by Redaktor | May 4, 2020 | news-en
At the meeting in the Chamber of Labor, Social Security and Public Affairs of 9 January 2018, the Supreme Court considered the issue of whether the divorce case was an urgent matter. If the answer to this question were in the affirmative, it would mean that the courts should deal with divorce first. In the case of divorce of the applicant S.K. for over 13 months from the judgment of the court of first instance and for more than 11 months after the appeal was lodged, no actions were taken aimed at its substantive examination. However, the Supreme Court stated that the length complaint is not admissible, as divorce cases are not urgent.
The Supreme Court cited the provisions of the Act of 17 June 2004 on a complaint about a violation of a party's right to hear a case in preparatory proceedings conducted or supervised by the prosecutor and court proceedings without unjustified delay. Pursuant to these provisions, a party may file a complaint stating that there has been a violation of the right to hear the case in the proceedings without undue delay, if the proceedings aimed at issuing a decision concluding the proceedings in the case:
- lasts longer than necessary to clarify material factual and legal circumstances;
- it takes longer than necessary to settle an enforcement or other case regarding the enforcement of a court decision (length of proceedings).
In accordance with the content of art. 2 clause 2 of the aforementioned Act, in order to determine whether the case has been excessively lengthy of proceedings, one should in particular assess the timeliness and correctness of actions taken by the court or by the prosecutor conducting or supervising the preparatory proceedings. In making this assessment, account shall be taken of the total time taken to date from its initiation to the time the complaint is examined, as well as the nature of the case, its complexity and relevance to the party who filed the complaint.
The Supreme Court noted that the provision of the Act does not specify a specific waiting time for hearing the case. However, it is assumed that proceedings in which a trial has not been set for more than 12 months in a given instance can be considered protracted. The court emphasized that this does not yet mean that this deadline constitutes a rigid time limit for assessing the compliance of proceedings with the conventional, constitutional and procedural directives of judging a case within a reasonable time.
The Regulation of the Minister of Justice of December 23, 2015. Regulations governing the operation of common courts show that cases should be heard in the order in which they are received, unless specific provisions specify the time limit for their consideration or there is another justified reason for changing this order resulting from the organization of the court's work. Out of order should urgent cases be referred to the dates of hearings or meetings. In addition, in particularly justified cases, the chairman of the department may order that the case be considered out of order.
In § 2 point 5 of the cited regulations, examples of urgent matters are listed. The list shows that divorce cases do not fall under the category of urgent cases and should, as a rule, be assigned in the order in which they are received.
The Supreme Court pointed out that the Polish model for resolving divorce cases is not directed at the maximum speedy completion of these cases, but rather at the conciliatory actions of the Court and the desire to maintain the stability of the marriage.
by Redaktor | Apr 4, 2020 | news-en
The resolution of the Supreme Court of December 21, 2017 (reference number III CZP 66/17) concerned such a situation.
The Supreme Court emphasized that the ability to act (procedural capacity) is an absolute, positive prerequisite for admissibility of the substantive resolution of the case. The plaintiff's lack of procedural capacity, if not completed, will result in the rejection of the claim.
Linguistic arguments, in conjunction with a systematic and historical interpretation, lead to the conclusion that a partially incapacitated person has no procedural capacity in the divorce proceedings. This position, however, requires assessment also in the light of legal acts setting modern international standards regarding the legal situation of persons affected by intellectual disability, which are directed at maintaining the legal capacity of partially incapacitated persons.
For these reasons, the Supreme Court emphasized that if a person covered by a guardianship files an action for divorce on their own, the assistance provided by the guardian should be limited to examining whether the person understands the meaning of this act, is able to assess its juridical effects, assesses them and is aware of their case, and whether the decision to initiate the trial came from her and was not taken under the influence of third parties. If necessary, the guardian should provide the person for whom it has been appointed with the necessary support in this regard. If the assessment of these elements is positive, the guardian should respect the decision to bring an action and take action to approve this action and continue the process.
In addition, the curator's tardiness should not have negative consequences for a partially incapacitated person. Therefore, if the probation officer does not comply with the deadlines imposed by the Court for confirming the procedural act, the court before which the court is seised should inform the guardianship court before rejecting the claim in order to give the probation officer instructions or instructions or consider the need to change the probation officer.
by Redaktor | Mar 3, 2020 | news-en
The Supreme Court, by resolution of April 12, 1990 (reference number III CZP 12/90), stated that when deciding on the divorce of spouses, they are obliged to raise the issue of maintenance for their joint child, as it is one of the material elements of the legal norm arising from art. 58 of KRO. The divorce court does not have to determine the amount of such a benefit from scratch - it may (and should) take into account all kinds of settlements or arrangements between the parties, as well as a judgment of another court, if the latter has already ruled on maintenance. In such a situation, the court may uphold maintenance payments established by settlement, contract or other verdict or repeat such a settlement (if the commitment is expressed in a foreign currency, the equivalent of the liability in PLN can be awarded using the exchange rate as at the date of adjudication). Therefore, the divorce judgment must include a decision regarding expenditure on a joint minor child, as the court requires such action.
by Redaktor | Feb 3, 2020 | news-en
The Family and Guardianship Code provides when divorce and legal separation can be ordered. Neither divorce nor legal separation is permissible if the welfare of the spouses' minor children is harmed as a consequence. Rejection of a divorce application (or separation) for this reason is relatively rare, but it is possible.
