Material legal grounds for divorce

According to the Polish legal order, a divorce decision is only possible if the conditions for permanent and complete distribution of life are met. It should be stressed that these conditions must be met cumulatively and in the absence of one of them, a court can't solve a marriage by divorce.

In addition, the court may not rule on divorce in cases where the welfare of the spouses' children, together, is likely to suffer, or where, for other reasons, the decision to divorce would be contrary to the principles of social intercourse, and where the divorce is requested by the spouse who is solely responsible for the distribution of life, unless second the spouse agrees to divorce or refuses his consent is contrary to those principles under the circumstances.

The author presents the position of the Supreme Court and the appeals courts in this issue.

1. Reasons for a divorce

Article 56 Act on 25 February 1964 - Family and caring code 1 provides that:

section 1. If there is a complete and permanent distribution of life between the spouses, each of the spouses may demand that the court dissolve the marriage by divorce;

section 2. However, despite the complete and lasting distribution of life, divorce is not admissible if the welfare of the spouses' joint minors is to be affected or if, for other reasons, the decision to divorce would be contrary to the principles of social coexistence;

section 3. A divorce is also not admissible if the spouse is solely guilty of the distribution of life, unless second the spouse agrees to the divorce or that the refusal of his consent to divorce is contrary to the principles of social intercourse under the circumstances in question.

1.1. Positive message

The only positive reason for a divorce by a court is the permanent and complete distribution of life between spouses, which is determined under Article 56(1) k.r.o. This is a test condition First, by court, primarily because “the permanence of marriage and the equality of spouses is one from the basic principles of Polish family law.

The possibility of disbanding a marriage due to a unilateral statement made by the husband, without taking into account the position second of spouses opposes the principle of durability of marriage and equality of spouses’ 2 .

In addition, the basic guidelines indicated by the Supreme Court for the ruling of divorce include:

• • the principle of the sustainability of marriage and the protection of the family, taking into account, however, the admissibility of divorce as a measure necessary to eliminate socially harmful, dead, formally only existing marriages; and
• • the principle that obligations arising from marriage and family relations should not limit personal life to a greater extent than the welfare of the family requires[3].

To confirm the above, it should be pointed out that the family code emphasizes that married couples have equal rights and obligations. In addition, they are required to share life, to help each other and to be faithful and to cooperate for the benefit of the family they have established through their relationship[4].

Persistence and completeness of the distribution of life mean that “all the bonds of marriage have ceased, complete, if these bonds have ceased long enough, that according to the principles of life experience, the return of spouses to life together will not occur” 5 .

Supreme Court in judgment of 22 October 1999 stressed that joint consumption in terms of Article 23 k.r.o. consists of a spiritual, physical, and economic bond of spouses, which constitute the purpose of marriage and enable the fulfilment of its basic tasks.

The distribution of life is complete only when all the marriage bonds indicated have been broken. This distribution is a process stretched over time, not a one-time event.[6].

If at least between the parties is preserved one from a bond (spiritual, physical or economic) it cannot be argued that there was a positive reason for the divorce ruling. In that case, the court should dismiss the action. According to the Supreme Court ruling of 20 May 1952, reference no. C 1146/51, J. Gudowski, Family and Care Code.

Case law, Kraków 1998, p.

191: „For the existence of a distribution, it is important to break up sex rather than a matter of common or separate residence." In addition, the Supreme Court states that: ‘The occasional, time-old physical relations between spouses who have not made any changes in their marital life either to their husband or to their concubine, do not demonstrate the absence of decay’ (judgment of the Supreme Court of 12 September 1960, 3 CR 832/59, J.

Gudowski, Codex... op. cit. p. 200). A positive divorce is a complete and lasting distribution of life. In the case of occasional physical relations between spouses, it is difficult to speak of fulfilling this condition. Furthermore, any doubts should be resolved “for the benefit of marriage” (in favor of matrimony)[7].

Thus, in the course of the divorce proceedings, the court always asks the parties whether all the bonds that form the foundation of the marriage have ceased between them.

