by Redaktor | Nov 3, 2021 | news-en
The ordinary maintenance obligation towards the ex-spouse after divorce (i.e. a spouse who is not solely guilty of the breakdown of the marriage) expires after 5 years. What if alimony is voluntarily paid longer - does this obligation continue?
The Supreme Court stated that no (Judgment of the Supreme Court of 29 July 2020 I UK 10/19). According to the Supreme Court, "payment of sums of money many years after the divorce cannot be treated as an implied declaration of will to extend the maintenance obligation beyond the five-year period, because while the judgment on the change of the amount of maintenance or limitation of its duration is declarative, the judgment issued in on the basis of art. 60 § 3 k.r.o. it is constitutive. Failure to obtain, under a court judgment, the extension of the five-year period referred to in Art. 60 § 3, second sentence, of the Family Code, causes the expiry of the maintenance obligation of the divorced spouse ”.
The Supreme Court also recalled the rules for the extension of the 5-year period of the maintenance obligation towards the ex-spouse: "the extension of the maintenance obligation is possible only in the event of" exceptional circumstances ". The meaning of this concept cannot be interpreted broadly (exceptiones non sunt extendendae). Thus, it should not cover normal circumstances that occur in human life and are related to the aging process and loss of strength in relation to earning opportunities. These extraordinary circumstances do not arise if the relatives of the spouse (s) are able to provide the divorced spouse with full support. In other words, which means failure to meet one of the conditions necessary for the granting of a survivor's pension, consisting in the possession of the right to maintenance established by a court judgment or court settlement on the date of the ex-husband's death (Article 70 (3) of the U.e.r.f.u.s.). In such a situation, it is irrelevant that the former spouses live together after the divorce, run the household together and provide each other with material help voluntarily. "
by Redaktor | Oct 4, 2021 | news-en
The Court of Appeal in Warsaw, in its judgment of September 15, 2020, specified the obligations of courts with regard to the elements of the divorce judgment
According to the court, "contained in Art. 58 § 1 k.r.o. the term "the court takes into account the written agreement of the spouses" does not mean that the court has been released from the obligation to cover all matters relating to the family listed in Art. 58 § 1. k.r.o. A joint application of the divorcing spouses may not be allowed to fail to resolve these issues ”. This means that the court must always adjudicate on parental authority over the common minor child of both spouses and on the parents' contacts with the child, and the amount in which each spouse is obliged to bear the costs of maintaining and bringing up the child. “On the other hand, it is unacceptable to refer to the content of the agreement as a specific annex. Even if the agreement is deemed to be authoritative for the manner of exercising parental responsibility and contacts with the child, the court should transfer its content to the operative part of the judgment. The agreement cannot be treated as a settlement, and therefore cannot lead to the discontinuation of proceedings in this respect and does not constitute an enforcement order. Such a title is a court decision subject to compulsory execution, and therefore it is necessary to precisely specify the rights and obligations of each parent. "
by Redaktor | Sep 2, 2021 | news-en
The plaintiff brought an action against the defendant to remove the effects of the infringement of personal rights by the defendant's failure to further prevent the plaintiff from contacting the minor daughter of the parties. The Court of Appeal made a thorough analysis of the evidence to determine the admissibility of meeting the Plaintiff's demands.
The parties met in Austria. Before their daughter was born, the respondent returned to Poland, where she was raising the child. After some time, the defendant initiated contact between the father and the daughter. Meetings were held in Poland, always in the presence of the mother, on average four to five times a year. Each time, the meetings lasted about 45 minutes. During this time, the interested parties usually eat their meals, talked, played or shopped. During each of these meetings, there were quarrels and even quarrels between the parties, which were caused, in particular, by financial settlements between former partners, the purchase of certain things and their financing by the plaintiff. As for the bond between the Plaintiff and his daughter, it should be considered that their relationship was good. The girl was not afraid of her father, she was happy to spend time with him.
Due to the parties' constant quarrels caused by the finances, the plaintiff's contacts with his daughter were weakened or even prevented. The plaintiff filed a lawsuit in which he accused the Defendant that in the period from June 2015 to August 2016, the defendant infringed his personal interest in the form of an emotional bond between him and his daughter, limiting the plaintiff's personal contacts with the child, as well as telephone and with the use of electronic communicators, leading to an almost complete severance of these contacts. As a result of severing contact with the daughter, the plaintiff experienced harm, pain and emotional suffering in the analyzed period.
