A prerequisite for adjudicating divorce. Warsaw, May 19, 2020
A prerequisite for adjudicating divorce (a so-called positive premise) is the “irretrievable and complete breakdown of marital life”. It is a mandatory condition.
A “breakdown of the marriage” means a cessation of common marital life in its emotional, physical and economic aspect (Polish “wspólne pożycie”) that the spouses are obliged to conduct. Hence, there is a strict conceptual and substantive connection between the obligation of the spouses concerning the “common marital life” and the prerequisite for divorce formulated as “irretrievable and complete breakdown of marital life”.
According to the Supreme Court “Marital life is characterized by a unique kind of spiritual, physical and economic bond”.
According to the Supreme Court for a marital breakdown to be declared irretrievable it is not necessary to establish that it is absolutely impossible for the spouses to restore their marital life. It is sufficient to conclude, based on practical life experience, that in the circumstances of the case the spouses will not restore their marital life.
Hence, a marital breakdown manifests itself in the cessation of a marital emotional, physical and economic bond.
In the light of decisions of the Supreme Court, the fundamental bond of marital life is the spiritual bond. The absence of the spiritual bond is always a manifestation of a marital breakdown.
For the purposes of adjudicating divorce, unlike in the case of a separation, the marital breakdown must be not only complete but also irretrievable. The breakdown may be declared irretrievable only if it is already complete. The marital breakdown is irretrievable if there are no prospects (anticipation) for restoring marital life by the spouses.
According to the Supreme Court the spiritual (emotional, physical bond) “community consists in mutual positive emotional attitudes of the spouses, respect, confidence, sincerity, loyalty, understanding, acceptance of personal qualities of the spouses, taking into account their personal needs and readiness to make concessions”.
The Supreme Court also explains that “in order to assert the absence of spiritual community between the spouses it is not necessary to conclude that they have hostile or at least reluctant attitudes to each other. Maintaining civil relations, contacts in the interest of their children, etc. does not necessarily mean that a spiritual bond between the spouses exists and therefore no marital breakdown occurred. The spiritual bond being sought here is not that between any two humans, but that characteristic of a spiritual marital community”. The Supreme Court points out that such “spiritual community” can be manifested even in correspondence alone”.
In the light of Supreme Court’s judicial practice, “common marital life” generally includes sexual intercourse between the spouses referred to as the “physical” (intimate, sexual or bodily) bond. A disappearance of this bond may be a manifestation of complete breakdown of the marital life.
In judicial practice, the economic bond is considered tantamount to running a common household. The legal commentaries take this view further and indicate that the economic life is usually manifested by living together, having common property, running one household, preparing and having meals together.
A complete and irretrievable breakdown of the marital life is also attested to by the spouses’ mutual consent to divorce. The spouses’ consent in this respect does not release the court from the obligation to examine all material circumstances of the case. If one of the parties consents to divorce, the court should examine if she/he is not being pressed by the other spouse to agree to the divorce, and whether such consent is indeed a result of her/his reflection upon the future of the communion, rather than an effect of some other circumstances” (sentence of the Appellate Court in Rzeszów).
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Warsaw, May 19, 2020