by Redaktor | May 2, 2022 | news-en
According to the Polish Family and Guardianship Code, when deciding a divorce, the court also decides whether and which spouse is to blame for the breakdown of the marriage. However, at the unanimous request of the spouses, the court decides not to adjudicate on the fault. In this case, the consequences are as if neither spouse was at fault. There is also a need to mention negative divorce grounds. Adjudication of divorce is not possible if it would damage the well-being of the minor children of the spouses or if for other reasons the divorce would be contrary to the principles of social coexistence. Divorce is also not admissible if it is requested by a spouse who is only guilty of the breakdown of the marriage, unless the other spouse agrees to the divorce or that the refusal of his consent to divorce is, in the given circumstances, contrary to the principles of social coexistence.
A foreign judgment cannot be recognized if, inter alia, its recognition would be contrary to the fundamental principles of the legal order of the Republic of Poland. Pursuant to the decision of the Court of Appeal in Warsaw of October 3, 1997 (file reference number I Acz 472/97, Appeal-Warsaw 1998, No. 1, item 10), "the fundamental principles of the legal order of the Republic of Poland include between in other words, the principle of the permanence of a marriage, which may be dissolved only under certain conditions in a manner prescribed by law. In particular, it is unacceptable to divorce without being guilty of taking into account the request of one of the spouses without the spouse being able to comment on this issue ". Therefore, it should be remembered that the recognition of a foreign divorce judgment may be made only if the judgment meets the conditions set out in Polish law, i.e. There are no negative grounds for divorce, there is a possible unanimous request of the spouses not to adjudicate on the fault.
In other legal orders, however, there may not be an element of adjudication on the spouses' guilt. Following the ruling of the Supreme Court of 18 January 2002 (file reference number I CKN 722/99), "the ruling of a foreign court violates the fundamental principles of the legal order in Poland, including when its effect is incompatible with the very concept of a specific legal institution in Poland, and not only with individual provisions regulating the same institution in both countries ".
Considering the above, it should be emphasized that in Polish law it is possible to order a divorce without establishing the spouses' guilt, and thus a foreign divorce judgment should be recognized when there is no judgment of guilt (decision of the Court of Appeal in Warsaw of March 28, 2006 (on reference number I ACa 1183/05).
by Redaktor | Apr 4, 2022 | news-en
The legal system applicable to the legal assessment of divorces is governed by Art. 54 of the Act of February 4, 2011, Private International Law (i.e. Journal of Laws of 2015, item 1792). Pursuant to paragraph 1 of the commented provision, the rule is that dissolution of a marriage, i.e. its termination during the life of both spouses , is subject to the common national law of the spouses upon request for marriage. This regulation is an expression of the principle of equal rights of spouses (A. Mączyński, Divorce in private international law, p. 19). In the case of Polish citizens, dissolution of marriage is subject to Polish law, even if they both have If the spouses are citizens of a foreign country, their common national law shall apply accordingly, and if they have more than one nationality, the law of the country with which they are most closely connected shall apply. if it would have consequences contrary to the fundamental principles of the Polish legal order, it would, for example, lead to discrimination against women. Such a position was already expressed in the decision of February 21, 1975 by the provincial court in Zielona Góra, stating that "the application of foreign law that does not allow a request for divorce by a woman is excluded pursuant to Art. 6 of private international law, because the discrimination against women introduced by them is contrary to the fundamental principles of the Constitution of the Polish People's Republic. " (Decision of S.WOJEW of February 21, 1975, II Cr 109/75, LEX No. 1726675._
The applicable law is determined in accordance with the moment of submitting the request to terminate the marriage, in particular, it may be the moment of submitting the request to the competent authority or submitting a declaration of will with appropriate content.
If it is impossible to establish the common national law of the spouses, the applicable law is the law of the state in which the spouses have their joint residence at the time of the request for divorce, and if such a place cannot be established - the law of the state in which the spouses had their last common habitual residence, provided that that one of them is still habitually resident there. The legal situation is similarly regulated when a marriage is dissolved between persons whose citizenship cannot be established or who do not have the citizenship of any country. (K. Pietrzykowski [in:] International private law. Commentary, edited by J. Poczobut, Warsaw 2017, art. 54.)
