When the court will order a divorce?

Positive conditions of divorce

According to art. 56 of the Family and Guardianship Code if there has been a complete and irretrievable breakdown of the marriage between the spouses, either spouse may demand the court to order the marriage dissolved by divorce. A positive condition of divorce is the breakdown of the marriage, which should be complete and irretrievable. Based on the judgments of the Supreme Court and doctrine by matrimonial life should be understood all mental (emotional), physical and economic relationships between spouses.

Complete breakdown of marriage

The complete breakdown of the marriage occurs when all relationships are broken – emotional, physical and economic.

Emotional ties are considered the most important, these relationship is considered broken when the spouses are hostile to each other but also in cold behavior or lack of interest.

The breaking of physical ties should be understood as cessation of sexual intercourse and loss of any sensitive gestures indicative of love and respect.

While economic ties concern the financial sphere, including keeping and staying in a common household, The breaking of this relationship is mainly related to the separate residence of spouses.

Irretrievable breakdown of marriage

The irretrievable breakdown of the marriage should be understood as the lack of any prospects for the return of spouses to a shared life. The court makes this assessment based on the principles of life experience, examining i.a. the duration of the breakdown. A longer time of breakdown of the marriage increases the probability of its irretrievable.

Negative conditions of divorce

However, it may turn out that despite the complete and irretrievable breakdown of matrimonial life, the divorce will be not permitted. The Family and Guardianship Code provides for the so-called negative conditions. The court will not adjudicate a divorce if:

  1. it would be detrimental to the welfare of the minor children of both spouses – this applies to spouses’ children who are common and minor at the same time, children adopted by both spouses  and the children of one of the spouses adopted by the other should also be considered as a common children,
  2. there are other reasons why the decision to divorce is contrary to the principles of social coexistence – the court makes assessment most of all based on the good and interests of the spouse or other persons, e.g. an incurable illness,
  3. it has been demanded by the spouse who is solely at fault for the breakdown of the marriage unless:
  • the other spouse consents to the divorce, or
  • the refusal to consent to the divorce is, in the given circumstances, contrary to the principles of social coexistence.
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Martyna Dudkowiak
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