by Redaktor | Nov 4, 2022 | news-en
At the unanimous request of the spouses or at the request of one of them, the competent regional court, in the event of a complete breakdown of the marriage - understood as the cessation of emotional, physical and economic ties - is entitled to pronounce the separation. On the basis of this article, we will limit ourselves to legal separation only, not dealing with the actual separation, which depends on the sole will of the spouses (thus not giving rise to legal effects and, at the same time, not abolishing the obligations that have been imposed on the spouses by law). The legislator, who under the Polish constitution was bound by the duty of the environment to protect and take care of the family, decided to introduce two negative premises which make it impossible to issue a separation order. It is about the welfare of minor children and the conflict with the principles of social coexistence.
Basically, legal separation is a self-standing institution of family law, independent of the institution of divorce. The restitution function is indicated as its basic function. However, it is worth pointing to the position of Magdalena Habdas, according to which "the (...) restitution function should not be equated with the fact that the separation is to enable the spouses to return to cohabitation, because the law does not imply that the spouses are obliged to take corrective actions at that time to save relationship. This function consists in the proper shaping of personal and property relations between the spouses in the period when their relationship is in a crisis phase, but it is not impossible to heal the relationship, which may or may not take place. For this reason, one should indicate not so much the restitution function of separation, but its ordering function ”.
In non-contentious proceedings, the court is bound by the parties' request. This means that the court is not empowered to grant a divorce if neither party has requested it. It should be emphasized that divorce takes precedence over separation. Thus, in a situation where two requests for divorce and separation would be filed simultaneously, the court should issue a divorce decree, unless the separation judgment would be the only correct one. At the same time, as a general rule, it was assumed that the legal separation would have the same effects as the dissolution of a marriage by divorce, unless the law provides otherwise. Exceptions were formulated in the same Art. 61 [4] k.r.o. One of them is to maintain the obligation of mutual assistance between spouses.
The obligation of mutual assistance between spouses is of a non-pecuniary nature, it applies to both the material and the non-material zone. As a consequence, it may result in the imposition of the obligation of financial support, but also spiritual, mental or organizational. Maintaining the mutual assistance obligation must be justified on grounds of equity. The attempt to decode the said general clause involves both doctrine and jurisprudence. It is impossible to formulate a closed catalog of situations that can be considered justified on the grounds of equity, as it is necessary to examine the facts each time. For this reason, only as an example should be indicated - following the Provincial Administrative Court in Bydgoszcz, which in the judgment of 29 September 2010 emphasized that "the illness and disability of the separated spouse should be definitely considered a circumstance covered by the considerations of equity, referred to in Art. 61 [4] § 3 k.r.o. " (Judgment of the Provincial Administrative Court in Bydgoszcz of 29 September 2010, II SA / Bd 797/10, LEX No. 752179). On the other hand, "in the facts in which the husband, after serving the sentence of imprisonment, demanded that he be allowed to use the apartment, the tenant of which was his wife, and the separation was ordered through the fault of the husband, who was aggressive and abusing alcohol, the court found that there were no such considerations of fairness. . Despite the fact that the husband was in poor health and had a small income, the court found that he should satisfy his housing needs on his own, e.g. by renting a flat together. In the opinion of the court, it would be difficult to consider it right to allow him to use the apartment in a situation where his aggression and arguments led to the decision of separation due to his fault, and meeting his housing needs is possible, although it will not provide him with comfortable conditions. " (M. Habdas [in:] The Family and Guardianship Code. Commentary, ed. M. Fras, Warsaw 2021, Art. 61 (4)).
When considering the obligation of mutual assistance, it is worth bearing in mind that it should not be equated with the maintenance obligation of separated spouses, nor does it mean that separated spouses are entitled to an equal standard of living.
by Redaktor | Oct 3, 2022 | news-en
Pursuant to Art. 940 of the Civil Code (Act of April 23, 1964 - i.e. Journal of Laws of 2022, item 1360, as amended), the legislator provided for a situation in which during the life of both spouses one of them brought an action for separation through the fault of the other spouse. However, before the ruling in the case was made, the defendant spouse died and his property is subject to the rules of statutory inheritance.
As is known, the entry into all the rights and obligations of the testator in this way is provided for in Polish law in the event that the deceased did not leave a valid will or when he appointed the testator only to a part of the inheritance. Statutory inheritance also applies when the heir, due to inability to inherit, cannot accept the inheritance or does not want to accept it. Of course, it must be borne in mind that using the institution of substitution or increment will disable the path to inheritance according to statutory rules.
