CASE OF BABIARZ v. POLAND
Preliminary objection joined to merits (Article 35-3 - Ratione materiae);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);No violation of Article 12 - Right to marry (Article 12 - Marry)
András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1971 and lives in Dębowa Kłoda. 6. In 1997 the applicant married R. In 2004 R. underwent infertility treatment so she could conceive a child with him. 7. In autumn 2004 the applicant met A.H. In January 2005 he moved out of the flat he had lived in with R. 8. On 31 October 2005 A.H. gave birth to their daughter, M. 9. On 25 September 2006 the applicant filed a petition for divorce. At first he requested a no-fault divorce. In his petition the applicant referred to various marital misunderstandings and quarrels for which he blamed the respondent. He admitted that he had moved out of the matrimonial home, but did not mention his involvement with a new partner. 10. At a hearing held on 15 November 2006 the applicant refused to undergo the mediation process provided for by divorce law. R. did not agree to a divorce, declared that she loved the applicant and asked the court to dismiss the divorce petition. 11. Subsequently, the applicant requested a divorce on faultbased grounds. 12. During the proceedings thirteen witnesses were heard. Most of them were of the opinion that the marriage seemed happy until autumn 2004. Only the applicant’s mother, his two colleagues and his cousin recalled minor arguments between the spouses. 13. During the final hearing on 9 February 2009 the respondent reiterated her refusal to divorce. 14. On 17 February 2009 the Lublin Regional Court refused to grant the divorce to the applicant. The court held that he was the only person responsible for the breakdown of his marriage because he had failed to respect the obligation of fidelity. The court did not find it credible that problems had already begun within the first year of the marriage. It observed that until 2004 the applicant had not wanted children. In that year he had changed his mind. For that reason R. had undergone surgery, the operation having taken place in August 2004. 15. The marital situation had subsequently changed when the applicant had met A.H. He had no longer wished to have a child with his wife. The court noted contradictions between the testimony given by the applicant, who had referred to the alleged serious problems in marital life prior to 2004 on the one hand, and the decision to treat R.’s infertility in summer 2004 on the other. The respondent had been shocked by the applicant’s unfaithfulness and had been treated for depression since autumn 2004. 16. The court acknowledged that there had indeed been “a complete and irretrievable marriage breakdown” within the meaning of Article 56 § 1 of the Family and Guardianship Code. Reconciliation was unlikely as the applicant had consistently rejected all attempts made by R. to reconcile their differences. Moreover, he had been in a relationship with A.H. for almost four years and had a child with her. 17. The court emphasised that under Article 56 § 3 of the Family and Guardianship Code, a divorce could not be granted if it had been requested by the party whose fault it was that the marriage had broken down, if the other party refused to consent and the refusal of the innocent party was not “contrary to the reasonable principles of social coexistence” (zasady współżycia społecznego) within the meaning of Article 5 of the Civil Code. 18. The court considered that R.’s refusal to divorce should be presumed to be compatible with those universally accepted principles. It referred to the case-law of the Supreme Court to the effect that a refusal of consent to a divorce was to be presumed to be compliant with those principles unless there were case-specific indications to the contrary. There was no indication that when refusing to give her consent R. had acted out of hatred, was motivated by vengeance, or simply wanted to vex the applicant. The court emphasised that she had repeatedly stated during the proceedings that she was ready to reconcile with him despite the fact that he had a child with another woman. 19. The court stressed that the duration of the applicant’s new relationship could not by itself be considered to be a sufficient reason for granting the divorce. 20. The applicant appealed against the judgment. He argued, inter alia, that the court had erred in holding that a spouse’s refusal to consent to a divorce could be disregarded only when it was of an abusive nature or was dictated by hostility towards the spouse seeking the divorce. The court should have examined the negative social consequences caused by continuing the formal existence of failed marriages. In his case, it had failed to do so. 21. On 16 June 2009 the Lublin Court of Appeal dismissed the applicant’s appeal. 22. The applicant did not request to be served with the written grounds for the appellate judgment. The grounds were therefore not prepared. 23. The judgment was final, a cassation appeal against a divorce judgment not being available in law.