Adjudication of Fault in Divorce Proceedings under Polish Family Law
Introduction
Under the Polish legal system, in divorce proceedings, the court is obliged ex officio to adjudicate on the issue of which spouse is at fault for the breakdown of the marriage. This regulation, provided for in Article 57 § 1 of the Polish Family and Guardianship Code (Kodeks rodzinny i opiekuńczy – "KRO"), distinguishes three possible rulings: both spouses may be found jointly at fault, one spouse may be solely at fault, or neither spouse may be held responsible.
The Obligation to Adjudicate on Fault and Its Limitations
The legislator’s fundamental premise is the necessity for the court to determine the issue of fault in every divorce case. However, pursuant to Article 57 § 2, first sentence of the KRO, the court may refrain from adjudicating on fault only at the joint request of both parties. In such an event, the court is bound by the will of the parties and must omit the determination of fault, a position confirmed in the jurisprudence of the Supreme Court (Resolution of the Supreme Court of 25 October 2006, III CZP 87/06).
The parties may submit a joint request for no-fault adjudication either before the court of first instance or on appeal, until the closure of the appellate hearing. Importantly, this request may also be withdrawn during the proceedings.
The Concept of Fault in the Breakdown of Marriage
The Family and Guardianship Code does not define the notion of fault, which necessitates recourse to doctrine and case law. It is generally accepted that fault entails a willful act or omission by a spouse, breaching duties arising under legal provisions or social coexistence norms, which leads to the complete and permanent breakdown of the marital relationship.
In order to attribute fault, the following must be established concurrently:
• the complete and permanent breakdown of marital cohabitation,
• a culpable act or omission by the spouse,
• a causal link between the spouse’s behavior and the marital breakdown.
Fault may be intentional or unintentional. In the case of intentional fault, the spouse acts with the knowledge and intent to cause the breakdown. In contrast, unintentional fault occurs where the spouse could or should have foreseen the consequences of their conduct (see, e.g., Supreme Court judgment of 5 January 2001, V CKN 915/00; Court of Appeal in Kraków judgment of 26 January 2001, I ACa 10/00).
Elements of Fault
According to established case law (e.g., Supreme Court judgment of 13 November 1997, I CKN 306/97), fault comprises two elements:
• an objective element – the violation of a legal norm or a norm of social coexistence,
• a subjective element – the psychological attitude of the person towards their own conduct or omission.
The absence of either element precludes a finding of fault.
The Model of Marriage and Spouses’ Obligations
Pursuant to Articles 23 and 24 of the KRO, spouses have equal rights and obligations. They are obliged to cohabitate, provide mutual assistance, remain faithful, and cooperate for the welfare of the family they have established. Article 27 of the KRO further imposes the duty on spouses to contribute to the family’s needs according to their abilities, either financially or through personal efforts in raising children and managing the household.
Moreover, when a right to occupy a dwelling is held by one spouse, the other spouse is entitled to use the dwelling to meet the family’s needs (Article 28¹ KRO).
Temporal Scope of Conduct Relevant to Fault
When adjudicating on fault, the court must take into account only such conduct by the spouses that occurred before the complete and permanent breakdown of the marriage. Conduct occurring afterward is legally irrelevant, as there is no causal link between such conduct and the marital breakdown within the meaning of Article 361 § 1 of the Polish Civil Code (see, e.g., Court of Appeal in Katowice judgment of 12 March 2010, I ACa 35/10).
No Gradation of Fault
Polish family law does not recognize any gradation of fault. Thus, the extent to which each spouse contributed to the breakdown of the marriage is immaterial for the purpose of attributing fault. Even where one spouse’s culpable conduct is significantly more serious, if the other spouse’s behavior also contributed to the breakdown – even to a minor extent – both will be found jointly at fault (see, e.g., Supreme Court judgment of 28 September 2000, IV CKN 112/00).
Foreign Law and Adjudication of Fault
Article 57 § 1 of the KRO does not constitute a mandatory rule within the meaning of Article 8 § 1 of the Polish Private International Law Act. Consequently, in cases where divorce is governed by foreign law, Polish courts are not obliged to adjudicate on fault if such foreign law does not provide for this institution (Supreme Court decision of 23 March 2016, III CZP 112/15). The Polish model of divorce proceedings, which places significant emphasis on moral values underlying fault, need not be applied when the substantive basis of the divorce stems from a foreign legal order.
International Trends
It is worth noting that, in the comparative law context, the Polish model of mandatory fault adjudication in divorce remains exceptional. In most contemporary legal systems, the assessment of fault is either entirely excluded from divorce proceedings or limited to narrow circumstances, such as expediting the divorce process. Systems requiring fault-based determinations still exist but constitute a distinct minority within the European legal landscape.
Conclusion
Adjudicating on fault in divorce proceedings under Polish law remains obligatory unless both parties jointly request otherwise. Attributing fault requires establishing both an objective breach of spousal duties and a subjective culpable mental attitude, alongside a causal link to the marital breakdown. The Polish approach, emphasizing moral assessment, distinguishes itself from the prevailing international trend towards a neutral, no-fault divorce model.