Divorce and separation in Poland

Jurisprudence regarding guilt for the breakdown of life:

Judgment of the Supreme Court of May 8, 2003 (II CKN 78/01 LEX No. 80245)
Supreme Court judgment of 21 March 2003 (II CKN 1270/00, LEX No. 78843) The Supreme Court's Supreme Court of February 29, 2002 (V CKN 757/00, LEX No. 56021)

Judgment of the Supreme Court of May 8, 2003

(II CKN 78/01 LEX No. 80245)

1. In order to determine the existence of separation, it is irrelevant whether there is a complete and permanent breakdown of the marriage, which is the premise for the divorce (Article 56 of the penal code). It is also indifferent which of the spouses is guilty of separation. This circumstance may be taken into consideration when assessing the legitimacy of an action in the light of art. 5 of the PCC, there are no grounds to dismiss the action for the abolition of the matrimonial property for the sole reason that such a request is filed by the spouse who is guilty of separation.

2. The abolition of the matrimonial property commonwealth with a retrospective date may only take place if the valid reasons referred to in art. 52 k.r.o., i.e. actual separation, existed already on this earlier date.

Chairman: SSN Henryk Pietrzkowski.

Judges of the Supreme Court Teresa Bielska-Sobkowicz (rapporteur), Marian Kocon.

The Supreme Court in the case brought by Jan M. against Ewa M. for the abolition of the statutory marital property, after hearing at the hearing in the Civil Chamber on 8 May 2003 the cassation of the plaintiff against the verdict of the District Court in the court of September 27, 2000. , repeals the appealed judgment and remits the case to the Regional Court in the Court of Arbitration, leaving the Court with the decision on the costs of cassation proceedings.

By virtue of a judgment of February 1, 2000, the District Court in S. abolished on June 1, 1998 the statutory marital property of Jan M. and Ewa M., dismissing the claim in the part of the demand for the abolition of communality with an earlier date.

According to the findings, the parties concluded marriage on 30 August 1972. The spouses did not enter into any property agreements. Currently, divorce proceedings are under way, and for several years the parties have been holding separate households, occupying separate rooms in the same apartment. They both work, the plaintiff achieves three times higher income. In 1998, the plaintiff repaid a housing loan in the amount of PLN 25,000. On March 4, 1998, he bought a Opel Vectra car. He previously used the Opel Corsa car he sold. Apart from the flat, car and objects of the home appliance, the parties do not have any other property. Since the beginning of the marriage, the parties have owned a car and have been buying more over the years. Since 1997, the parties have been dealing separately with income tax, and previously filed a joint tax return. The parties remain in the actual separation. They have no debts. Apart from actual separation, there are no other reasons for the abolition of communality.

Separation is, in the Court's opinion, an important reason for the declaration of the abolition of the matrimonial property, as referred to in art. 52 § 1 k.r. and o. Consideration for the good of the family speaks against the abolition of communality on a date earlier than June 1, 1998. After this date, the parties no longer made any major purchases, did not make significant expenses, therefore abolishing the community with that date would not contradict the good of the family.

The District Court in S., by a judgment of 27 September 2000, dismissed the plaintiff's appeal against the above judgment. That court shared the finding that, until May 1998, the spouses had combined economic ties, and for that reason, considered appropriate the date of 1 June 1998 as the date for the abolition of the community. The abolition of the community with an earlier date (the plaintiff indicated the appeal on December 31, 1996) would undermine the interests of the defendant, depriving it of the share of the car purchased by the plaintiff in May 1998. The Regional Court pointed out that the defendant has a share in this property component because the purchase of the previous vehicle was used to purchase it.

The court of second instance ruled that the plaintiff had not provided credible evidence that emotional, physical and economic ties had ceased to exist between the parties as early as December 1997 and consequently considered the date of June 1, 1998 to be the day of the abolition of the marital property.

The verdict appealed against the reason for the cassation, based on both cassation grounds referred to in art. 3931 kp.c. In the first of these, he alleged a violation of substantive law by erroneously interpreting art. 52 § 1 k.r. and o., in the second - violation of art. 233 § 1 k.p.c. in terms of arrangements as to the time at which the parties are separated.

