Divorce with a finding of fault—the legal consequences | In Principle

When there is a complete and irretrievable breakdown of a marriage, either spouse can apply to the court for dissolution of the marriage by divorce. But the court does not have to make a ruling on fault if the spouses both waive that option. A divorce decree without a ruling on fault has the same effects as a case where neither spouse was at fault. But what if the court does issue a ruling finding that one of the spouses was at fault for the breakdown of the marriage—or that both spouses were at fault?

It should be pointed out at the outset that in Poland, divorce is not permitted (despite complete and irretrievable breakdown of the marriage) if it is sought by the spouse who is solely at fault for the breakdown, unless the innocent spouse consents to the divorce or, under the circumstances, the innocent spouse’s refusal to consent to the divorce would conflict with principles of social coexistence (Art. 56 §3 of the Family and Guardianship Code).

In the case of a divorce with a ruling on fault for breakdown of the marriage, the court may find that one spouse is solely at fault or that both spouses are at fault.

Each of these findings gives rise to further consequences for both the guilty spouse and the innocent spouse. The spouse who is at fault must expect to face negative consequences, such as a duty to pay alimony to the innocent spouse long into the future.

Crucially, the courts take the view that there are no degrees of fault for breakdown of the marriage. This means that if one spouse’s behaviour contributed to the breakdown, even to a lesser degree than the other spouse, both spouses will be found at fault (e.g. Supreme Court of Poland order of 20 November 2020, case no. III CNP 6/20).

What is fault in the breakdown of the marriage?

Ascribing fault to a spouse for breakdown of the marriage constitutes a negative moral assessment of the spouse’s behaviour.

“Fault” as such is not defined in the Family and Guardianship Code, and thus family courts considering issues of fault most often draw from the understanding of this concept developed by the civil law (e.g. under Civil Code Art. 415 in connection with Art. 425).

In the civil law, fault comprises two elements: objective, i.e. violating a certain standard of behaviour; and subjective, in the sense of the person’s psychological attitude toward their own act or omission. Both elements must exist for the court to make a finding of fault.

It is broadly accepted in the jurisprudence that the objective element exists when the spouse’s behaviour violates his or her duties:

• Statutory duties, e.g. duties arising under the Family and Guardianship Code—for example, if one of the spouses refuses to help the other, commits adultery, or fails to cooperate for the good of the family, it is a violation of the duty set forth in Art. 23
• Duties arising out of principles of social coexistence—the courts recognise that a spouse’s fault may be shown not only in violation of any of the marital duties set forth in the Family and Guardianship Code, but also behaviour displaying gross disloyalty to the other spouse (e.g. Supreme Court judgment of 8 December 2000, case no. I CKN 1129/99); thus in each case the court has room for interpretation of whether a spouse’s behaviour is so inconsistent with generally accepted principles that the spouse can be found at fault for breakdown of the marriage.

In turn, to find the existence of the subjective element of fault on the part of a spouse, the court should make a psychological analysis of the spouse’s behaviour. Thus the assessment of the reprehensibility of the spouse’s behaviour rests mainly on moral, not legal, criteria.

Unintentional fault can suffice

As mentioned, the courts generally assess fault on the part of divorcing spouses by relying on the Civil Code. In practice this means that for the court to ascribe fault to a spouse’s behaviour, the spouse did not have to intend to cause the breakdown of the marriage. Acting with that aim would be intentional fault, but it is recognised that a spouse may be found at fault for breakdown of the marriage even if the spouse’s fault was unintentional. Unintentional fault means that the spouse should or could have foreseen that the consequences of their behaviour could lead to breakdown of the marriage.

Example: Zdzisław J. was in the course of writing his doctoral dissertation, to which he attached great ambition. He informed his wife, Julia, that until he completed his doctorate, he would resign from his current well-paid job at a law firm.

For two years, Zdzisław spent days and nights in the library or on excursions researching materials for his dissertation. After work he would often meet a woman named Monika, a friend from undergraduate days who, as it happened, was now also writing a dissertation in the same department at the university. Over dinner they would mainly discuss professional matters. Julia could not bear the resulting loneliness, nor the fact that her husband was not earning money—for about a year Julia had been supporting Zdzisław. She also suspected that Zdzisław might be cheating on her, as Julia was aware of his close and ambiguous friendship with Monika.

