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.
by Redaktor | Feb 3, 2023 | news-en
The decree of February 3, 1947 is the legal basis for recognizing divorces granted on the basis of the provisions of Soviet law by the USSR authorities to Polish citizens in the period from September 1, 1939 to January 29, 1946 in the areas incorporated into the USSR under the agreement on the Polish-Soviet state border from 1946. Such divorces are therefore recognized by law. This regulation is important because it is a special provision in relation to Art. 17 points 3 of the Act on the law applicable to private international relations of 2 August 1926. This article provides that if the authorities of a foreign state did not apply Polish law to the divorce of Polish citizens, then such a divorce decree is not subject to recognition or enforcement in the territory of the Republic of Poland. On the basis of the Decree of 1947, it is possible to recognize a decision issued in the case of Polish citizens, even though the basis for such a decision was foreign law.
by Redaktor | Jan 2, 2023 | news-en
In the judgment I ACa 100/21, the Court of Appeal in Kraków ruled that in order to determine the fault of the spouse who was not found guilty of the breakdown of the marriage in the earlier case of the parties for separation, it is not enough to prove his passivity in subsequent behavior, understood as lack of activities aimed at restoring broken marital ties.
This order was issued by a court hearing an appeal against a divorce decree of a married couple who had been separated prior to the commencement of the divorce case. Separation was ordered due to the sole fault of the husband (the claimant in the divorce case), who, without good reason, moved out of the apartment he shared with his wife and children and maintained close contacts with other women. After the separation, the parties did not maintain any contact with each other, and the husband became permanently involved with another woman and moved in with her. After several years of separation, the husband filed for divorce. The court granted the divorce on the sole fault of the plaintiff, arguing that since the formal separation of the parties, he had not taken any steps to save the marriage and had been in relationships with other women. The plaintiff appealed against the judgment.
The appellate court rejected most of the plaintiff's allegations regarding irregularities in determining guilt by the court of first instance, but admitted the plaintiff was right in the claim that the fact that the parties were separated due to the plaintiff's fault does not mean that the divorce was also due to the plaintiff's fault. In order to finally determine the fault in the breakdown of the marriage, it is necessary to assess the behavior of the parties after the separation. It cannot be ruled out that the spouse found solely to blame for the breakdown of the marriage in a separation case, after its ruling, tries to rebuild the broken marriage ties, while the other spouse behaves culpably. However, the court found that such a situation did not occur in the case in question - the sole fault of the husband was evidenced by the fact that after the separation, he did not change his behavior, still remaining in relationships with other women and did not take actions that would imply that he was trying to renew reestablish broken marriage ties.
According to the Court of Appeal, in order to determine the guilt of the spouse who was not found guilty of the breakdown of the marriage in the earlier case of the parties for separation, it is not enough to prove his passivity in later behavior, understood as the lack of activity aimed at restoring broken marital bonds, in order to determine the fault of the spouse in a divorce case. On the basis of the discussed case, the defendant cannot be blamed for the breakdown of the marriage solely on the basis of her failure to rebuild the relationship with her husband, who did not change his behavior after the separation, remained in a relationship with another woman and lived with her all the time. In turn, the defendant, despite the fact that her relationship was separated, remained loyal to the plaintiff and did not enter into extramarital relations.
To sum up: when ruling on the fault of the breakdown of life in a divorce judgment, one cannot automatically assign blame to the spouse who was found solely guilty in the separation case, but one must assess the behavior of the parties after the separation has been issued. However, the lack of efforts to rebuild the relationship by the spouse previously found innocent cannot constitute an independent basis for assigning blame to him for the breakdown of the marriage in the divorce judgment.
by Redaktor | Dec 2, 2022 | news-en
Undoubtedly, one of the central points of reference for family law as a separate sub-branch of civil law is the institution of divorce and separation. Both of the above issues are one of the main subjects of regulation not only under Polish law, but also in relation to other European systems. It is therefore worth considering the similarities and differences in the assumptions of the Polish legislator and, for example, the French, British, Italian and Spanish legislators. Starting from the legal status that can be dealt with in France, it should be noted that separation is sometimes referred to as "bodily separation". As in Poland, it is an institution separate from divorce. Another convergence is based on the procedural aspect and refers to the situation when the claiming spouse files two lawsuits with the court (one for a divorce, the other for a separation). It is then that the French court, following the example of the Polish one, examines the application for divorce. According to J. Gręźlikowski, the grounds for separation in French law are the mutual consent of the spouses, a long-term break in cohabitation and the fault of the spouse. An interesting thread in the context of French solutions is the ambiguous issue of the obligation to maintain mutual fidelity of separated spouses. However, the dominant view in the literature (M. Świderska) is that the duty of fidelity lasts throughout the duration of the marriage relationship, given the lack of contradiction with the state of separation. The British legal system is also worth analyzing. Like Polish and French legislation, it makes separation an institution independent of divorce. However, the grounds for separation in Great Britain are defined differently than in French and Polish law. These include, alternatively, adultery, abandonment, cruelty, rape or attempted rape, incurable mental disorders, and de facto separation. Pursuant to the regulation of the Polish 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.”), the criterion for separation is the complete breakdown of marital life on the economic, spiritual and physical plane, which is literally referred to in Article 61(1) § 1 of the Family and Guardianship Code. Moreover, in the context of British legislation, it is rather clearly stated that separated spouses are still obliged to Unlike in the above-mentioned legal systems, the dependence of the institution of separation and divorce is regulated in Spanish and Italian law, because in these regions separation is often a kind of "prelude" to divorce, as it is one of the catalysts for the divorce court decision. Separation orders are structured in a way very similar to that of the British legislature, such as: adultery, separation imprisonment for more than three years, imprisonment for more than six years, alcoholism, drug addiction, mental illness, breach of duties towards children or spouse. With regard to the Italian regulation, it is worth mentioning that separation is particularly important here due to the subsequent divorce procedure. The spouses must have been separated for a minimum of 3 years before filing for divorce. In Italy, moreover, there are three types of legal separation - i.e. judicial, consensual and temporary. Concluding, it can be stated that the institution of separation is undoubtedly universal in the law of European countries due to its regulation in their legislation. However, the way in which the legal systems analyzed above treat the discussed issue is not universal. De lege ferenda, it is worth calling for the unification of the developed standards due to, for example, the issue of integration within the EU.
