Poland: ECHR: No Right To Divorce

Last Updated: 17 July 2017
Article by Grzegorz E. Woźniak

On 10th January 2017 the European Court of Human Rights found in the Babiarz v. Poland case that there had been no violation of Articles 8 or 12 of the European Convention on Human Rights in the Polish court's refusal to grant the applicant a divorce. According to the ECHR, the refusal to grant divorce has been consistent with Polish domestic law.

Facts of the case:

The applicant married his wife in 1997. In 2004 the wife underwent fertility treatment in order to conceive a child. The same year the applicant formed a relationship with a new partner and moved out of the marital home in January 2005. In October 2005 the applicant's new partner gave birth to their daughter.

In September 2006, the applicant filed a petition for a no-fault divorce. The wife did not agree to the divorce and asked the court to dismiss the petition. In February 2009 the court refused to grant a divorce to the applicant. The court held that the applicant was the only person responsible for the breakdown of the marriage because he had failed to respect the obligation of fidelity. It further emphasized that pursuant to domestic law, a divorce could not be granted if it had been requested by the party who was at fault for the marital breakdown and if the other party refused to consent and that refusal was not "contrary to the reasonable principles of social coexistence". In June 2009 the applicant's appeal was dismissed by the Court of Appeal in Lublin. The judgement of appellate court was final, as a cassation appeal against a divorce judgement is not available under Polish law.

The applicant applied to the European Court of Human Rights arguing that his rights under Articles 8 and 12 to marry and create a family had been breached by the court's refusal to grant a divorce and preventing him from marrying his current partner.

Article 8 of the European Convention states that 'everyone has the right to respect for his private and family life, his home and his correspondence', while Article 12 states that 'men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right'.

Judgement of the ECHR:

ECHR found that there has been no violation of Article and no violation of Article 12 of the European Convention. It held that both articles of the Convention cannot be interpreted as conferring on individuals a right to divorce. The court stated that Polish law provides detailed substantive and procedural rules which can lead to a divorce being granted. The first- instance judgement was subject to a review by the appellate court. The decision contained a detailed explanation of the interests that were taken into account, how the evidence was gathered and what the grounds of the dismissal the applicant's petition for divorce were.

Conclusions: 

No one would argue with the fact that it takes two people to marry. However, what should be done if one party (unfaithful) wants to finish the marriage and the other party (faithful) refuses the consent?

The answer is not easy.

Under the Polish 'Family and Guardianship Code', a divorce can be refused if it has 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". The majority found that there was no indication that when refusing to give her consent the wife had acted out of hatred, was motivated by vengeance, or simply wanted to vex the applicant. It said that the duration of the man's new relationship could not by itself be considered to be a sufficient reason for granting the divorce. In short, domestic law had been properly followed, and that did not breach Articles 8 or 12, neither of which conferred a right to divorce.

The decision in Babiarz vs Poland was not unanimous. It was held by 5 votes to 2. The two dissenting judges were Judge Sajó of Hungary and Judge Pinto de Albuquerque of Portugal. Judge Sajó's opinion is particularly interesting. He found that a right had clearly been interfered with in the case, i.e. the private life right not to be forced to live in a marital union with another person. He pointed out that there is no right to live as a married couple against the will of the other party, as secular law considers marriage to be a voluntary union. He concluded:

"I see no reason why the State should be able to force citizens to live in a partnership contrary to their choosing. A marriage between two citizens cannot provide the State with the prerogative of its perpetuation once one of the parties has taken the private and family life decision not to continue living under such a legal bond ... It is bad enough that a person has to deal with the fact that a lifelong decision such as marriage went wrong, for whatever reason. To allow the State to force people to live with their regretted life choices, thus preventing them from moving on with their private lives, inevitably entails an impermissible intrusion that cannot be considered necessary in a democratic society."

What is the point of keeping the marriage if two people do not want to live together any longer? It obviously doesn't serve the husband, who wants to move on with his life, nor his new family, and it does not serve the wife either, who is in the meaningless position of still being married to someone who no longer wants to be married to her. It also surely does not serve the institution of marriage, the very thing that those who support this sort of 'divorce denial' purport to want upheld – it does not support it, because here the husband actually wants to enter into a marriage, and this time a happy one, but is being denied that opportunity. The whole situation is a nonsense.

On the other hand, the marriage is not like any other commercial contract which can be easily revoked. It should take into account sensitivity of both parties.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
5 Sep 2017, Seminar, London, UK

U.S. President Donald Trump’s meeting with the regional leaders at the summit of the Three Seas Initiative group in Warsaw on 6th July was the first step towards improving trade, infrastructure and energy links among the 12 nations between the Baltic, Black and Adriatic Seas.

 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.