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.
by Redaktor | Aug 3, 2020 | news-en
In the judgment of the Court of Appeal in Lublin of November 21, 2019, file ref. III AUa 912/18, the court considered the issue of entitlement to a pension to a widow who was separated from her deceased husband. The court stated that the legal separation ruling excluded the widow's right to a survivor's pension, unless she was entitled to maintenance from her husband on the day of her husband's death. The actual existence of the marriage does not affect the right to a survivor's pension, since the separation ordered by the court has not been abolished.
In the case in question, the Social Insurance Institution (ZUS) Branch refused the widow's right to a survivor's pension. In its justification, the pension authority indicated that on the day of their death there was no marriage between the spouses due to the separation ordered by a final court judgment.
In its decision, the Court of Appeal indicated that in order to end the separation ordered by the court, the marriage must be dissolved by divorce, annulled or the separation abolished as a result of a court decision. This enumeration can be found in Art. 616 § 1 of the Family and Guardianship Code. The said judgment is constitutive in nature, so the effects of the separation cease only when the separation is abolished by the court.
This means that the mere taking up of a joint relationship by the separated spouses does not terminate it. The effects of the separation order are still ongoing.
The court also drew attention to the fact that the burden of proving the condition for obtaining the right to a survivor's pension - maintenance by the deceased spouse, rested in this case with the widow.
Pursuant to Art. 70 paragraph. 3 of the Act of 17 December 1998 on pensions and 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, is entitled to a survivor's pension, if she had the right to maintenance on his part determined by a judgment or a court settlement. The Court of Appeal stated that this provision also applied to the widow who was separated by the court.
The entitlement to the survivor's pension of a widow with a separated separation depends, therefore, on whether she was entitled to maintenance from her husband on the day of her husband's death. Moreover, this right should be established by a judgment or a court settlement. The court referred to the judgment of the Constitutional Tribunal of May 13, 2014, which states that in order to establish the right to a survivor's pension, it is sufficient for the spouses to agree on the manner of fulfilling the maintenance obligation.
by Redaktor | Jul 1, 2020 | news-en
When entering into marriage, often one of the spouses (usually the wife in Polish realities) often decides to take the surname of the spouse. After divorce, however, you can return to your last name. There are a few important points to keep in mind.
First of all, you must meet the deadline - 3 months from the moment the judgment becomes final. After this time, the change of surname will be possible only on the basis of the Act on changing the name and surname. In addition, the declaration must be submitted to the head of the registry office or consul. It is not possible to demand from the court that such a resolution should be included in the divorce decree. This view was included in the judgment of the Supreme Court of September 23, 1974 (reference number III CRN 188/74) and it remains valid to this day.
At the same time, it should be remembered that the possibility of changing your name after divorce is a right and not an obligation. A woman bearing her husband's surname (because this is the case most often) may not want this change for many reasons. First of all, by using a given name for many years of marriage, the wife could gain professional reputation and recognition, which she does not want to give up due to the breakup of the relationship. What is more, the children of the spouses usually have their common surname, so keeping the "married" surname may be to protect their good.
However, one can imagine a situation in which her husband, especially in conflict with his ex-partner, demands that she change her surname. So the question arises whether you can force your ex-spouse to change your name after divorce? This case was unequivocally resolved by the Supreme Court in 1978 in a decision of February 2, 1978; IV CZ 11/78. The Supreme Court stated then that "the ex-husband cannot demand that his former wife be deprived of her right to the name acquired by the marriage, since the Family and Guardianship Code does not provide for such a possibility". This decision of the Supreme Court has not lost its validity to this day.
by Redaktor | Jun 1, 2020 | news-en
As a rule, the court in a divorce decree decides on the fault of each of the spouses in the distribution of the marriage. The spouses have the opportunity to make consistent statements that they are demanding a verdict without being guilty. Such statement may be withdrawn by either party. However, is such withdrawal possible in proceedings at second instance?
The above-mentioned question was faced by the Court of Appeal in Szczecin, resolving this issue in the judgment of November 27, 2018, reference number act: I ACa 276/18. The court considered that withdrawal of the statement was also possible in appeal proceedings. What's more, its effectiveness does not depend on any additional conditions (e.g. in proceedings in the first instance the party could not withdraw the statement; only in the second instance did new evidence concerning e.g. infidelity come to light). The motivation of the party to withdraw the statement is also irrelevant. The court referred to the resolutions of the Supreme Court of November 24, 2006 (III CZP 105/06) and October 25, 2006, III CZP 87/06.
In the situation described, the court should set aside the judgment under appeal and remit the case. Adjudication of guilt in a divorce decree constitutes the "essence of the case" within the meaning of Art. 386 § 4 of the Code of Civil Procedure. The admissibility of bringing an action depends on the assessment of fault in the distribution of life. The court of first instance, without ruling on the guilt, did not recognize the substance of the case, and thus the judgment should be set aside.
After setting aside the judgment, the case will again go to the court of first instance, which should conduct the evidentiary proceedings, determining the guilt in the distribution of marriage.
