GROUNDS FOR DIVORCE AND MAINTENANCE BETWEEN FORMER SPOUSES IN POLAND (EXCERPTS)
This
title, in its turn, is divided into five parts (sections) which
regulate the following: I) entering into a marriage II) the rights and
duties of the spouses III) matrimonial property relations IV) the
termination of a marriage V) separation (this was introduced in 1999).
Section IV of title I encompasses Articles 55-61. Article 55 regulates
the termination of a marriage resulting from a declaration of the death
of one of the spouses, Article 56 the prerequisites for divorce,
Articles 57-58 - the contents of a judgment dissolving a marriage,
Article 59 the impact of divorce on the name of the ex-spouse (if it
was previously changed as a consequence of entering into the marriage)
Articles 60-61 the duty of maintenance between the former spouses. In
1975 §§ 2-4 were added to Article 58 and, at the same time, the content
of Article 59 was amended. The Polish Family and Guardianship Code may
be seen as a distinct and separate book within the Polish Civil Code of
April 23, 1964, which came into force on January 1, 1965. The existence
of the two separate codes does not justify the opinion that family law
is a branch of the law which is different from civil law. The existence of the prerequisites for divorce will be examined by the court ex officio (of its own motion). Divorce proceedings are initiated by lodging a petition for divorce
(dissolution of the marriage) by one of the spouses (Article 56 § 1
Polish Family and Guardianship Code), which is also characteristic of
any litigious proceedings according to the Polish Code of Procedure
(Article 187 § 1 Polish Code of Civil Procedure). It is not possible
for divorce proceedings to be initiated either by the public prosecutor
(who is able to initiate any other proceedings of his own motion in
civil cases, including family law cases in general (other than
divorce), Article 7 sentence 2 Polish Code of Civil Procedure), or any
other person. A statement of counter claim is inadmissible in divorce
proceedings (Article 439 § 1 Polish Code of Civil Procedure), although
the defendant may, as a result, also request a divorce or separation
(Article 439 § 3 Polish Code of Civil Procedure).Since the services of
a lawyer is not obligatory in divorce proceedings, each party may
personally go to the competent court, undertake certain actions in
connection with the legal proceedings, lodge motions, appoint an
attorney or - in some cases - request the court to appoint an attorney
for him or her. It should be emphasized that the hearing of evidence aims first of all,
to establish the circumstances regarding the disintegration of
matrimonial life as well as circumstances regarding the parties
children and their situation, and when the defendant admits the claim
reasons why the defendant has admitted the claim (Article 441 Polish
Code of Civil Procedure). As the regulation of separation has only been
in force for a relatively short period of time in Polish law, there is
yet no case law on whether a previous decree of separation will act as
a presumption of the existing disintegration of matrimonial life.
Polish
law divorce is regulated by the statute of February 25, 1964: The
Polish Family and Guardianship Code, which came into force on January
1, 1965. The statute is divided into three parts (titles), the first of
which concerns matrimonial matters of marriage.
There is some relationship between the institutions of divorce and
separation. The latter was introduced into the Polish system of family
law in 1999. The regulation of separation shows certain similarities to
that of divorce. Separation is decided by the court when there is a
complete (but not irretrievable) disintegration of matrimonial life.
The judicial decree of separation in principle has the same effects as
a divorce, unless otherwise provided by statute. The most significant
difference is that a separated person is not allowed to remarry. The
introduction of separation, however, has not led to any changes in the
provisions regulating divorce. Thus, the latter provisions do not treat
separation as a cause of divorce nor as a condition therefor. On the
other hand, the provisions on separation do not say anything about the
possibility of a subsequent divorce, although such a possibility is
generally considered to exist. It seems correct to conclude that
separation in Polish law is to be an instrument to ensure the
durability of marriage through preventing rash divorces, rather than an
institution which is a substitute for divorce. In the legal literature
there are those who are in favour of granting a divorce simply on an
unanimous motion by the spouses.
The positive prerequisite for
divorce is - as provided in Article 56 § 1 Polish Family and
Guardianship Code - "the irretrievable and complete disintegration of
matrimonial life." This complete disintegration will consist of a lack
of any spiritual, physical and economic bonds between the spouses.
According to the view of the Supreme Court, however, some elements of
an economic bond may remain due to the specific circumstances, which do
not exclude such a complete disintegration if the lack of spiritual and
physical bonds is complete. However, even sporadic physical intercourse
will, as a general rule, mean that the disintegration is not complete.