In addition, the court has a duty to provide a comprehensive explanation of the causes of the marital breakdown, or to examine the circumstances that led to it. The determination of these circumstances is primarily necessary in order to assess the nature and extent of the distribution of married life, mainly from the point of view of its durability, which, according to Article 56(1) k.r.o. necessary condition for the admissibility of divorce[8].

The case law of the Supreme Court regarding the durability and completeness of the distribution of life is established and unambiguous: “The persistence of decay and its completeness are the positive reasons for divorce. Lack of complete decomposition means that it cannot be qualified as permanent’ 9 .

It should be stressed that the distribution of life must take place after marriage. However, it is possible that the reason for this breakdown may have occurred before marriage, and that the spouse only learned about it after marriage.

In the event that the court finds, after carrying out an evidentiary procedure, that there has been a complete but non-permanent distribution of life between the spouses, it may only determine separation.

The separation ruling has the same effect as the divorce ruling, but the spouses cannot enter into a new marriage and the spouse who has changed his name as a result of the marriage cannot return to the name he had before the marriage.

This clearly shows how important it is in the course of the divorce proceedings to show that all the ties between the spouses are complete and lasting.

A very important issue, which is relevant in the course of divorce proceedings for spouses, is the relationship with another partner. Therefore, in this regard, the Supreme Court stated in its ruling and explicitly stated that: “The union one the spouses with another partner during the course of the marriage, but after a complete and permanent distribution of life between the spouses, does not give rise to the attribution of this spouse's guilt for that distribution." 10 .

The above in the course of the proceedings is very difficult to prove, in particular, that the most common cause of permanent and complete distribution of life is marital betrayal.

2. Negative grounds

1. 1. Inadmissibility of divorce in situations where the welfare of a minor child or the decision to divorce would be contrary to the principles of social coexistence

The determination of negative conditions should be preceded by the determination of the above-mentioned positive condition. first a negative indication mentioned by the legislator is the common welfare of minors. In keeping with the child's welfare in the judgment of divorce, the court should take into account the criteria developed by the Supreme Court, which include:

1. Verification by the court of the circumstances or decisions of the divorce will not result in a weakening of the relationship with the children of the spouse with whom the children will not remain, to the extent likely to adversely affect the performance of his parental duties;
2. Verification by the court in the case of multi-child families where the obligation to maintain and raise joint minors is fully exhaustive the income and property opportunities of both spouses, whether, given the welfare of the children, the situation indicated may be against the decision to divorce and thus give their parents the opportunity to start a new family;
3. An assessment of the existing facts by the court and an examination of whether the judgment of the divorce allows the situation of children to be resolved in such a way as to ensure that their material and moral needs are met at least to the extent that these needs are currently met, without any prejudice;
4. The examination by the court of whether the existing state of tension between the spouses affects children’s living conditions so adversely that, for the sake of their welfare, they could not justify the refusal of divorce. The additional criteria to be taken into account by the court are: the age of the children, their previous relationship with the parents, as well as the health and sensitivity of the children[11].

These principles are reflected in the current rulings of the Supreme Court, where the criterion of the child's welfare is defined as follows: "The welfare of the child, as a condition for the divorce ruling, needs to be taken into account, in addition to predestination to exercise parental power, also the previous personal participation of the parent in the educational process" 12 .

It should be stressed that the condition specified under Article 56(2) k.r.o. is intended primarily to protect the child from the negative effects of the divorce of the parents, not to protect the child from the effects that will occur in connection with the divorce ruling.

That is why the Court of Appeal in Rzeszów rightly acknowledged that in order to establish this negative condition, which is the common interest of minors, it is necessary to verify in the course of the judicial proceedings the impact of the distribution of marital life on the person of the child, the conditions under which the granting of a divorce may have more adverse effects on the child than those which are the result of a complete and permanent distribution of life between the spouses - the parents of the child[13].

In addition, it is essentially the child’s interest to be raised in a family where parental functions are properly carried out, including that they are not separated from either the mother or the father, but it is important that it is a family that is actually functioning and not only formally maintained by law.[14].

The court, which will assess the existence of a negative premise, which is the contradiction of a divorce ruling with the welfare of minors, is obliged to examine the situation of children before and after the divorce ruling and to ensure that the distribution of marital life between spouses is permanent and complete.

second for negative reasons it is a contradiction of divorce with the principles of social intercourse and must be treated exceptionally.

