Communicated on 3 June 2014

FOURTH SECTION

Application no . 1955/10 Artur BABIARZ against Poland lodged on 15 December 2009

STATEMENT OF FACTS

The applicant, Mr Artur Babiarz , is a P olish national, who was born in 1971 and lives in Dębowa Kłoda .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 1997 the applicant married R.

In autumn 2004 the applicant met A.H. In January 2005 he moved out of the flat he shared with R.

On 31 October 2005 A.H. gave birth to their daughter, M.

On 25 September 2006 the applicant filed a petition for divorce.

The applicant firstly requested a no-fault divorce. However, R. did not agree to a divorce and asked the court to dismiss the applicant ’ s petition. Subsequently, the applicant requested a divorce based on R. ’ s fault.

On 17 February 2009 the Lublin Re gional Court refused to grant a 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 the crisis in the marriage had begun in its first year. It noted that as late as in 2004 R. and the applicant had wished to have a child. For this reason R. had undergone a surgery. The situation had changed when the applicant met A.H. and the applicant had no longer wished to have a child with his wife.

The court acknowledged that there was indeed “a total and permanent breakdown of the marriage bonds” within the meaning of Article 56 (1) of the Family and Custody Code. A reconciliation of the spouses 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 had a child with her.

However, the court emphasised that under Article 56 § 3 of the Family Code a divorce could not be granted if it was requested by the party who was at fault, the other party refused his or her consent and the refusal was not “contrary to the reasonable principles of social coexistence” ( zasady współżycia społecznego ) within the meaning of Article 5 of the Civil Code. The court considered that R. ’ s refusal to divorce should be presumed to be compatible with these universally accepted principles. There was no indication that R., when refusing to give her consent, had acted out of hatred, was motivated by vengeance or wanted to annoy the applicant. The court emphasized that she had repeatedly stated during the proceedings that she was ready to reconcile with him despite the fact that he had had a child with another woman.

The court stressed that the duration of the applicant ’ s new relationship could not by itself be considered as a sufficient reason for granting the divorce.

The applicant lodged an appeal against the first-instance judgment. He argued, inter alia , that the court had erred in holding that a refusal of a spouse to give his or her consent to divorce could be disregarded only when such refusal was of an abusive character or was dictated by hostility towards the spouse seeking divorce. The court should have examined the negative social consequences caused by maintaining the formal existence of failed marriages. In his case, it had failed to do so.

On 16 June 2009 the Lublin Court of Appeal dismissed the applicant ’ s appeal. When pronouncing the judgment in an open court the court essentially shared the legal view expressed by the first-instance court. The applicant did not request to be served with the written grounds for the appellate judgment and such grounds were therefore not prepared.

The judgment is final; a cassation appeal against it was not available.

B. Relevant domestic law and practice

Pursuant to Article 56 (1) of the Family and Custody Code ( Kodeks rodzinny i opiekuńczy ), each spouse can file a petition for divorce if a total and permanent breakdown of marriage bonds ( zupełny i trwały rozkład pożycia ) has occurred. For the purposes of establishing whether a total breakdown has occurred, the established judicial practice is to examine ex officio whether the economic, emotional and sexual bonds between the spouses came to an end (e.g. the Supreme Court, III CKN 386/98, of 22 October 1999; the Katowice Court of Appeal, I ACa 51/10, 1 2 March 2010).

The courts establish whether a breakdown has occurred under general procedural rules governing the hearing of evidence, with certain specific rules provided for by the Code of Civil Procedure for the purposes of divorce proceedings.

In particular, pursuant to Article 431 of that Code, a decision in a divorce case cannot be based exclusively on the admission of the claim or of certain facts by the defendant. Article 432 of the Code provides that oral testimonies of both parties to a divorce case are to be heard. Under Article 442 of the Code, if the defendant admits the divorce claim and the spouses have no minor children, the court may limit the taking of the evidence to hearing the parties.