Nevertheless, the subject of this study is not the regulation relating to the methods of acquiring inheritance, but the issue on the borderline of family law and inheritance law, i.e. the issue of excluding from inheritance a spouse whose spouse died during the separation proceedings due to the fault of the defendant. Firstly, it should be remembered that as a result of the claimant's death, the process is discontinued, as a result of which the court does not order the spouses to separate if one of them dies before the sentence is passed. However, it is possible to apply to the defendant the institution in the form of conviction, which in turn leads to the launch of a specific sanction, which is the exclusion from inheritance of the deceased spouse. The judgment in which the court makes such a decision is a consequence of an application from an heir who inherits by statute with the defendant spouse. The time limit for bringing an action is six months from the date on which the heir learned about the opening of the estate, but no more than one year from the opening of the estate. As indicated by the Supreme Court in the judgment of April 12, 2002 (the judgment of the Supreme Court of April 12, 2002, I CKN 1345/99, LEX No. 55556), the time limits specified in Art. 940 § 2 of the Civil Code belong to the category of tight deadlines. The lapse of such time-limits entails the expiry of a time-limited entitlement. In the opinion of the Supreme Court, the possibility of applying the provisions on the limitation of property claims to such time limits (Art. 117 et seq. CC) is, in the opinion of the Supreme Court, controversial. The court does not decide unequivocally on this issue, but emphasizes that with regard to the time limits specified in Art. 940 § 2 of the Civil Code there are no arguments for allowing such a possibility. Against such
On the other hand, according to the adjudicating panel, the action is justified by the fact that the order of inheritance should be determined and definitively as soon as possible.
Summarizing the above, it is necessary to conclude about the purposeful action of the legislator, which takes into account the actual relations between spouses. Thus, it prevents a situation in which the property of the deceased spouse would be unjustly transferred to the other spouse who was guilty of the breakdown of the marriage. Polish inheritance law makes the position of the spouse-heir clearly strong, taking it into account at three levels of statutory inheritance out of the five distinguished by the doctrine. Art. 940 of the Civil Code is supposed to eliminate the potential contradiction of inheritance with the principles of social coexistence. It should be remembered, however, that the court should always check whether the request of the spouse bringing the legal separation suit was justified, which is clearly emphasized by the legislator in § 1 of the above-mentioned art.
by Redaktor | Sep 2, 2022 | news-en
Art. 361 of the Family and Guardianship Code introduces the institution of the spouse's objection to the management of the joint property of the other spouse. Pursuant to § 1 of the provision, the spouse may oppose the activities of the management of the joint property intended by the other spouse, with the exception of activities in everyday matters or aimed at satisfying the family's ordinary needs or undertaken as part of a gainful activity. In the further part of the provision, the legislator additionally emphasizes that the objection is effective against a third party, provided that it could become acquainted with it before making a legal act.
The legislator does not regulate sanctions for performing a legal act despite the objection raised. The literature agrees that in such a case it should be assumed that the legal act is absolutely invalid (Art. 58 § 1 of the Civil Code) as contrary to the act (B. Kubica [in:] Family and Guardianship Code. Comment, edited by M. Fras, M. Habdas, Warsaw 2021, article 36 (1).).
It is worth referring here to the judgment of the Court of Appeal in Katowice of February 20, 2009, I ACa 32/09, in which the adjudicating panel undertook a broader interpretation of the provision under analysis. Pursuant to SA's thesis, the form of the spouse's objection was not clearly defined by the legislator. Nevertheless, the will of the spouse should be clearly articulated, which means that it should be expressed in such a way that it could be read by the counterparty of the intended activity. The aim of the person who wants to oppose the act intended by the other spouse is therefore to take such actions to inform the third person about his position.
The attention of the doctrine often focuses on the relation of art. 361 and art. 37 k.r.o. Some authors indicate that the objection can be applied both in the situations indicated in Art. 37 k.r.o. as well as all the others (except those that have been explicitly excluded), while others argue that the objection does not apply to legal acts for which the obligatory consent of the spouse is required.
Finally, it should be noted that the meaning of the objection referred to in Art. 361 k.r.o. has relatively little practical significance. The objection may only be effectively applied to the intended activity and not to the one already performed. This means that the other spouse is really unable to raise an objection if he does not know about the plans to perform the action (which he can often find out only from the other spouse).
by Redaktor | Aug 4, 2022 | news-en
Article 58 (2) of the Act of February 25, 1964 - Family and Guardianship Code (i.e. Journal of Laws of 2020, item 1359) - hereinafter referred to as they inhabit each other. The legislator then orders the court to rule in the divorce decree on the use of this flat for the time that the former spouses will still live in it. Zd. 2 of the quoted Art. on the other hand, it regulates the possibility of ordering eviction against one of the spouses, when this grossly reprehensible behavior makes it impossible to live together. A broad interpretation of the said provision is to be prevented by the term "in exceptional cases" used by the legislator, which determines the specific nature of the situation mentioned by the legislator.