Consequently, Julia seeks a divorce with a finding of fault on Zdzisław’s part, alleging that the marriage has completely and irretrievably broken down. Zdzisław counters that he cares about the marriage, and claims that with Monika he only discusses matters related to their research. Zdzisław says that he plans to complete the doctorate within the next few years, when he will be able to fully devote himself to the family.

Under these facts it is likely that if the court finds that there has been a rupture of the spouses’ physical, emotional and financial ties, and that this state has continued for two years without prospects for improvement, the court will grant Julia’s request and decree a divorce due to the fault of the husband, even though his fault was not intentional (as he did not wish to cause the breakdown of the marriage).

Can anyone be found at fault?

In an interesting judgment from 5 January 2001 (case no. V CKN 915/00), the Supreme Court observed that because fault for purposes of the Family and Guardianship Code applies the principles from the Civil Code by analogy, fault cannot be ascribed under circumstances excluding the wrongfulness of the action (e.g. if one acted in self-defence, Civil Code Art. 423, or out of a higher necessity, Art. 424). Nor can fault be ascribed to a person who for whatever reason is in a condition preventing them from making a free and conscious choice (Civil Code Art. 425 §1). The court did add a layer of nuance to the latter issue, however, finding that fault can be ascribed to a spouse who is in a condition where they are unable to make a free and conscious choice because they suffer from a mental illness triggered by alcohol abuse.

It can be concluded from this judgment that when a spouse is accused of fault for breakdown of the marriage, the spouse’s mental state can affect the ability to find the spouse at fault. This means that a spouse cannot be found at fault for the breakdown of the marriage if the spouse’s act or omission occurred in a state of insanity or at least a temporary psychiatric disturbance. This means that a spouse’s mental illness can sometimes exclude ascribing fault to him for breakdown of the marriage. But this will depend on the type of disorder, and whether the marriage broke down because of a specific event or due to numerous causes (for example if a mentally ill spouse committed adultery).

Summarising this portion of the article, not every person can be found to be at fault. The assessment of whether a spouse is at fault for breakdown of the marriage cannot be conducted in isolation from whether, during the event alleged to have caused the breakdown of the marriage, the spouse in question was in a state excluding free and conscious choice, or for example acted in self-defence.

Consequences when one spouse is found to be at fault

One of the most severe financial consequences for a spouse found at fault for the breakdown of the marriage is that they can be ordered to pay alimony to their (innocent) former spouse.

A spouse can assert a claim for alimony against the other spouse even during the course of the divorce. Former spouses can also seek alimony after the divorce decree becomes final, in a separate proceeding. It should be borne in mind that the court is required to rule on child support for the divorcing couple’s minor children at the court’s own initiative, but the court will rule on alimony between the spouses only at the request of one of the spouses. If such an application is made, the court has a duty to resolve the issue of alimony between the spouses.

The guilty spouse may be ordered to pay alimony to the innocent spouse if as a result of the divorce the innocent spouse’s material situation has significantly worsened (Family and Guardianship Code Art. 60 §2). In determining whether the innocent spouse’s material situation has significantly worsened, the courts compare the innocent spouse’s situation with the hypothetical situation that would have existed if there had been no divorce and the spouses continued the marriage (e.g. Supreme Court judgment of 7 January 1969, case no. II CR 528/68).

Moreover, the duty of one of the spouses to provide support payments to the other spouse after dissolution of the marriage takes precedence over familial support obligations toward the innocent spouse on the part of other family members (Art. 130). In practice, this means that even if the innocent spouse is receiving financial assistance from relatives, this does not exclude the possibility of prolonging the obligation of the guilty spouse to pay alimony to the innocent spouse (e.g. Supreme Court judgment of 12 September 2001, case no. V CKN 445/00).

The assessment of the significant worsening of the material situation of the innocent spouse may be conducted even many years after the divorce decree is issued. It may work to the guilty spouse’s favour, however, that if the court is asked to rule on such a claim years after the divorce, it must find that the deterioration in the innocent spouse’s situation is due to the divorce and not other events (see Supreme Court judgment of 15 July 1999, case no. I CKN 356/99, Lex no. 527172).

The obligation to pay alimony between former spouses lasts for five years after the divorce decree if the former spouse required to pay alimony has not been found to be at fault for breakdown of the marriage. But for the guilty spouse, the alimony period can be much longer than five years—even lifelong.