Then, the irretrievable nature will depend on the assumption that the
spouses will not return to each other at any time. It is not necessary
to establish that the revival of matrimonial life is definitely
excluded. It is sufficient to establish that in the given circumstances
of the case a return to common matrimonial life will not occur. That
the disintegration of matrimonial life is complete and irretrievable
must occur simultaneously. Contrary to the regulations of The Family
Code of 1950, it is no longer essential that the complete and
irretrievable disintegration of matrimonial life has occurred due to an
important specific cause.
Despite the complete and irretrievable disintegration of matrimonial life, a divorce will not be granted if:
Divorce cases are examined in the first instance by regional courts
(Article 17 point 1 Polish Code of Civil Procedure), which constitute
the second level in the structure of Polish courts of common law,
intermediate between district courts (that form the first level) and
the courts of appeal (the third level). The competence ratione loci of
the courts in divorce proceedings is determined by the following
circumstances:
A marriage will be dissolved at the moment
when the judgement becomes final, i.e. when the judgement cannot be
appealed because of the expiry of time-limit for lodging an appeal or
because of the exhaustion of the appeal process. Entering the divorce
in the marriage register at the marital status office is only of
declaratory significance and thus has no constitutive force.
There are no presumptions as to the complete and irretrievable
disintegration of matrimonial life under Polish law. The court
establishes the disintegration according to general rules regulating
the hearing of evidence (types of evidence, evaluation of evidence)
with the following distinctions:
The maintenance of spouses after divorce is regulated by Articles 60
and 61 of the Polish Family and Guardianship Code . Article 60 §§ 1-2
regulates the prerequisites for the duty of maintenance between former
spouses, while § 3 regulates the situations in which the duty ends.
Article 61 provides for maintenance between the former spouses, while
other provisions regulate maintenance between relatives, i.e. Articles
128 -130 and 132-139 Polish Family and Guardianship Code.22
The rules relating to maintenance upon divorce are not directly
connected with the rules relating to matrimonial property law, but
there does appear to be a close functional connection. One of the main
consequences of divorce is the transformation of the joint property of
the spouses (indivisible joint co-ownership) into co-ownership in
fractional parts (Article 42 Polish Family and Guardianship Code). The
former spouses can partition joint property into two equal parts
(Articles 43, 45 and 46 Polish Family and Guardianship Code). In this
way each of the spouses obtains his/her own property for the purposes
of his/her future existence. In practice, however, the joint ownership
of the matrimonial home will prove to be a problem. The court takes the
amount of matrimonial property into account when deciding on
maintenance.
Between former spouses there are two types of
maintenance claims: the 'narrow'one and the 'broad'type. According to
Article 60 § 1 Polish Family and Guardianship Code, the background of
the narrow type is lack of means (poverty). The extent of this
maintenance depends on the 'justified needs of the entitled spouse'and
on 'the economic and earning ability of the spouse obliged to pay
maintenance'; the spouse who is solely to blame for the breakdown has
no right to maintenance (Article 60 § 1 Polish Family and Guardianship
Code).
According to Article 60 § 2 Polish Family and
Guardianship Code, the broad type only exists between the 'guilty'
spouse and the 'innocent'party, who can demand maintenance if the
divorce has led to a serious deterioration in the economic life of the
innocent spouse. The amount of this type of maintenance is higher than
the narrow one and it depends on the justified needs of the entitled
innocent spouse. The amount of the maintenance must also be
'reasonable'and depends on 'the economic and earning ability of the
spouse obliged to pay maintenance'. Practically speaking the entitled
spouse cannot maintain the same standard of living as before the
divorce. According to Article 60 § 1 Polish Family and Guardianship
Code the spouse who has sole guilt for the breakdown of the marriage
cannot claim any maintenance.
In the narrow type the amount of
the maintenance only depends on the level of essential needs and the
standard of living during the marriage has no influence on establishing
the amount of maintenance. In the broad type the amount depends on two
factors: on the standard of living during the marriage and on the
economic ability of the debtor. In practice, no 'Maintenance
Standards'exist as such.
According to Article 60 § 2 Polish
Family and Guardianship Code in that case the innocent spouse can claim
the broad type of maintenance if the divorce has resulted in a serious
deterioration in his/her economic standard of living. But the broad
type of maintenance is neither an 'award'for 'innocence'nor a
punishment for 'fault'. It has no compensatory character or function.
The idea of the broad type of maintenance is that the situation of the
spouses is considered to be akin to the situation of partners in a
commercial partnership; if one commercial partner decides of his own
accord to terminate the partnership he has to bear all the costs of
liquidation. It is therefore not compensation as such, but a kind of
continuation. It means that the consequences of marriage survive after
divorce during the post-divorce period and the problem of the duration
of the post-divorce period will also occur.