In conclusion, he requested that the judgment should be set aside and that the case be re-examined, or that the judgment should be changed, that the appeal should be taken into account and that the costs of the trial should be declared.

The Supreme Court weighed the following.

According to art. 52 k.r.o. the abolition of the statutory matrimonial marriage at the request of one of the spouses by virtue of a court judgment can only be for valid reasons. There is no doubt in the legal literature or judicature that the important reason may be the separation of spouses. In the eagleHowever, there were doubts as to whether the separation must take the form of a complete and permanent breakdown of marital life, which is the premise for the divorce (cf. Resolution of the Supreme Court of May 28, 1973, III CZP 26/73, OSNC of 1974, no. 4, item 65), or whether it is indifferent to determine the existence of separation whether there is a complete and permanent breakdown of life. The Supreme Court in its current composition shares the view expressed in the judgment of 13 May 1997 (III CKN 51/97, OSNC of 1997 No. 12, item 194), according to which the important reason for the court to abolish matrimonial property is separation actual spouses, preventing them from cooperating in the management of common property. Such a situation usually creates a threat to the property interests of one or even both spouses. In the claim for a claim referred to in art. 52 k.r.o. decisive are purely property issues and the possibility of spouses agreeing on matters related to the management of their property.

Therefore, contrary to the assessment expressed by both Courts, to determine the existence of a separation, it is irrelevant whether there is a complete and permanent decomposition of marital cohabitation, which is the premise for the divorce (Article 56 of the penal code). It is also indifferent which of the spouses is guilty of separation (see the judgments of the Supreme Court of 27 January 2000, III CKN 426/98 and of 12 September 2000, III CKN 373/99, not publ.). This circumstance may be taken into consideration when assessing the legitimacy of an action in the light of art. 5 k.c. however, there are no grounds for dismissing the claim for the abolition of matrimonial property for the sole reason that such a request is made by the spouse who is guilty of separation.

The abolition of the statutory matrimonial community may, pursuant to art. 52 § 2 k.r.o., take place on the day indicated in the judgment, which abolishes it. The rule is that the commonality ceases with the date of adjudication, whereas giving the judgment a retroactive effect should take place exceptionally, after considering both the interests of the family and both spouses and the interests of the creditors of each of them (see SN judgments of February 3, 1995, II) CRN 162/94, OSNC No. 6, item 100 and dated January 17, 1997, II CKU 31/96, Proc. And Law No. 6, item 29). The abolition of the matrimonial property commonwealth with a retrospective date may only take place if the valid reasons referred to in art. 52 k.r.o., i.e. actual separation, existed already on this earlier date.

According to the findings, the factual separation of spouses has existed since 1 June 1998. At the same time, however, the Court of Second Instance assumed that the abolition of matrimonial property with the date prior to 1 June 1998 would harm the interests of the defendant and would be contrary to the good of the family, therefore, it is justified to dismiss the action in so far as it was intended to designate an earlier date. Although this is not directly apparent from the grounds of the judgment under appeal, the basis for partial dismissal of the claim was the provision of art. 5 k.c.

In connection with such a resolution, two issues should be noted. First, if it was established that the de facto separation existed from 1 June 1998, there was no need at all to consider whether the inclusion of the claim in its entirety, and therefore also the demand for the earlier date than 1 June 1998, family and second spouse. If the separation only exists from the date specified in the judgment, then there were no valid reasons, referred to in art. 52 k.r.o., and therefore there were no grounds for abolishing the commonality. Secondly, it should be noted that the issue of the good of the family, or the second spouse, can be taken into account as a prerequisite for the abolition of communality in the circumstances of the case. Consideration for the welfare of the family or the other spouse may constitute - pursuant to art. 5 k.c. - the ground for dismissing the claim in its entirety or the demand to mark the date earlier than the date of adjudication. On the other hand, it can not prejudge what an earlier date the community should abolish. It is therefore appropriate to consider the allegations of violation of Article 5 k.c. in connection with art. 52 k.r.o. through their misinterpretation.

