional Court, but by developments which the latter had not been able to foresee.
by Redaktor | Apr 4, 2023 | news-en
In the judgment of January 29, 2021, file ref. I CZ 77/20, the Supreme Court ruled that the court of second instance is obliged to refer the case to the court of first instance for re-examination, if the subject of the case is a divorce.
This decision was made on the basis of a complaint against the decision of the court of second instance, i.e. the Court of Appeal, lodged with the Supreme Court by the defendant. The court of first instance - the Regional Court - assessed that the interests of the minor children of the parties preclude the possibility of a divorce and consequently dismissed the lawsuit.
The plaintiff appealed against this judgment, which led to the Court of Appeals ruling that the court of first instance had erred in limiting itself to assessing the welfare of the parties' minor children. Focusing on this one factual element, the Regional Court did not consider the merits of the case. Therefore, the court of the second instance decided to set aside the judgment of the first instance and remit the case for reconsideration.
This decision was contradicted by the defendant, who appealed to the Supreme Court and argued that it was the court of second instance who had incorrectly assessed the judgment of the court of first instance and requested that the case be reconsidered by the Court of Appeal. According to the defendant, the District Court correctly recognized the essence of the case and did not limit itself to the analysis of the children's welfare, but considered this circumstance as a negative premise for the dissolution of the marriage.
When examining the complaint, the Supreme Court first reminded that it is of a formal nature - it is not used to examine the case as to the merits, and thus to assess the validity of the claim, appeal or substantive position of the court of first instance, but to assess whether there were indeed premises for the court of second instance to overturn the judgment court of first instance and referred the case back to it. For this reason, the Supreme Court limited itself to examining whether the court of second instance correctly assessed that the court of first instance had failed to assess the merits of the case. The court stated that a case is not resolved on the merits if the decision does not refer to the actual subject of the case due to the erroneous belief that there is a premise eliminating the claim.
According to the Family and Guardianship Code, the elements of a divorce judgment are: a decision which of the spouses is to blame for the breakdown of the marriage - Art. 57 § 1 of the Agricultural Code, decision on parental authority and contact with the child - art. 58 § 1, sentence 1, and on the use of a shared apartment - art. 58 § 2 sentence one step. Although the court does not rule on these issues if the claim is dismissed, if the court of second instance decides not to uphold the judgment of the court of first instance, the court of second instance needs to make further findings as to the circumstances surrounding the subject matter of the case.
If the court of second instance were to decide on a divorce on its own, it would have to make findings as to the facts and essence of the case from the beginning and classify them accordingly, which would replace the role of the court of first instance. Such a situation is unacceptable, as it would violate the constitutional right to consider a case before two instances. For this reason, the court of second instance in the described situation is obliged to return the case to the court of first instance for reconsideration.
by Redaktor | Mar 3, 2023 | news-en
One of the declarations that the spouses submit to the head of the State Office Civil (or before the consul in exceptional cases), there is a statement related to choosing the surname that each of them will bear from the moment of marriage. Pursuant to the regulation of art. 25 of the 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.), prospective spouses may alternatively, keep your current name, change your name to your last name of the spouse or, as a result of combining both surnames, bear a two-part surname. IN in practice, bearing in mind the principle of equality between spouses, both are left free about choosing your last name. The legislator's provision relating to the "combination" of surnames spouses are interpreted in such a way that they can freely determine the order of individual members, provided, however, that the maximum number of members in the surname will be two. Moreover, in case failure to submit an appropriate declaration, the legislator orders that the spouses remain with previous names. In the event of dissolution of the marriage as a result of divorce, the spouses have the option of returning to names they had before they got married. Art. 59 k.r.i.o. stating that within three months of the divorce decision becoming final a divorced spouse who, as a result of entering into a marriage, has changed his or her previous spouse surname, perhaps by a statement made before the head of the registry office or revert to the name he had before marriage. You should at the same time It should be stressed that the norm cited above constitutes the right of a divorced person spouse. This is indicated, for example, by the linguistic interpretation of the provision in which it is the legislator uses the word "may". This position is confirmed by judgments such as judgment of SA in Katowice of August 6, 2019, file ref. V ACa 147/18 and the decision of the Supreme Court of February 2, 1978, reference number IV CZK 11/78. The adjudicating panels put forward theses stating that "both the husband and wife are equally entitled to bear the surname for which they made a statement on the date contracting a marriage, and the provision of Art. 59 k.r.o. in no way constitutes a basis for to order a divorced spouse to change his name" and that "the ex-husband cannot demand to deprive his ex-wife of the right to the surname acquired by marriage, as the Code family and guardianship does not provide for such a possibility. In view of the above, it should be considered that the effect of a divorce may or may not be there must be a change of surname that the spouses had during the marriage. Surely such a regulation is an expression of granting a large degree of autonomy to the parties to civil law relations, w which is inherent in the marriage relationship.