Article 54 (1) 3 p.p.m. provides that in the absence of circumstances determining the jurisdiction of the law, pursuant to para. 1 or 2, Polish law shall apply. Sometimes, the application of Polish law may be provided for directly by the provisions of foreign law, if the spouses are domiciled or habitually resident in Poland. It should be borne in mind Art. 365 and 435 of the Civil Code - for whom the decision of the Polish court dissolving the marriage through divorce becomes effective as soon as it becomes final.
by Redaktor | Mar 4, 2022 | news-en
The issue of fees incurred in connection with pending divorce proceedings was regulated in the Act of 28 July 2005 on court costs in civil cases.
Article 26 u.k.s.c. statutes that the fixed fee for a divorce petition is PLN 600. At the same time, it should be noted that in a situation where the divorce would result in the issuance of a judgment without ruling on the fault of any of the parties, the court will reimburse the plaintiff who pays all the costs - half of them, i.e. PLN 300. Moreover, from the former spouse, the Claimant has the right to demand a refund of one-fourth of the court fee in the amount of PLN 150.
Additional costs will not be incurred in connection with the need to resolve issues such as parental responsibility or alimony. In these cases, if the parties have minor children, the court will adjudicate obligatorily.
If the parties decide to challenge the judgment issued in the case, regardless of the scope, i.e. even if the appeal is submitted to part of the decision, e.g. referring only to the issue of regulating contacts with children, the costs of the proceedings will be the same as before the first instance. The required fee will therefore be PLN 600.
The additional fee, in accordance with the provisions of Art. 26 §2 u.k.s.c. you must also submit a spousal maintenance decision. It is relative and amounts to 5% of the annual value of the awarded amount. Also, in the case of ordering the eviction of one of the spouses, a fee of PLN 200 is collected for the decision. Additional costs, in the amount of PLN 11, are also required for submitting a declaration of return to the previous name.
by Redaktor | Feb 4, 2022 | news-en
In the decision of 20 November 2020 (III CNP 6/20), the Supreme Court recalled that "for the acceptance of joint guilt for the breakdown of marriage between spouses, it is enough if the other spouse's conduct contributed to this breakdown, even if the degree of his fault was smaller; fault in the breakdown of marital life cannot be graded. " This means that although there may be (and considerable) differences in the extent to which the spouses have contributed to the breakdown of the marriage, the divorce will still be ordered by both spouses. The judgment will not mention who is more guilty of the breakdown of the marriage (possibly it may be described in the justification). The differences in the degree of guilt will also not affect the maintenance obligation between spouses after divorce.
by Redaktor | Jan 3, 2022 | news-en
The courts recall that cohabitation is not a marriage. For example, in the judgment of February 24, 2021 (I ACa 337/20), the Szczecin Court of Appeal emphasized that "cohabitation by itself cannot be a source of any rights and obligations regulated in the family and guardianship code. For this reason, the law on marriage cannot be applied to cohabitation, even by analogy. This also applies to the provisions of the Family and Guardianship Code on matrimonial property relations, including settlements following the termination of commonality. A different interpretation would mean, to some extent, the equation of marriage and the informal relationship, for which there is no legal basis. On the other hand, there is no doubt that there is a need to make property settlements after the end of cohabitation. ”. Earlier, the District Court in Olsztyn similarly ruled (decision of November 13, 2019, IX Ca 1195/19), stating that "there are no grounds for applying in the case of settlement of cohabitation the provisions on marital property relations, even by analogy, because it would de facto mean equating marriage and cohabitation in this respect - for which there is no legal basis. Especially because it would destroy the established legal system in which cohabitation was consciously recognized as not subject to regulation by the provisions of the family and guardianship code ”. Therefore, especially the economically weaker party of cohabitation (usually a woman) should strive to get married, as cohabitation will expose her to a high legal and financial risk.
by Redaktor | Dec 1, 2021 | news-en
The Court of Appeal in Poznań in its judgment of February 12, 2020 (I ACa 230/19) recalled that it is not possible to obtain a divorce if it is contrary to the principles of social coexistence. In particular, when the divorce could not be reconciled with the gross harm suffered by the spouse who opposes the divorce, or when serious social and educational considerations speak against the divorce. It was a repetition of the view expressed in the resolution of the full composition of the Civil Chamber of the Supreme Court of March 18, 1968.
