Communicated on 3 June 2014

FOURTH SECTION

Application no . 8951/11 Piotr Kazimierz GAJEWSKI against Poland lodged on 2 February 2011

STATEMENT OF FACTS

The applicant, Mr Piotr Gajewski , is a P olish national, who was born in 19 65 and lives in Ostróda .

A. The circumstances of the case

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

In 1989 the applicant married A. They have three children born in 1990, 1995 and 1996.

In November 2008 the applicant moved out of their apartment.

On 23 April 2009 A. filed an application for maintenance for their children.

On 10 July 2009 the Ostróda District Court ordered the applicant to pay monthly maintenance for his three children in a total amount of PLN 750.

On 24 August 2009 the applicant filed a petition for divorce. He submitted that he had been in a relationship with another woman and would like to formalise it and that his marriage to A. had become merely a formal relationship.

In her reply to the petition, A. requested the court to dismiss it. She stated that she refused to give her consent, having regard to the fact that the applicant who had moved out and was living with another woman was at fault for the breakdown of their marriage. She argued that the applicant had abandoned her and their three children without a failure of the marriage having occurred prior to it. She hoped that it would be possible to restore the marital bonds and referred to the length of the marriage and to the best interest of their children. She emphasized that the fact that the applicant had abandoned the family had seriously deteriorated its financial situation, in particular as he tried to evade his obligations to pay maintenance for the children, confirmed by the judicial decision.

By a judgment of 23 March 2010 the Elblag Regional Court refused to grant the applicant a divorce. It established, with reference to the evidence, that the marital relationship had been a very good one. The parties had lived together until 2008 and raised their children. The situation had deteriorated only after the applicant had begu n in September 2008 a relationship with J.Z., his supervisor at work. In November 2008 he had moved out of the matrimonial home. At the request of his wife and children who had been badly traumatised by the events he had later attempted to reconcile with A . and moved in again for a week. However, he had subsequently decided to continue his relationship with J.Z. Since November 2008 he had been living with J.Z., her three minor children and her grandson.

The court found that A . was a very good mother and partner and that she was not at fault for the difficulties in the marriage. In addition, she still loved her husband and was ready to forgive him his affair with J.Z. The court stressed that the applicant was the only person respons ible for the situation which he had created as a result of his extra-marital relationship.

The court referred to the fact that the applicant was at fault for the breakdown of the marriage and the applicant ’ s wife had not agreed to a divorce. Her refusal could not, in the circumstances of the case, be regarded as illegitimate or contrary to principles of social co-existence. It further referred to the fact that two of their children were still minors and held that a divorce would be against their best interest. For these reasons the applicant ’ s petition was dismissed.

The applicant appealed , challenging the findings of fact made by the first ‑ instance court . He argued, inter alia , that his relationship with his wife had been gradually deteriorating since 2005. The court had erred in finding that the applicant was at fault for the breakdown of the marriage and, consequently, it also erred in law in holding that his wife ’ s refusal to divorce should be legitimately upheld. The refusal to grant a divorce to him was harmful to his new relationship, devoid of any practical purpose and incompatible with the reasonable principles of social co ‑ existence.

On 7 September 2010 the GdaÅ„sk Court of Appeal upheld the first ‑ instance judgment. It upheld the findings of the lower court in their entirety. The court considered that the applicant ’ s wife was not at fault for what had happened. It shared the view of the lower court that her refusal to give consent was, in the circumstances of the case and regard being had to the applicant being exclusively at fault, compatible with the rea sonable principles of social co ‑ existence.

The judgment is final; a cassation appeal 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 under Article 6 of the Convention about the outcome of the divorce proceedings.

The applicant further 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 an d prevented him from formalising his new relationship.

QUESTIONS to THE PARTIES

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?