PIOTROWSKI v. POLAND
Inadmissible
András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
1. The applicant, Mr Andrzej Piotrowski, is a Polish national, who was born in 1952 and lives in Łódź. He was represented before the Court by Ms M. Wentland-Walkiewicz, a lawyer practising in Łódź. 2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 23 April 1977 the applicant married D. in a civil ceremony. In 2004 the applicant and D. married in church. 5. On 12 January 2010 the applicant filed a petition for divorce. He asked for a no-fault divorce (that is, for the court not to make any findings that either party was at fault for the breakdown of the marital relationship). The applicant stated that for a few years he could not agree with his wife on many issues touching on the basic aspects of everyday life, and that their life together had not been harmonious. This had caused a number of arguments and in May 2009 he had moved out of their flat. 6. In her reply to the petition, the respondent submitted that her marriage to the applicant was amicable, pleasant and that they used to be considered by other couples as having an exemplary relationship. She was of the opinion that the only reason the applicant had petitioned for divorce after thirty-two years of married life was because he was having an affair with another woman. The applicant had moved out of their flat in May 2009 but had returned in October of that year (despite continuing his relationship with the other woman). The respondent was of the view that this was a brief period of foolishness and that she could forgive her husband for his affair. 7. In pleadings dated 2 April 2010 the applicant changed his claim. He applied for a divorce on fault-based grounds (wina wyłączna). In his opinion, the respondent used to be controlling, incapable of reaching a compromise on any issue and unwilling to accept his arguments. This was, in his view, the main reason for the breakdown of their marriage. 8. During a hearing held on 16 June 2010 the applicant’s aunt, M.P., testified. She said that D. was a very good wife. She cared deeply about the applicant and was very conscientious about household tasks. The witness had never heard the applicant complaining about his marriage. A second witness, B.L., the parties’ friend, testified that the applicant and the respondent had complementary personalities and that she had never seen them fighting. A third witness, J.K., also their friend, recalled that the applicant used to say that he had “a wife and a mother in one” because of the good care the defendant had been taking of him. In his opinion, the applicant was satisfied with his marriage. A fourth witness, W.T., the respondent’s brother, said that in his view the marriage was good. 9. During a hearing on 4 October 2010 the applicant’s mother testified that she had considered her son’s marriage to be good. The applicant had never complained about his wife, but she sometimes complained about his flaws. She was not convinced that her son had really carefully considered his decision about the divorce. The parties’ home had been clean and well-kept thanks to the respondent’s efforts and work. She recalled only minor misunderstandings between the parties. The second witness, M.K., the applicant’s cousin, stated that the applicant had been deeply in love with the respondent. She had not heard the applicant praising the quality of his married life or complaining about it. 10. During a hearing on 7 February 2011 two witnesses expressed the opinion that the marriage was good. 11. The parties to the proceedings were also heard. The applicant testified that his new partner was against his divorce. Nevertheless, his new involvement had helped him to ponder carefully his decision to divorce. The applicant accused the respondent of infidelity, which had allegedly taken place during their engagement. He described his marriage as boring. The respondent did not agree to the divorce. In her opinion the applicant’s affair was just a passing period of foolishness. She declared that she loved the applicant and her willingness to give him a second chance. 12. On 16 February 2011 the Łódź Regional Court refused to grant the divorce. The court established that the applicant and D. had married in 1977. They did not have children. In 2004 they had married in church. Subsequently, the applicant had met another woman. In May 2009 he had informed D. that he had fallen in love with someone else. 13. The court held, having regard to the evidence gathered in the proceedings, that the breakdown of the marriage was complete and irretrievable within the meaning of the provisions of the Family and Guardianship Code on divorce. The financial, emotional and sexual relations between the spouses had come to end, essentially because of the applicant’s relationship with another woman. The court was of the view that there was no prospect of him returning to his wife. 14. The court further observed that D. was a very good partner to him and was not at fault for the breakdown of the marriage. She still loved her husband and was ready to forgive him for his affair. The court stressed that the applicant was the only person responsible for the marital breakdown. He was at fault not only because he had failed to comply with the spousal obligations enumerated in Article 23 of the Family and Guardianship Code, but also because he had not been loyal towards the respondent. He had failed to respect his obligation of fidelity and had clearly stated during the proceedings his intention to continue his relationship with another woman. Having regard thereto, the court considered that the wife’s refusal to give consent had to be considered to be legitimate and compatible with the principles of social coexistence within the meaning of Article 5 of the Civil Code. In this regard the court referred to established case-law of the Supreme Court concerning situations where an innocent spouse refuses to consent to a divorce. The court stressed that a refusal of consent to a divorce was a right and could not as such be presumed to be against the principles of social coexistence (Supreme Court judgment nos. II CKN 956/99 of 26 October 2000 and III CR 278/65 of 7 December 1965). Even considerable length of a separation between spouses did not override the presumption that a refusal to give consent to divorce complied with those rules (Supreme Court judgment no. III CR 147/65 of 18 August 1965). 15. The applicant appealed, challenging the findings of fact made by the court. He argued that his relationship with his wife had never been good. The fact that he had entered into a new relationship had been precisely because of the poor quality of their marriage. The court had been wrong in finding that his involvement with another woman had caused the marital problems. His relationship with her was viable as they had been living together for several months over the previous two years. The applicant referred to a new factor he had not raised before, namely that the respondent had not wanted to have sex with him. He changed his claim once again, asking this time for a divorce where both parties were considered at fault. 