GROUNDS FOR DIVORCE AND MAINTENANCE BETWEEN FORMER SPOUSES: POLAND
(Extracts)
Prof. Andrzej Maczynski
Dr. Tomasz Sokolowski
Jagiellonski University, Krak? Adama Mickiewicza University, Poznan, Gdanski University, Gdansk
October 2002

In Polish law divorce is regulated by the statute of 25 February 1964  The Polish Family and Guardianship Code, which came into force on 1 January 1965. The statute is divided into three parts (titles), the first of which concerns matrimonial matters of marriage. 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 23 April 1964, which came into force on 1 January 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.

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:
§  as a consequence it is detrimental to the welfare of the common minor children of the spouses (Article 56 § 2 Polish Family and Guardianship Code);
§  granting the divorce would be contrary to the principles of social intercourse (Article 56 § 2 Polish Family and Guardianship Code)
§  it has been requested by the spouse who is the sole guilty party for the disintegration of matrimonial life, unless the other spouse has expressed his or her consent thereto , or te refusal of such consent by the other spouse is - in the given circumstances - contrary to the principles of social intercourse (Article 56 § 3 Polish Family and Guardianship Code)
The existence of the prerequisites for divorce will be examined by the court ex officio (of its own motion).

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:
§  the last common place of domicile of both spouses if one of the spouses still remains there (not necessarily takes up domicile!),
§  the defendant's place of domicile (which is a general rule for competence ratione loci in Polish civil proceedings);
§  the plaintiff's place of domicile (Article 41 Polish Code of Civil Procedure).

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.

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:
§  A decision may not be exclusively based on the admission of the claim or of certain facts by the defendant (Article 431 Polish Code of Civil Procedure);
§  hearing the testimonies of both parties is an obligatory source of evidence (Article 432 sentence 1 Polish Code of Civil Procedure);
§  if the defendant admits the claim and the spouses have no common minor children, the court may limit the hearing of evidence to hearing the parties Article 442 Polish Code of Civil Procedure).

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.

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.