Taking into account the nature of the infringed personal interest of the plaintiff, the Court ordered the defendant to refrain from further preventing the plaintiff from contacting a minor daughter. Both parties appealed against this ruling.
Indeed, the parties were not in dispute about the circumstances related to the course of contacts between the claimant and the parties' minor daughter. Each of the parties only presented the reasons for the conflicts that arose in this connection and the motives for the behavior of the other parent differently.
The appellate court shared the view of the court of first instance that a personal and emotional bond with the closest family members may be included in the category of personal rights within the meaning of Art. 23 of the Civil Code, subject to protection pursuant to the provisions of Art. 24 of the Civil Code and art. 448 of the Civil Code The Court of Appeal was not convinced that the personal rights of the Complainant had been violated, as the very right to cultivate a bond with a common child was not violated. In the opinion of the Court of Appeal, even if such an attitude of the defendant constituted a breach of the conditions resulting from the above-mentioned the decision of 17 April 2015 (establishing contact with children), it was not tantamount to infringement of the personal rights of the claimant to maintain ties with the child as defined above. While the claimant wanted to exercise the rights granted to him in accordance with his own interpretation of this judgment, he should initiate a procedure for its compulsory enforcement, regulated in the provisions of the civil procedure (execution of the judgment).
by Redaktor | Aug 2, 2021 | news-en
In the case of international child abduction by one of the parents, the provisions of the Convention on the Civil Aspects of International Child Abduction, signed at The Hague on October 25, 1980 (hereinafter referred to as the Convention) apply. The provisions of this convention, as well as Council Regulation (EC) No. 2201/2003 of 27 November 2003 (hereinafter referred to as "the Regulation) are referred to by the Supreme Court in its decision of 17 March 2021, reference number I CSKP 38/21 .
Pursuant to Art. 13 lit. b of the Convention "(...) the judicial or administrative authority of the requested State is not obliged to order the return of the child if the person, institution or organization opposing the return of the child demonstrates that there is a serious risk that the return of the child would expose the child to physical or mental harm or any other harm. way would put them at a disadvantage. "
It should be borne in mind that the expression "serious risk" contained in the discussed convention is of an assessment nature and the court may decide differently in any case concerning the return of a child to the country of his residence, depending on whether it considers the risk to be sufficient. serious or not, based on the evidence gathered. The Supreme Court decided that the one-off violation of the child's physical integrity provided for in Art. 2 point 2 of the Act on Counteracting Domestic Violence is not tantamount to "a serious risk of exposure to physical violence" referred to in Art. 13 lit. b of the Convention.
As a consequence, it is for the court hearing a particular case to decide whether, in a given situation, a single violation of bodily inviolability will make it possible to refuse to surrender the child under the Convention or not. In this particular ruling, the Polish court found that a single hit of a child with a guitar cable on the buttocks by the father did not pose a serious risk of exposure to violence, as the incident was of a one-off nature and the child generally had good contact with the father.
by Redaktor | Jul 1, 2021 | news-en
The Supreme Court in its decision of November 7, 2000 in the case No. I CKN dealt with the issue of prohibiting a parent from personal contact with a child in connection with the deprivation of parental rights. The case concerned a father who had abandoned his child and had not contacted him in any way for 8 years. After this period, the father changed his mind and decided to renew contact with the child. The child's mother brought an action against the child's father for deprivation of parental rights and a ban on personal contact with the son. The court of first and second instance upheld the plaintiff's claims. On the other hand, the Supreme Court, as a result of a cassation appeal brought by the defendant, revoked the ban on personal contact between father and son. According to the Supreme Court, the right to personal contact with a child is a completely separate issue from parental authority, therefore, the deprivation of this authority does not automatically entail the application of this prohibition. According to the thesis of the order: "Forbidding parents from personal contact with a child may be imposed exceptionally, e.g. when maintaining personal contacts between parents and a child threatens their life, health, safety or demoralizes the child" (quoted in the Resolution of the Supreme Court of 7.11.2000. , I CKN 1115/00, OSNC 2001, No. 3, item 50).
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.