Notwithstanding the foregoing, the allegations raised under the second cassation basis should be considered well founded. The determination that the factual separation of the parties has existed since 1 June 1998 has been made only on the basis of the defendant's testimony and does not take into account all the evidence gathered in the case, which constitutes a violation of Article. 233 § 1 k.p.c., as the applicant aptly accuses. In particular, it was not taken into account the fact that from 1997 the parties separately settled the income tax, while previously they were jointly settling. Not explained about the reasons for this state of affairs. It is doubtful that the defendant's testimony regarding the date of the separation would arise in a situation where the defendant herself differently specified the claim in her claim for the plaintiff's commitment to contribute to the needs of the family. NI can not agree with the assessment that the submission of various statements for the use of various court proceedings is justified. Therefore, it is necessary to agree with the applicant when he alleges that it has not been clarified in the case which factual circumstances led to the recognition that the spouses had jointly managed the estate until May 1998, and that it was impossible to do so from the following month.

The shortcomings identified with regard to factual settlements result in the necessity to set aside the appealed judgment and refer the case back for re-examination.

In view of the above, it was adjudicated as in the operative part of Article 39313 k.p.c., and in the scope of the ruling on costs of proceedings - pursuant to art. 39319 k.p.c. in connection with art. 108 § 2 k.p.c.

Judgment of the Supreme Court of March 21, 2003

(II CKN 1270/00, LEX No. 78843)

1. For arrangements pursuant to art. 57 § 1 k.r.o., which of the spouses is to blame for the breakdown of marriage, what is important is the behavior of the spouses, which took place before its application, only they, pursuant to art. 361 § 1 k.c., can be considered as the cause of the decay and assessed as a culpable cause of decay of life.

2. The behavior of the spouses in the period when the distribution of their marital life was already complete and lasting, however, they are not without significance for the assessment of divorce conditions set out in Art. 56 k.r.o. Spouses are obliged to mutual loyalty and decent behavior towards each other throughout the duration of the marriage. If their inappropriate behavior has caused the breakdown of the life, they have the consequences in the form of the possibility of attributing to them the guilt of decay with all the consequences that the law provides. However, if their inappropriate behavior took place after the creation and consolidation of the breakdown of life and can not be considered as its cause, they should be assessed from the point of view of the premise of the principles of social coexistence, as provided in art. 56 § 2 and 3 k.r.o. for the purpose of assessing the compliance of a divorce decree with these principles and for assessing compliance with them, refusing consent to the divorce of a spouse who can not be held guilty.

Chairman: SSN Irena Gromska-Szuster (rapporteur).

Judges of the Supreme Court: Marian Kocon, Hubert Wrzeszcz.

The Supreme Court in the case brought by Leszek D. against Danuć D. for divorce, after being examined in the Civil Chamber on 21 March 2003 at the hearing of the defendant's appeal against the verdict of the Appeal Court in P. of 12 April 2000, quashed the judgment under appeal and refer the case to the Court of Appeal in P. for reconsideration and resolution of the costs of cassation proceedings.

The plaintiff requested a divorce without adjudging on guilt, and then demanded a divorce from the guilt of his wife.

The defendant did not consent to the divorce, claiming that although the plaintiff was guilty of marital infidelity, and she did not blame the break of her husband, she forgave her husband for betrayal, still feels affection, wants to maintain her marriage and therefore does not agree to divorce.

By a judgment of 16 September 1999, the District Court in P. dismissed the claim.

That court established that the parties had married on February 2, 1972 and that they now have two sons of age who are now siblings. During the marriage, the plaintiff took and graduated from technical secondary school, and then graduated in 1982 from polytechnic. Since 1984, the parties have been building a house on the acquired land, but the construction was mainly due to the reason that he also worked professionally on several jobs, and the defendant spent the entire period of marriage dealing with home and children and worked until 1995.