The courts almost universally recognise that when setting the amount of alimony, the maximum amount sought by the innocent spouse should be adjusted to the financial situation and earning capacity of the guilty spouse exercising due diligence (the courts take a dim view of attempts by guilty spouses to artificially reduce their earnings in order to pay less alimony). However, the courts also stress that alimony must not be used as a weapon of financial revenge against the guilty spouse.

Commentators on the Family and Guardianship Code take the view that inflated financial expectations on the part of the innocent spouse, as well as irresponsible behaviour by the guilty spouse intentionally minimising or hiding their own income in order to minimise the potential alimony they may have to pay, should both be condemned (J. Sasiak in M. Fras & M. Habdas, eds., Family and Guardianship Code: Updated commentary (LEX/el. 2023), Art. 60).

In this respect, the spouse solely at fault for breakdown of the marriage must remember that if they become destitute following the divorce, they will not be allowed to demand financial support from the innocent spouse (Art. 60 §1, a contrario).

What if both spouses are at fault for breakdown of the marriage?

Under the Family and Guardianship Code, a spouse solely at fault for breakdown of the marriage, and a spouse who shares the blame for breakdown of the marriage, are both regarded as at fault for breakdown of the marriage.

If the court find that both spouses are at fault for breakdown of the marriage, either of them may seek alimony under Art. 60 §1 (“A divorced spouse who was not found to be solely at fault for breakdown of the marriage and who is in need may demand financial support from the other divorced spouse suited to the justified needs of the obligee and to the earning capacity and financial situation of the obligor”), but not under Art. 60 §2 (i.e. when the former spouse’s material situation has merely worsened as a result of the divorce).

Thus a guilty spouse seeking alimony under Art. 60 §1 will have to show that he or she is in need, and the court will set any alimony it awards in light of the justified needs of the party seeking alimony as well as the financial situation and earning capacity of the other spouse. There is no definition in the Family and Guardianship Code of what it means to be in need. In each case the court will examine the justified needs of the individual, taking into account their age, health and education as well as their lifestyle during the marriage. As a rule, an award of alimony between guilty spouses will not be limited to five years (Art. 60 §3, a contrario).

Thus, alimony may be awarded under Art. 60 §1 when:

• Both spouses are at fault for breakdown of the marriage
• Only one spouse is at fault for breakdown of the marriage (and that spouse is the one ordered to pay alimony)
• At the parties’ mutual request, the court made no finding on who was at fault for breakdown of the marriage, or
• The court finds that neither of the spouses was at fault.

Another significant aspect of divorce due to the fault of both spouses follows from Art. 940 §1 of the Civil Code. That section provides that the decedent’s spouse is excluded from statutory inheritance if, before death, the decedent had applied for divorce or separation due to the fault of the other spouse and the demand was justified. The divorce proceeding must be pending at the time of death, and the divorce petition must have obliged the court to rule on fault. This provision introduces an exception to the rule that if the marriage exists at the time of death, under the intestacy rules the surviving spouse is legally entitled to inherit on an equal footing with the decedent’s children (Civil Code Art. 931 §1). This exception is intended to protect the presumed financial interests of persons dying without a will.

Does an ex-spouse at fault for breakdown of the marriage have to accept that they will be paying alimony for years into the future?

An ex-spouse found at fault for breakdown of the marriage should bear in mind that it is possible to file a claim to reduce or eliminate the alimony obligation under Art. 138 in connection with Art. 61 of the Family and Guardianship Code, e.g. based on a significant change in circumstances. For example, if the ex-spouse receiving alimony takes up a well-paying job, the court might set aside the alimony obligation in light of the facts as they exist at the time of the new ruling.

Finally, it may come as a relief to persons found at fault for breakdown of the marriage to know that attribution of sole fault or shared fault for breakdown of the marriage does not have a decisive impact on the issue of child custody, how custody is exercised, or personal contacts with minor children. This is because when ruling on child custody and personal contacts with the child, the situation of the child is of overriding importance. Under Art. 95 §3 of the Family and Guardianship Code, parental authority should be exercised as required by the good of the child and the interests of society. This means that it is theoretically possible to grant child custody to a spouse at fault for breakdown of the marriage, if the spouse’s other characteristics as determined during the course of the proceeding ensure that the person can take proper care of the child.

Aleksandra Cygan, adwokat, Dispute Resolution & Arbitration practice, Wardyński & Partners