Information Note on the Court’s case-law 203

January 2017

Babiarz v. Poland - 1955/10

Judgment 10.1.2017 [Section IV]

Article 12

Marry

Dismissal of divorce petition of spouse who wished to marry new partner: no violation

Article 8

Positive obligations

Article 8-1

Respect for family life

Respect for private life

Dismissal of divorce petition of spouse who wished to marry new partner: no vi olation

Facts – In 2005 the applicant left his wife of seven years to move in with another woman with whom he later had a child. He subsequently sought a divorce but his wife refused and his petition was dismissed on the grounds that, although the marriage had irretrie vably broken down, domestic law did not permit a divorce to be granted to the party at fault in the absence of consent (provided it was not unreasonably withheld)* from the innocent party.

In the Convention proceedings the applicant complained under Artic les 8 and 12 of the Convention that by refusing to grant him a divorce the authorities had prevented him from marrying the woman with whom he was now living.

Law – Articles 8 and 12: The Court reiterated that neither Article 12 nor Article 8 of the Convent ion could be interpreted as conferring on individuals a right to divorce. However, if national legislation allowed divorce, Article 12 secured for divorced persons the right to remarry.

The Court had not ruled out that an issue could arise under Article 12 where judicial divorce proceedings were unreasonably lengthy (see Aresti Charalambous v. Cyprus , 43151/04 , 19 July 2007) or where, despite an irretrievable breakdown of marital life, domestic law regarded the lack of consent of an innocent party as an insurmountable obstacle to granting a divorce to a guilty party (see Ivanov and Petrova v. Bulgaria , 15001/04 , 14 June 2011). However, neither of those situations obtained in the applicant’s case. The circumstances of his case also differed from those in Johnston and Others v. Ireland ( 9697/82 , 18 December 1986), as it did not concern a blanket restriction or blanket prohibition imposed by the domestic law, but the dismissal of his divorce action by the domestic courts.

Polish divorce law provided d etailed substantive and procedural rules which could lead to a divorce being granted. The domestic courts had examined the facts of the applicant’s case in detail and in the proper context of domestic law: comprehensive evidence had been gathered, the appl icant had had an opportunity to present his position to the court and question witnesses, and the first-instance judgment had been subject to a review by the appellate court and had contained detailed reasoning.

The Court was well aware that the applicant had a daughter with his new partner, that he was apparently in a stable relationship and that the domestic courts had acknowledged a complete and irretrievable breakdown of his marriage. However, this did not mean that a request for a divorce had to be all owed regardless of the procedural and substantive rules of domestic divorce law by a person simply deciding to leave his or her spouse and have a child with a new partner. While under Article 8, de facto families and relationships were protected, such prot ection did not mean that they had to be accorded particular legal recognition. Nor had it been argued or shown that failure to obtain a divorce and the legal fiction of his continuing marriage had prevented the applicant from recognising his paternity in r espect of the child he had with his new partner. Lastly, it had not been argued that under Polish law a refusal to divorce created res iudicata preventing the applicant from submitting a fresh petition for divorce to the courts at a later stage.

In the Cou rt’s view, if the provisions of the Convention could not be interpreted as guaranteeing a possibility, under domestic law, of obtaining divorce, they could not, a fortiori , be interpreted as guaranteeing a favourable outcome in divorce proceedings institut ed under domestic law.

In sum, there had been no violation of the applicant’s right to marry and, in the circumstances of the case, the positive obligations arising under Article 8 had not imposed on the Polish authorities a duty to accept the applicant’s petition for divorce. There had thus been no violation of either Article 8 or 12, assuming the latter provision to have been applicable.

Conclusions : no violation of Article 8 (five votes to two); no violation of Article 12 (five votes to two).

* Article 5 of the Polish Civil Code refers to the refusal of the innocent party not being “contrary to the reasonable principles of social coexistence” ( zasady współżycia społecznego ).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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