16. On 12 July 2011 the Łódź Court of Appeal upheld the first-instance judgment. It considered that the applicant’s wife was not at fault for the breakdown of the marriage and that her refusal to consent therefore had to be regarded as legitimate. The court noted that even the witnesses called by the applicant had testified that their marriage had been good and generally amicable. 17. The applicant and his legal representative were present at the hearing and during the oral pronouncement of the judgment. The president of the court read out the operative part and afterwards orally explained the main grounds for the decision. 18. On 14 July 2011 the applicant’s legal representative asked for the written grounds of the appellate judgment. On 5 September 2011 they were served on him. 19. Pursuant to Article 56 § 1 of the Family and Guardianship Code (Kodeks rodzinny i opiekuńczy), either spouse may file a petition for divorce if there has been a complete and irretrievable marriage breakdown (zupełny i trwały rozkład pożycia). For the purposes of establishing whether a complete breakdown has occurred, the established judicial practice is to examine ex officio whether the financial, emotional and sexual ties between the spouses have ended (Supreme Court decision no. III CKN 386/98 of 22 October 1999, and Katowice Court of Appeal decision no. I ACa 51/10 of 12 March 2010). The courts establish it applying the general procedural rules governing the taking of evidence, in addition to certain specific rules provided for by the Code of Civil Procedure for the purposes of divorce proceedings. 20. In particular, under Article 431 of the Code of Civil Procedure, a decision in a divorce case cannot be based exclusively on the admission of the claim or of certain facts by the respondent. Article 432 of the Code provides that both parties to a divorce case are to be heard in person. Under Article 442, if the respondent admits the divorce claim and the spouses have no minor children, the court may limit the taking of evidence to hearing the parties. 21. Under Article 56 §§ 2 and 3 of the Family and Guardianship Code, a divorce may not be granted even where there has been a complete breakdown of the marriage, if: “(2) ... it would be detrimental to the well-being of [the] minor children [of the marriage] or if, for other reasons, granting the divorce would be contrary to the principles of social coexistence (zasady współżycia społecznego); (3) ... it has been requested by the spouse who is at fault for the breakdown of the marriage, unless the other spouse has expressed his or her consent thereto, or the refusal of such consent by the other spouse is – in the circumstances at issue – contrary to the reasonable principles of social coexistence...” 22. Article 5 of the Civil Code reads: “No one shall exercise any right of his in a manner contrary to its socio-economic purpose or to the principles of social coexistence (zasady współżycia społecznego). An act or omission [fulfilling this description] on the part of the holder of the right shall not be deemed to be the exercise of the right and shall be protected [by law].” 23. The courts have developed ample case-law addressing situations where a respondent spouse refuses to consent to a divorce. In particular, they have held that an innocent respondent has a right to refuse to consent. A presumption of good faith was therefore applicable to such a refusal, until it was demonstrated, with reference to the specific circumstances of a case, that the refusal ran counter to the principles of social coexistence within the meaning of Article 5 of the Civil Code (Supreme Court decision nos. II CKN 956/99 of 26 October 2002 and I CKN 305/01 of 26 February 2000). In particular, the respondent spouse’s intention to frustrate the petitioner’s plans to formalise his or her extramarital relationship should not, by itself, be regarded as being incompatible with these principles, if it has been shown that the refusal was inspired by a wish to continue the marriage, consistent with ethical and social standards (Supreme Court decision no. CKN 305/01 of 26 February 2002). 24. The courts are obliged to assess whether or not a refusal to consent to a divorce amounts to an abuse of rights in the light of the spouses’ situation and conditions caused by the breakdown of their marriage, both of the innocent respondent and the petitioner. It is only in the light of these findings that a thorough assessment can be made whether a refusal is consonant with universally accepted morality rules (reguły moralności) and whether or not it is detrimental to other interests worthy of legal protection (Supreme Court decision no. I CKN 871/00 of 4 October 2001). The factors to be taken into account include, inter alia, the spouses’ health, age and ability to earn a living and the length of the marriage (Supreme Court decision nos. I CR 565/57 of 22 May 1958 and III CKN 573/98 of 9 October 1998, and Białystok Court of Appeal decision no. I ACa 48/97 of 6 March 1997). The fact that the petitioner has children born from an extramarital relationship is also of relevance (Supreme Court decision no. C 1115/52 of 8 July 1952). 25. The refusal of an innocent spouse should be overridden if it is shown that the respondent is motivated merely by a wish to harass the petitioner and to prevent him or her from formalising his or her new relationship (Supreme Court decision no. III CKN 665/00 of 21 November 2002). The respondent’s conduct after the marriage breakdown also has to be taken into consideration; if it is spiteful and reprehensible, the refusal of consent can be overridden (Supreme Court decision no. II CKN 1270/00 of 21 March 2003). Likewise, the causes of the breakdown and the circumstances which have arisen thereafter, including the existence of other relationships and extramarital children, have to be taken into consideration by the court (Supreme Court decision no. III CKN 1032/99 of 10 May 2000). 26. Under Article 326 § 3 of the Code of Civil Procedure, the president of a judicial panel reads out the operative part of the judgment in open court. Afterwards the president or judge rapporteur orally explains the main grounds for the decision (podaje ustnie zasadnicze powody rozstrzygnięcia). 27. Under Article 328 of the Code, written grounds for a judicial decision may be prepared at a party’s request submitted within one week of its delivery. Written grounds must consist of a summary of the facts established by the court, refer to the evidence relied on by the court, indicate the reasons why the court considered that evidence to be credible and give legal reasons for the decision adopted.