It should be pointed out that the court should take it into account when deciding divorce only if there are special circumstances in favour, even when marriage is characterised by a complete and permanent breakdown of life and there are no other negative reasons.

As the Supreme Court rightly points out: “These circumstances may, in particular, be taken into account when such rules cannot be reconciled with the gross harm that a spouse who opposes the request for divorce, or when there are serious socio-educational considerations against divorce, which do not allow the decision of divorce to sanction the factual situation arising from ill-treatment and malicious attitude towards a spouse or children or other manifestations of disregard for the institution of marriage and family or family obligations” 15 .

The circumstances justifying the decision to divorce on grounds of conflict with the principles of social intercourse are not the case where the opposing spouse is solely responsible for the distribution of life, or where, in common guilt, there is no reason to assume that the guilt of the spouse who requests the divorce is much heavier. Dismissing a divorce application due to the application of the principle of social coexistence should only be ruled out if the decision of divorce would undoubtedly have injured the spouse.

This must be considered "in the light of the principles of humanitarianism, taking due account of the duration of the marriage, the distribution of its burdens, the situation of both spouses, and in particular their age, health status, the ability to meet personal needs and other circumstances which may characterise the material and moral living conditions of both spouses" 16 .

Therefore, the ruling of divorce according to the Supreme Court’s position may prove to be contrary to the principles of social coexistence, for example, ‘when one the spouses are terminally ill, they need help, and divorce is a gross harm to them.

At times, socio-educational considerations may appeal against the granting of a divorce, which do not allow a divorce ruling to sanction the facts arising from a malicious relationship with a spouse or from other manifestations of disregard for marriage and family" 17 .

It should be stressed that an incurable person is a person who needs constant care of a spouse, for example in medical, spiritual and material care. Such a disease is not a condition to which it has its own effect one of spouses, such as drug addiction.

According to the Supreme Court's position: "The consequences of his irresponsible conduct must be borne by the defendant, he cannot place them on his or her spouse, he cannot therefore challenge and deprive the spouse of his or her right to another arrangement of life's fate." 18 .

There are differences in the case law as to the possibility of a divorce due to mental illness one married. The Supreme Court takes the view that: “The mental illness one the spouses do not prejudge the content of the divorce judgment.

Content Article 9(1) Code., which provides for the possibility of marriage by a person affected by a mental illness or mental maldevelopment, if the state of her health does not conflict with the essence and objectives of marriage, it cannot be considered that any mental disorder or even mental illness arising during the course of marriage constitutes an important within the meaning of Article 29 Code.

The root cause of the distribution of married life. This can be due to a disease contrary to the nature and objectives of marriage.” 19 .

Moreover, the obligation provided for under Article 23 k.r.o. 20 may be excluded if the conduct resulting from a mental illness of the spouse justifies exemption from that obligation second of spouses[21].

The opposite view of the possibility of a divorce in the case of a spouse’s mental illness was expressed by the Bialystok Court of Appeal: “The illness of the spouse not only does not cause and should not cause a permanent distribution of marital life, but imposes on the other spouse the obligation to use all means to restore the sick spouse's health and ability to fulfil her marital obligations.

Against these principles, conduct is contrary to generally accepted principles of morality” 22 .

Therefore, in the event of a divorce application due to a spouse's mental illness, the case will be dealt with individually and in the context of a particular situation. It is important that it should always be demonstrated in the course of the proceedings that there is a relationship between an existing mental illness and a permanent and complete distribution of life among spouses, and there are no other negative reasons.

1. 2. Inadmissibility of divorce in a situation where the spouse demands it solely because of the distribution of life

According to Article 56(3) k.r.o. divorce shall not be admissible if the spouse requests it solely because of the distribution of life, unless second the spouses agree or refuse to divorce is contrary to the principles of social intercourse in the circumstances in question. It is therefore crucial in divorce proceedings to determine which of the spouses is to blame for the breakup of marriage.

Consent second The divorceee does not give rise to any doubt, but where refusal to consent is due to revenge or hatred of the spouse, such refusal will be deemed by the court to be contrary to the principles of social intercourse. At this point, it should be pointed out that “the consent to divorce must be clear.