The premise of the child's well-being was commented, among others, by the Court of Appeal in Rzeszów in its judgment of 8 April 2010, reference number act: I ACa 83/10. This ruling emphasized that the condition in question is intended to protect the child against the negative effects of parents' divorce, and is unable to protect him against the effects of the breakdown of marriage between them. The court should therefore determine whether the divorce decree will have more negative effects than those caused by the permanent distribution of intercourse between them (and often also by arguments). It is therefore necessary to answer the question why maintaining a dead marriage serves the good of the child.
There are of course situations in which the dismissal of a divorce application (or separation) is justified from the point of view of the child's well-being. Most often, a child's chronic illness is given here. Also, when the decay of life does not affect the child negatively (for example, the child does not know that something disturbing is happening, the parents behave correctly with him and in a sense pretend to be a loving family) divorce decree can have a negative impact on the good of the child. First of all, remember that each case should be assessed individually and all circumstances should be considered.
by Redaktor | Jan 4, 2020 | news-en
Pursuant to the judgment of the Gdańsk Court of Appeal of 24 October 2012, III AUa 256/12 The decision to abolish the separation is constitutive and the effects are effective for the future from the moment it becomes final. The cessation of the effects of separation occurs from the moment of its decision and does not treat the time of separation as "non-existent". As a result of the separation decision, some elements of the legal situation of the spouses are permanently shaped, while others, such as the personal rights and obligations of the spouses, are subject to a complex assessment after lifting the separation: for the period of separation they should be assessed in accordance with the legal regime regulating the effects of this institution, while the qualification legal proceedings of spouses after their abolition takes place on the basis of provisions regulating the effects of marriage.
This means that, despite the fact that the actual situation improved between the spouses before the decision to abolish the separation, it cannot have any effect without the ruling mentioned above. It is only the final decision on the abolition of separation that changes the legal situation of the spouses for the future. It is not possible for such a provision to be relevant for the assessment of events in the period when separation was ruled, i.e. until the judgment becomes final.
In accordance with art. 61 (4) § 1 of the Penal Code. a separation decision has consequences such as the dissolution of a marriage by divorce, unless the law provides otherwise. Due to this, under the Act of 17 December 1998 on pensions from the Social Insurance Fund, the legal situation of spouses separated is the same as that of divorced spouses.
At the same time, it can be noted that in the discussed judgment the court leaned over art. 70 section 3 of the Act of 17 December 1998 on pensions from the Social Insurance Fund. This provision was the subject of an examination of the Constitutional Tribunal, which by judgment of May 13, 2014, reference number SK 61/13 ruled that it is incompatible with art. 67 section 1 in connection with art. 32 section 1 of the Polish Constitution to the extent in which the entitlement of a divorced spouse to obtain a survivor's pension depends on the requirement to have the right to maintenance on his part on the day of her husband's death, determined only by a judgment or court settlement. The Tribunal decided that confirmation of the right to maintenance may also be an agreement between divorced spouses. An implicit contract is also acceptable.
by Redaktor | Dec 4, 2019 | news-en
Exclusion of the principle of open proceedings in matrimonial matters
Pursuant to Article 45 of the Polish Constitution, everyone has the right to examine his case in an open manner. This means that, as a rule, all hearings are public, anyone can attend, of course, in the role of the public. Both parties, their proxies and people from the street or the press have the right to be in the room.
However, in matrimonial matters, the Code of Civil Procedure excludes the principle of openness. This is because delicate issues related to the private and family life of the parties are often raised during the trial, e.g. divorce. Proceedings in cases of divorce or separations are taking place behind closed doors. The parties need not fear that the intimate, often also shameful, details of their private life will be disclosed in public. This can be important both for celebrities whose lives are interested in the media, and others who do not want to publicly disclose their family secrets.
Lack of disclosure does not mean, however, that only the plaintiff and defendant may be in the courtroom. The parties may be represented by proxies, in addition, witnesses may also be summoned for the hearing. In addition, at the joint request of the parties, the court may decide to hear the case publicly, but it must be certain that the transparency of the proceedings does not endanger morality.
Exclusion of publicity does not include the announcement of the judgment itself, which must be held in public. However, this only applies to the sentence itself, i.e. for example: whether divorce / separation was adjudicated or not; whether the court found guilty for breaking down the marriage, and if so, how; whether and in what amount maintenance has been granted to the children or spouse, etc. After the announcement of the sentence, the chairman or judge-rapporteur gives orally the main reasons for the decision or justifies it, however, he may fail to do so if the case was heard in camera. In divorce and separation cases, the motives for the settlement or justification will usually be given behind closed doors.