Provisions of Article 56 (2) and (3) of the Family Code list situations where, despite the total breakdown of marriage, a court is not to grant divorce. A divorce is not to be granted if:

“(2) ... it would be detrimental to the well-being of common minor children or if, for other reasons, granting the divorce would be contrary to the principles of social coexistence ( zasady współżycia społecznego );

(3) ... it has been requested by the spouse who is at fault for the breakdown of the marriage, unless the other spouse has expressed his or her consent thereto, or the refusal of such consent by the other spouse is – in the circumstances at issue – contrary to the reasonable principles of social coexistence...”

Article 5 of the Civil Code reads:

“No one shall exercise any right of his in a manner contrary to its socio-economic purpose or to the principles of social co-existence ( zasady współżycia społecznego ). No act or omission [fulfilling this description] on the part of the holder of the right shall be deemed to be the exercise of the right and shall be protected [by law].”

The courts developed ample case-law addressing situations where the defendant spouse refuses to give his or her consent to divorce. In particular, they held that a defendant spouse has a right to do so. A presumption of good faith was therefore applicable to such a refusal, until it was demonstrated, with reference to specific circumstances of a case, that the refusal ran counter the reasonable principles of social co-existence (e.g. the Supreme Court, II CKN 956/99, 26 October 200 2; I CKN 305/01, 26 February 2000). In particular, the defendant spouse ’ s intention to frustrate the plaintiff ’ s plans to formalize his or her extramarital relationship should not, by itself, be regarded as being incompatible with these principles, if it has been shown that such refusal was inspired by a wish to maintain the marriage, consistent with ethical and social standards (e.g. the Supreme Court, CKN 305/01, 26 February 2002).

The courts are obliged to make an assessment of whether a refusal to consent to divorce does not amount to an abuse of right in the light of the spouses ’ situation and conditions caused by breakdown of their marriage; both of the innocent defendant and of the plaintiff. It is only in the light of these findings that a thorough assessment can be made whether a refusal is consonant with universally accepted morality rules and whether it is not detrimental to other interests worthy of legal protection (e.g. the Supreme Court, I CKN 871/00, 4 October 2001). The factors to be taken into account include, inter alia , the spouses ’ health, age, ability to earn a living, the length of the marriage (the Supreme Court, I CR 565/57, 22 May 1958; III CKN 573/98, 9 October 1998; the B iałystok Court of Appeal, I ACa 48/97, 6 March 1997). The fact that the plaintiff spouse has children born out of extramarital relationship is also of relevance (e.g. the Supreme Court, C 1115/52, 8 July 1952).

A refusal should be overridden if it was shown that the defendant is motivated merely by a wish to harass the plaintiff and to prevent him or her to formalize his or her new relationship (the Supreme Court, III CKN 665/00, 21 November 2002).

The defendant ’ s conduct after the breakdown of the marital bond has also to be taken into consideration; if it is spiteful and reprehensible, the refusal of consent can be overridden (the Su preme Court, II CKN 1270/00, 21 March 2003). Likewise, the causes of the breakdown and the circumstances which have arisen after that breakdown, including the existence of other relationships and extramarital children, have to be taken into consideration by the court (the Sup reme Court, III CKN 1032/99, 10 May 2000).

COMPLAINTS

The applicant complains that by refusing to grant a divorce the authorities forced him to remain married to a woman with whom he had no emotional ties and prevented him from marrying A.H. with whom he has been living for five years in a stable relationship. Moreover, the authorities disregarded the best interest of his daughter, M., whom he wanted to provide with a socially acceptable family structure.

The applicant further complains under Article 6 of the Convention that the divorce proceedings lasted too long and were unfair in that his petition for divorce was dismissed.

QUESTIONS to THE PART IES

1. Has there been a violation of the applicant ’ s right to respect for his family life, contrary to Article 8 of the Convention?

2. Has there been a violation of the applicant ’ s right to marry, contrary to Article12 of the Convention?