The court shall not be entitled to extract from the given motives the spouse refused to consent. In order to judge the divorce from the sole fault of the plaintiff, it is necessary to allow the defendant's spouse to divorce, which indicates his willingness to obtain the divorce.

If the defendant agrees only to avoid unpleasant insistence (not to mention the pressures combined with the threat) second the spouse, or if he does not expect the spouse to return to life due to unjustified obstacles to his family, such consent cannot be regarded as a manifestation of the will to obtain a divorce and therefore cannot result in the effects envisaged under Article 30(1) code.

genera.’ 23 .

It is important that it does not have to be a negative view of this spouse who refuses to accept a divorce because, in many cases, an innocent spouse feels hurt and cannot accept the situation. In such a case, the lack of his consent cannot be judged morally inappropriate. Thus, when deciding divorce, the court takes into account objective criteria (divorce is legitimate from the point of view of the general public) rather than the subjective feelings of the person concerned.

Otherwise, seeking a divorce would always result in dismissing the action, regardless of any other circumstances. It would lead to the existence of “dead” marriages in society without a chance of resuming marriage.

Therefore, ‘The effect of refusing to consent to divorce in the light of the principles of social intercourse should not only be assessed on the basis of comprehensive explanation and consideration of the circumstances concerning the innocent spouse, but also on the situation of the children of the marriage and the children of the divorced spouse, taking into account their living conditions, as well as the situation of the married couple’ 24 .

Furthermore, “The assessment of whether or not to object to a divorce ruling is not an abuse of the right to consent to a divorce should be based on, in addition to the reasons for the distribution of life, including the circumstances relating to the situation and living conditions resulting from the distribution of life, both of the innocent spouse and of the applicant for the dissolution of a marriage that is guilty. It is only in their context that it will be possible to state whether it is possible to maintain only a formally existing marriage, in the absence of a chance of reactivation of life between spouses, that it does not violate the generally accepted principles of right conduct, derived from the principles of public morality and whether it does not harm interests which deserve protection from their point of view." 25 .

Another important issue is the refusal to consent to divorce despite the fact that the child is born from an informal marriage of the spouse solely guilty. The Supreme Court stated: “The existence of a new factual relationship cannot be attributed to the meaning of the condition of positive or negative application Article 56(3) dd.

last k.r.o. Judgment of divorce at the request of the spouse solely guilty, without consent second the spouse may only be exceptionally in accordance with the social interest’.

In addition, he was solely guilty of saying: “For the sake of the child’s welfare, the refusal of the defendant’s consent to divorce should be assessed as contrary to the principles of social intercourse, he should have demonstrated how positively the situation of the child’s life after the marriage to the current concubine would have changed.

He did not show this, and his claim that he wanted to “legalise” the relationship with the concubine seems to indicate that he treats the marriage as “formality”, whereas it is a serious legal institution with numerous consequences in the lives of the spouses themselves and in their relations with society.” 26 .

Such conduct of the guilty spouse demanding divorce does not deserve approval, and may result in the dismissal of the action.

In the event of a decision to divorce a spouse solely guilty, in the absence of the consent of an innocent spouse, the court has a duty to justify its position and establish the circumstances which have led the court to find that the court has refused to consent to a divorce contrary to the principles of social coexistence and that the spouse must only prove that the refusal to divorce is contrary to the principles of social coexistence.

3. Summary

A divorce ruling in accordance with applicable law can be made in the event of a complete and lasting distribution of life. This is a prerequisite for a divorce and the conditions must be met together.

In addition to the stated positive condition, a court may terminate the marriage by divorce, where this does not endanger the welfare of minors, if the spouse is not solely guilty and is not contrary to the principles of social intercourse.

In each case, the court is required to carry out evidence demonstrating whether the decision of divorce in the circumstances of a particular case is justified, in particular given the consequences of the judgment.

The court shall always take into account the principle of the durability of marriage and the protection of the family, taking into account, however, the admissibility of divorce as a measure necessary to eliminate socially harmful, dead, formally only existing marriages.

____________________________________