Directive on the strict interpretation of Art. 58 § 2 sentence 2 k.r.o. seem to confirm the theses formulated by the jurisprudence of the Supreme Court (hereinafter - the Supreme Court) and common courts. In the judgment of 30 October 2019, reference number I ACa 1209/18 SA in Kraków, he clearly emphasized the need for a restrictive interpretation of the provision under analysis. It considered that such a necessity meant that this provision could be applied exceptionally, only when one of the spouses not only acts in a grossly reprehensible manner towards the other using the shared flat, but this behavior, deserving an unequivocally negative, objective assessment, strictly evokes specific effect. This effect is the complete exclusion of the possibility of the spouse using the apartment in accordance with its purpose. There must be an adequate causal link between the exclusion of this possibility on his side and the behavior of the potentially evicted person.
The interpretation of the statutory grounds for eviction, as confirmed by the Supreme Court, should be as specific as possible in relation to the existing facts. In the judgment of 25 January 2001, IV CKN 1511/00, the adjudicating panel on the basis of the case under consideration decided that the presence of the defendant at home was a source of constant tension, a threat to the peace and safety of the household members, without any detailed characteristics of his behavior justifying such an assessment, does not allow for the recognition of the subsumption made by the claimant as correct, because the application of Art. 58 § 2 sentence 2 k.r.o. requires the occurrence in the facts of only such proceedings of the defendant, which is explicitly provided for in this provision.
Moreover, the jurisprudence states that the request to evict one of the spouses after the divorce has been pronounced should not, in its effect, replace the decision concerning the division of marital property. Allowing such a possibility could also result in inconsistency in court decisions in various types of proceedings. It cannot be ruled out that in a case for the division of marital property, a flat would be assigned to, for example, a divorced spouse who would be obliged to leave it on the basis of an eviction order ordering it to be issued to a person who, at the same time, no longer has a legal title to use the flat as a result of the division of property. of the acquis communautaire (judgment of the Supreme Court of 27 October 2006, I CSK 190/06).
Normative analysis of Art. 58 § 2 sentence 2 k.r.o., conducted in the Commentary to the k.r.o. edited by K. Piasecki from 2002. Ed. 2, leads additionally to two important conclusions. First, the literature indicates the material-legal and procedural nature of the provision. A procedural one in the sense that it allows for the eviction of one of the spouses in a divorce decree. In the substantive legal context, the provision introduces an independent basis for eviction, although similar to that of Art. 685 of the Civil Code. and art. 13 of the Act of June 21, 2001 on the protection of the rights of tenants in the municipal housing stock and on the amendment to the Civil Code. This basis, however, is more rigorous compared to the prerequisites from the century century, because, as stated by the Supreme Court (thesis VI (1) of the guidelines of the Supreme Court of 1978), its application is limited to grossly reprehensible conduct. This grossly reprehensible conduct occurs especially when the constant abuse of alcohol by one of the spouses, causing fights and committing acts of violence constitute a threat to the life, health or peace of the other spouse and other family members (SN hereinafter). Secondly, the substantive meaning of the provision consists in the fact that it allows the spouse to be evicted regardless of the legal title the spouses have to live in. (ownership, cooperative right to premises ...). As indicated in the doctrine, the concept of a shared flat when it comes to ordering the said eviction does not include the flat belonging to the separate property of the spouse against which the eviction decision is directed, as well as the flat allocated to such a spouse solely in connection with the function performed by him.
The second most relevant at the end of the text of Art. 58 § 2 sentence 2 of the CC on the conclusion identified in the literature is an indication of the relationship between the indicated regulation and the institution of property rights under civil law. It should be remembered that Art. 58 par. 2 sentence 2 does not constitute grounds for depriving one of the spouses, who is the owner of the apartment, of the rights he is entitled to under Art. 140 and 222 of the Civil Code, i.e. provisions indicating that, within the limits set out by statutes and rules of social coexistence, the owner may, with the exception of other people, use things in accordance with the socio-economic purpose of his right, in particular, he may collect benefits and other income from things, and the fact that the owner may demand from the person who actually owns his thing that the thing be delivered to him, unless the person is entitled to the owner of an effective right to use the thing.
