10 January 2017
Application to the ECHR concerning whether Article 8 and Article 12 were breached by the Polish court’s refusal to grant a divorce
Facts:
- The husband, a Polish national, conceived a child with another woman. He filed a petition for divorce from the wife in Poland. When the wife would not consent, he requested a divorce based on her behaviour. The court refused to grant the divorce as it held that the husband was the only person responsible for the breakdown of his marriage, due to his infidelity.
- The court could not grant a divorce if it was requested by the party whose fault it was that marriage had broken down if the other party refused to consent and that refusal was not “contrary to the reasonable principles of social coexistence”. As this refusal was in good faith and born out of a wish to reconcile, it was not overridden.
- The husband complained under Articles 8 and 12 of the Convention that by refusing to grant him a divorce, the authorities had prevented him from remarrying.
Held:
- Article 8’s purpose is to protect the individual against arbitrary interference by the public authorities. It compels the State to abstain from such interference, but also imposes positive obligations inherent in respect for private or family life.
- In the area of framing their divorce laws and implementing them in concrete cases, the Contracting parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention and to reconcile the competing interests at stake.
- Article 12 secures the fundamental right to marry. The exercise of this right to marry gives rise to social, personal and legal consequences. Any limitations introduced must not restrict the right to marry or impair the essence of the right to marry.
- Article 8 and 12 do not secure a right to divorce. However, if national legislation allows divorce, Article 12 secures a right to remarry.
- Polish law provides rules which can lead to a divorce being granted. There are safeguards to protect parties from bad-faith on the part of the other.
- To allow this appeal would mean that a request for a divorce would have to be allowed regardless of the procedural and substantive rules of domestic divorce law, by a person simply leaving his spouse and having a child with a new partner.
- While under Article 8, de facto families are protected, this doesn’t mean that particular legal recognition has to be accorded to them.
- Therefore, there is no violation of the husband’s right to marry, and any positive obligations arising under Article 8 do not impose a duty to accept the husband’s petition for divorce. There is no violation of Article 8 or 12, assuming 12 is applicable.