Until the summer of 1993, the marital life of the parties was very good. In the summer of this year, the plaintiff was spending more and more time on the construction site, he came home rarely and in the absence of his wife, who noticed that her husband was moving away from her, refusing physical intercourse, refusing to talk. The defendant began to claim that the plaintiff was involved with Hanna J. When she wanted to talk to her husband about it, he avoided talking. The plaintiff did not spend Christmas Eve, Christmas or New Year's Eve with his family in December 1993, which confirmed the defendant's conviction about his husband's affair. Together with her sons, she began to search for information about his whereabouts and the sons found that the father was often in the home of Hanna J. Pursuing the marriage, the defendant in May 1994 moved with her children to the house being built, which, however, did not rebuild the life and reason for In August 1994 he filed for divorce, and in May 1995 he moved out of the house. During the cohabitation of the parties since May 1994, conflicts have arisen between them, which found an epilogue in the prosecutor's office, the police and in court. The defendant also attacked Hanna J. In 1997, the plaintiff re-entered the common house and the parties remain in an open conflict.

Based on the above findings, the Regional Court stated that despite the long-term separation and relationship of the plaintiff with another woman, it can not be said that there was a permanent and complete disintegration of the parties' marital cohabitation, since the defendant declared her desire to be reconciled with her husband all the time. At the same time, this Court will statethat even if we assume that there was a permanent and complete breakdown of marriage between the parties, the divorce would not be possible, because the reason for leaving his wife and joining another woman is solely guilty of decay. The defendant did not fault the schedule, she was a good wife who cared for her family, she fulfilled her duties in a size exceeding customs, and her reprehensible behavior indicated by the material collected in penal cases took place after the plaintiff had broken down his marriage and was a reaction to revealing the romance husband and abandonment of his family. The court also found that the plaintiff had not shown that the refusal of the defendant to consent to divorce was contrary to the principles of social coexistence and, for all these reasons, dismissed the claim based on art. 56 § 3 k.r.o.

As a result of the plaintiff's appeal, the Appeal Court in P., accepting the Court of First Instance's own factual findings as the own findings, changed the appealed judgment and dissolved the parties' marriage by divorce by fault of both spouses.

The court of second instance ruled that between the parties there was a permanent and complete breakdown of the married life started in August 1993 by the end of 1993 and there are no grounds to consider that this distribution did not have the features of durability.

The Court of Appeal also did not share the position of the Court of first instance that the sole fault for the breakdown of the stay was borne by the plaintiff. He stated that spouses were obliged to mutual loyalty throughout the entire duration of the marriage, and therefore, even when the breakdown of the marriage had already taken place, none of the spouses could behave in a way that this distribution could deepen. In the opinion of the Court of Appeal, the defendant's conduct in criminal cases, and in particular in the settlements contained therein, although only from May 1994, undoubtedly contributed to the deepening of the existing distribution of marital cohabitation of the parties and should be considered culpable in the sense art. 57 § 1 k.r.o., because even if it was a reaction to the wrong behavior of the plaintiff, it exceeded the acceptable limits of such a reaction. The court also found that there were no grounds to assume that there was a contradiction in the divorce ruling with the rules of social coexistence and therefore, by changing the sentence, he adjudicated divorce on the part of both parties.

In cassation from the above judgment, based on the first cassation basis referred to in art. 3931 of the penal code, the defendant alleged violation of art. 56 § 2 and 3 and art. 57 k.r.o. through their erroneous interpretation and groundless acceptance that her behavior contributed to the deepening of the breakdown of the marital life of the parties, as well as the recognition that the decree of divorce does not violate the principles of social coexistence.

Based on the above, it requested that the judgment under appeal should be set aside and that the case be remanded, taking into account the costs of cassation proceedings as part of the costs of the proceedings.

The Supreme Court weighed the following:

Objections to cassation can not be denied.

According to art. 56 § 3 k.r.o. the divorce is not admissible if it is claimed by the spouse solely due to the breakdown of the marriage, and the guilt is assessed in accordance with the principles of art. 57 k.r.o., according to which the court determines which of the spouses is guilty of the breakdown of the stay. Therefore, it is a matter of guilt for causing and consolidating the decomposition of marital life, and thus for determining the behaviors that led to the creation and consolidation of the distribution, and thus, occurred before the creation and consolidation of the distribution, and not after that. Undoubtedly, the Court of Appeal is right to point out that also the spouse's behavior, which perpetuates the already existing distribution, is important from the point of view of art. 57 § 1 k.r.o., however, this observation can not be related to the behavior of spouses, which took place after the creation and consolidation of the breakdown of life. These behaviors do not affect the distribution, since it is already complete and permanent, and therefore the existence of a causal relationship (Article 361 § 1 of the penal code) between them and the decomposition of marital life can not be assumed. Therefore, these are not behaviors which in the light of the principles of art. 57 § 1 in connection with art. 56 § 3 k.r.o. could justify the attribution of guilt for the breakdown of the spouse's life.