It is also interesting that if the divorce decree did not adjudicate the eviction - each of the divorced spouses may request the eviction of the other spouse only with reference to the grounds provided for in the Civil Code. and the act on the protection of the rights of tenants in the municipal housing stock and on the amendment of the civil code.
by Redaktor | Jul 4, 2022 | news-en
Pursuant to Art. 299 of the Code of Civil Procedure The court may admit evidence from hearing the parties only after the evidence has been exhausted or, in the absence of evidence, if there are still unexplained facts relevant to the resolution of the case. This is called the principle of subsidiarity of proof. However, in the matter of divorce or separation, there is a significant deviation from the above-mentioned rule. This means that then Art. 432 of the Code of Civil Procedure, and not Art. 299 known to ordinary civil proceedings. Art.432 of the Code of Civil Procedure stipulates that the court orders the taking of evidence by hearing the parties in any divorce or legal separation case. It clearly follows from the content of the above-mentioned provision that in divorce cases, evidence from the hearing of the parties is obligatory not only in the sense of admitting this evidence, but also its taking, which is confirmed by the thesis of the judgment of the Supreme Court of 5.03.1999. I CKN 1063/97. Moreover, appointed (in Article 432 of the Code of Civil Procedure), Art. 302 § 1 of the Code of Civil Procedure means that when, for reasons of factual or legal nature, only one party may be examined as to the disputable circumstances, the court will assess whether that party should be heard anyway, or whether this evidence should be omitted completely. The court will do the same if the other party or some of your fellow participants have failed to appear or refused to testify. The judgment of the Supreme Court of 5 March 1999. I CKN 1063/97 indicates that in the case law of the Supreme Court (see the judgment of June 20, 1952, C 1339/51, OSN 1953, No. 4, item 100) in a divorce case, the principle of hearing one party, and not resignation from evidence from the hearing of the parties, if there are factual or legal obstacles to the hearing of both parties or one of the parties did not appear for the hearing. The situation was also explained (see the judgment of the Supreme Court of July 21, 1958, 1 CR 337/57, OSPiKA 1959, No. 7-8, item 202) that if the party summoned to the hearing does not appear, the hearing may be omitted. only after the court has established the reasons for the failure to appear.
It is also worth paying attention to art. 442 of the Code of Civil Procedure in accordance with the content of which, if the defendant accepts the claim and the spouses do not have minor children in common, the court may limit the evidentiary proceedings to hearing the parties. It should be noted that if it is possible to hear only one party as to the disputable circumstances, the aforementioned Art. 442 does not exclude the regulation discussed above from Art. 302 § 1 of the Code of Civil Procedure The content of the provision of art. 442 of the Code of Civil Procedure it is only an option, and not an obligation, to limit the taking of evidence. At the same time, this provision does not establish an additional negative divorce premise, which would be a prohibition on declaring a divorce, if in a pending case for divorce between spouses who have minor children in common, no other evidence, apart from evidence from the hearing of the parties, is submitted, which is clearly emphasized in the justification of the judgment by the Court of Appeal. in Łódź on December 13, 1995 I ACr 557/95.
by Redaktor | Jun 2, 2022 | news-en
In the event of a conflict between the spouses, violence is sometimes involved
It is worth knowing that pursuant to Art. 11a of the Act of July 29, 2005 on Counteracting Domestic Violence (Journal of Laws of 2021, item 1249), if a family member living together makes living together particularly burdensome by their behavior involving the use of domestic violence, the affected person by this violence, he may demand that the court oblige him to leave the jointly occupied flat and its immediate surroundings, or to prohibit him from approaching the flat and its immediate surroundings.
A court order to leave the apartment can also be obtained if:
- 1) a person affected by domestic violence has left the jointly occupied apartment due to the use of violence against him in that apartment;
- 2) a family member using domestic violence has left the jointly occupied apartment;
- 3) a spouse, an ascendant, descendant, siblings, related in the same line or degree, a person in an adopted relationship and their spouse, as well as a cohabiting person and another person using domestic violence, periodically or irregularly staying in the apartment together with a person affected by domestic violence.
An adult who remains in the apartment for the time when a person using domestic violence does not live in it, in connection with an order to leave the apartment, is obliged to pay fees for the supply of electricity, gas, water to the apartment, as well as collection of sewage, waste and liquid waste. and the rent or the costs of day-to-day management of the property, unless the perpetrator of domestic violence is obliged to provide maintenance.
An application for obliging a person using domestic violence to leave the jointly occupied flat and its immediate surroundings or prohibit approaching the flat and its immediate surroundings may be submitted on an official form.
The court decides the case after a hearing. The court also delivers a copy of the application or other letters to the prosecutor and notifies him of the dates of the hearing. The court decides within one month from the date of filing the application.
The court in its decision indicates the area or distance from the jointly occupied flat, which the person using domestic violence is obliged to keep.
The provision on obliging the perpetrator of domestic violence to leave the jointly occupied apartment and its immediate surroundings or prohibit approaching the apartment and its immediate surroundings is effective and enforceable upon its announcement. The court may amend or revoke them in the event of a change in circumstances, even if it is final.
The deadline for submitting an application for a justification runs from the date of publication of the decision. If copies of the appeal are not attached to the appeal, the court prepares and serves a copy of the appeal. The deadline for submitting a response to the appeal is one week. The second instance court decides within one month from the presentation of the case file by the first instance court together with the appeal.
