Communicated on 3 June 2014

FOURTH SECTION

Application no . 8923/12 Andrzej PIOTROWSKI against Poland lodged on 25 January 2012

STATEMENT OF FACTS

The applicant, Mr Andrzej Piotrowski , is a Polish national, who was born in 1952 and lives in Łódź . He is represented before the Court by Ms M. Wentlandt-Walkiewicz , a lawyer practising in Łódź .

A. The circumstances of the case

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

On 12 January 2010 the applicant filed a petition for divorce. He asked the court to declare that both parties were at fault for the breakdown of marriage.

On 16 February 2011 the Łódź Regional Court refused to grant the applicant a divorce.

The court established that the applicant and D. had married in 1977 . They did not have children. In 2004 the applicant and D. had married in church. Subsequently, the applicant met another woman . In May 2009 he informed D. that he had fallen in love with someone else.

The court held , having regard to the evidence gathered in the proceedings, that the breakdown of the marriage was total and permanent. The economic, emotional and sexual relations between the spouses had come to end, essentially because of the applicant ’ s relationship with another woman. It was of the view that there were no prospects of the applicant returning to his wife.

D. was a very good partner to him and not at fault for the breakdown of the marriage. In addition, she still loved her husband and was ready to forgive him for his affair. The court stressed that the applicant was the only person responsible for the marital breakdown. He had failed to respect his obligation of marital fidelity and had clearly stated during the proceedings that he would continue his relationship with another woman. For these reasons the court considered that the wife ’ s refusal to give consent had to be considered as legitimate and being compatible with the principles of social co ‑ existence within the meaning of Article 5 of the Civil Code. Hence, a divorce was not permitted in the present case.

The applicant appealed, challenging the findings of fact made by the first-instance court. He argued that his relationship with his wife had never been good. The fact that he had entered into a new relationship had been caused precisely by the poor quality of their marriage. Hence, the court had been wrong in finding that it was his involvement with another woman which had caused the marital problems. He considered that his relationship with that woman was viable as they had been living together for several months over the previous two years.

On 12 July 2011 the Łódź Court of Appeal upheld the first-instance judgment. The court considered that the applicant ’ s wife was not at fault for the breakdown of the marriage , that her refusal to give consent therefore had to be regarded as legitimate and that the judgment of the first ‑ instance court was lawful .

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, 12 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 Octo ber 2002; 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; t he Białystok 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 relev ance (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 relations hip (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).

COMPLAINT

The applicant complains that by refusing to grant him a divorce the authorities forced him to remain married to D . and prevented him from forming a new family.

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?