Since the Court of Appeal determined that the breakdown of the parties' marital cohabitation, initiated by the plaintiff in August 1993, took place at the end of 1993, in the light of the provisions of art. 56 § 1 k.r.o. it should be assumed that at this time the distribution was complete and lasting. For establishing in accordance with art. 57 § 1 of the penal code, which of the spouses is at fault of this distribution, the spouses' behavior, which took place before December 1993, is important, because only in accordance with art. 361 § 1 k.c., can be considered as the cause of the decay and assessed as a culpable cause of decay of life. From this point of view, the behavior of the defendant, which results from the findings in criminal matters, which concern only the period from May 1994, can not be treated as the cause of the breakdown of the parties' lives and recognized as the culpable contribution of the defendant todistribution. They are behaviors that at most could be the result of the breakdown of life, not its cause, since the complete and permanent decomposition occurred at the end of 1993.

The behavior of the spouses in the period when the distribution of their marital life was complete and lasting, however, are not irrelevant to the assessment of the divorce conditions set out in Art. 56 k.r.o. As the Appellate Court rightly stated, spouses are obliged to mutual loyalty and decent behavior towards each other throughout the duration of the marriage. If their inappropriate behavior has caused the breakdown of the life, they have the consequences in the form of the possibility of attributing to them the guilt of decay with all the consequences that the law provides. However, if their inappropriate behavior took place after the creation and consolidation of the breakdown of life and can not be considered as its cause, they should be assessed from the point of view of the premise of the principles of social coexistence, as provided in art. 56 § 2 and 3 k.r.o. for the purpose of assessing the compliance of a divorce decree with these principles and for assessing compliance with them, refusing consent to the divorce of a spouse who can not be held guilty. If, therefore, a spouse who does not consent to divorce and whom, in accordance with the above interpretation of art. 57 § 1 in conjunction from art. 56 § 1 kro, can not be attributed to the fault of the decay of life, after the occurrence of decomposition behaves in a wrong and reprehensible manner, it should be considered whether in these circumstances his refusal to consent to divorce should not be assessed as contrary to the rules of intercourse social policy within the meaning of 56 § 3 k.r.o.

Due to the fact that the Court of Appeal, deciding on the guilt of the defendant of the parties' marital disintegration, misinterpreted art. 57 § 1 in conjunction from art. 56 § 1 and 3 years of the year, it is reasonable to consider the cassation complaint of violation of the above provisions.

As the imposition of the defendant on the basis of the facts resulting from the files of criminal cases was not determined by the Court of Appeal and did not indicate what behavior the defendant has in mind, it is impossible to assess this behavior from the point of view of the premises of art. 56 § 3 k.r.o. in fine, which makes it impossible to issue a reforming verdict. For these reasons, the Supreme Court pursuant to art. 39313 k.p.c. and art. 108 § 2 in conj. from art. 39319 k.p.c. overturned the judgment under appeal and remitted the case to the Court of Appeal for reconsideration and resolution of the costs of cassation proceedings.

Judgment of the Supreme Court of February 29, 2002

(V CKN 757/00, LEX No. 56021)

1. According to the former art. 389 kp.c. (now Article 386 § 6 of the Code of Civil Procedure) the principle of binding the court examining the case with certain elements of the verdict judgment (now appellate) could be binding only this legal assessment and those and only those indications as to further proceedings contained in the annulling ruling of the appellate court, and in its justification, whose logical consequence was to set aside the decision of the court of first instance to hand over the case for re-examination or to declare a charge unjustified. The new decision of the court of first instance re-examining the case must always be an expression of judgment and decision of the court, whose embarrassment with the ruling of the higher court is only aimed at preventing the repetition of circumstances causing the defect of the revoked ruling.

2. It can not be considered that the spouse's conduct contributed to the permanent breakdown of the marriage before the conclusion that such (permanent) distribution takes place.

Chairman: SSN Marian Kocon (rapporteur).

Judges of the Supreme Court: Barbara Myszka, Mirosława Wysocka.

The Provincial Court in K., after re-examining the case, by a judgment of 23 April 1997, among others he dissolved the parties by divorce, considering the plaintiff guilty of the dissolution of his marriage, entrusted the mother with parental authority over their joint daughter and obliged the plaintiff to bear the costs of her maintenance and upkeep, accounting for 50% of his remuneration for work, not less than PLN 300 monthly. This decision was based, inter alia, on the finding that the plaintiff in the period of life of the parties established a "closer contact" with the sister-in-law of the defendant and left his wife (home) one month before the birth of their child.

In appealing against the above verdict, the plaintiff demanded his change by divorce decree for fault of both parties and a reduction in alimony. The plaintiff argued with the findings of the Provincial Court regarding the causes of the parties' marital disintegration, made their own findings and drew their own conclusions from them.

The Court of Appeal, in a judgment of 19 November 1998, in the plaintiff's appeal, changed the appealed judgment by decreeing divorce for both parties, and in the scope of alimony, reduced the fraction from earnings to 30%, stating that their amount can not be less than PLN 500 . For the Court of First Instance stated, inter alia, that the Court of Appeal, when examining the case for the first time in a binding manner, determined the defendant's cohabitation in the distribution of marital cohabitation of the parties. He divided tthe plaintiff's view of overstating a fraction of the remuneration for the work that determines his maintenance obligation.

In cassation against this judgment, the defendant accused him of violating the provisions of the proceedings (Article 3931 point 2 of the penal code), and in particular art. 233 § 1 and 328 § 2, 386 § 6, 328 § 2 k.p.c. On that basis, the defendant requested that the judgment under appeal should be set aside and that the case be remanded.

The Supreme Court weighed the following:

The applicant legitimately challenges the view of the Court of Appeal that her complicity in the party's marital disability was accepted by the previous judgment of the Court of First Instance and linked the courts to further proceedings.

According to the former art. 389 kp.c. (now Article 386 § 6 of the Code of Civil Procedure) the principle of binding the court examining the case with certain elements of the verdict judgment (now appellate) could be binding only this legal assessment and those and only those indications as to further proceedings contained in the annulling ruling of the appellate court, and in its justification, whose logical consequence was to set aside the decision of the court of first instance to hand over the case for re-examination or to declare a charge unjustified. The new decision of the court of first instance re-examining the case must always be an expression of judgment and decision of the court, whose embarrassment with the ruling of the higher court is only aimed at preventing the repetition of circumstances causing the defect of the revoked ruling.

The Court of Appeal failed to indicate the elements of justification of the decision of the then review court (Court of Appeal) binding the Court of first instance in re-examining the case. It is not apparent from the wording of that justification that the Court of Appeal, responding to the applicant's review claims, found that the Court of First Instance's determination of the reasons for the parties' disintegration is not reliable and that they give rise to the fault of the applicant in causing permanent breakdown of the marriage. The reasoning of this Court also does not explain which legal provision for a fixed or hypothetical subsumption (which, moreover, does not cite) the factual situation is applicable and does not specify the result of this subsumption.

In addition, the questionable Court of Appeals finding that there was, and needs to be emphasized, the permanent decomposition of marital life practically excluded the possibility of correctly determining which act or omission of a spouse who violated the obligations resulting from applicable law or the rules of social co-existence (co-cause) of such (permanent) decomposition, and ultimately led to divorce. It can not be said that the spouse's conduct contributed to the permanent breakdown of marriage before determining that such (permanent) distribution takes place.

As regards the resolution on maintenance for the daughter of the parties, the applicant is aptly accused that the Court of Appeal, without noticing that their daughter is, in general, a sick child, unjustifiably decided to lower the fraction of remuneration for work received by the Provincial Court by the plaintiff. Only penetration into this circumstance would enable proper determination of the scope of the parties' daughter's needs, determine, taking into account the plaintiff's payment options, the amount of the maintenance allowance, and then express it, as was the case, in the form of that fraction.

For these reasons, it was adjudicated, as in the judgment (Article 39313 of the penal code).