Judicial decisions concerning the parental authority in divorce cases. Is divorce a problem today?

 

In Poland every year the ratio of marriages to divorces is 3 to 1, so it means that statistically over 30% marriages end in divorce. Divorces are more in common today, something which is confirmed in polish court statistics. However, let's put the question: Can divorce in general be considered as a problem? In this paper we would like to analyze judicial decisions about divorces concerning parental authority. We will also analyze current and future regulations related to divorce.

 

Characteristics of the problem of divorce

This phenomenon was perfectly characterized in American society by Barbara Defoe Whitehead in her book "The Divorce Culture": Divorce is now part of everyday American life. It is embedded in our laws and institutions, our manners, our movies and television shows, our novels and children’s storybooks, and our closest and most important relationships. Indeed, divorce has become so pervasive that many people naturally assume it has seeped into the social and cultural mainstream over a long period of time.[1]

 

As can be seen, divorce has become something normal thinking of man in the western civilization. We can say that divorce is increasingly becoming rather the only solution to the problem between people in marriage. Especially in the so-called velvet divorce when spouses decide to sever in accordance. In situations when the institution of marriage has been reduced only to the bilateral agreement of two spouses we should not perceive it as a problem. Marriage understood only on a background of civil law and principle of autonomy of contracts, can lead to that way of thinking. The purpose of this paper is to show that it is completely different. We want to present that divorce is a problem, a serious problem, for both children and spouses.

 

This issue is completely different from the child’s point of view. According to studies, divorce is the second most stressful event in human life according to the scale of Thomas Holmes and Richard Rahe, after the death of a spouse. It is a crucial event in the life of a child, its intensity depends of course on the level of intellectual development and on the child's age and sex. Psychologists underline that in children at kindergarten age a regression in development can be observed as a reaction to the separation of parents. Such children can have problems with basic activities such as dressing or using the toilet, they feel the fear of a temporary separation with one of the parents.[2]

 

It is believed that children age 9-12 much better understand changes in their environment, however, they are also not able to cope with the emotions. Very often they blame for the breakdown of the family the parent with whom they live. Frequent is also the phenomenon of escaping into fantasies, dreams and imaginary worlds to forget about current problems.[3] Children growing up (12- 18 years old) often isolate themselves from the external world and fall into depression. Divorce of parents is indicated as a frequent cause of suicides. They also have problems in closer relationships with other people. Studies shows that in situations of close contact the fear of losing a loved one often occurs to them and also fears about a future break-up of a potential relationship. Regardless of age and sex, the child perceives the new changes negatively, intensifying the lack of the closeness to one of the parents. Common is also the lack of motivation to learn.[4]

 

Examples of negative effects could be multiplied. We should not have doubts about the dangers of divorce in the case of having minor children. It is obvious that it is necessary to protect the institution of the family and take into account the interest of the child. According to the studies of the Polish Institute of Justice, the majority of judicial decisions take into account the interests of the child but it can sometimes be understood in a specific way. The following case will serve as an example.

 

Case no. 1

The lawsuit filed by the wife shows that after 2 years of marriage spouses decided in accordance to leave Poland to earn money in the USA to build their new house. They left their one year-old daughter to the care of the parents of the wife. Spouses worked abroad for 3 years. After returning to Poland they started to build the house. After a few months the financial means for its termination ended. The spouses decided that the wife will work in Belgium to earn more money. The beginning of the marriage breakdown is dated from this moment. According to the plaintiff’s substantiation the cause of this breakdown was not living in separation such a long time, but rather financial reasons. Wife claims that after leaving her husband did not take a job and did not build the house personally.

 

The plaintiff  suffered the cost of house building in 2001-2008. She also accused her husband profligacy, mismanagement, laziness and lack of initiative in conducting common affairs. As the plaintiff claimed, disagreements on this background have led to the removal of all bonds in marriage. This situation has been stable for several years and is not prognosed any change for the better. Due to the lack of opportunities to maintain marriage is inexpedient to direct the parties to mediation. Husband accepted all wife’s requests, but claimed that was departure of his wife abroad what caused the marriage breakdown. Husband claimed the following: I accept the decision of my wife because she is determined to divorce, and I cannot change this fact. Interests of our daughter will not be affected. As parents we will take care of her. I have no educational problems with my child. In this case the court has ruled divorce taking into account all requests mentioned by parties and refrained from regulating contact with their 16 years old daughter.[5]

 

Questions remain in particular whether breakdown of marriage was completed. Evidentiary proceedings was insufficient. The court reduced the proceedings to testimonies of parents and one witness. We need to consider whether the interests of the child was defended duly. Complementarity of a family does not allow to treat interests of a child and parents separately. The family, because of  its internal relations, has unfied nature. We cannot thinking about interests of a child in isolation of a family. In this case we can clearly see that this family was not in completely breakdown. This relation between spouses could be rebuild by some therapy, mediation. Possibility to get a divorce in easy way is really danger occurence for institution of a family. In our opinion courts should not decide about divorce so cursorily, because this decision is often irreversible and has serious results for family.

 

In 2012 were noticed 67,000 judgments taking into account the action for divorce, and the judgments dismissing such an action only about 700, which represents 1.32% of all substantive.[6] These data indicate that the divorce is not difficult to obtain. In Poland, the problem with such a cursory ruling is connected with the length of adjudication by the courts. District courts,  may adjudicate in such a short time due to catching statistics. Among the examined issues the shortest court hearing lasted 4 minutes. Next issue is number of appeals to next instance. Courts accepts terms of parties willingly because it means often quick end of the case.

 

To continue reading, download the PDF.

 


[1] Barbara Defoe Whitehead; The Divorce Culture; New York 1997, p. 3

[2] Dembo M.H. Stosowana psychologia wychowawcza Warszawa 1997 p.404

[3] Article of Anna Baranowska Dzieci z rodzin rozwiedzionych psychologia.net.pl 2014

[4] Ibidem

[5] Elżbieta Holewińska- Łapińska Pozostawienie władzy rodzicielskiej nad wspólnym małoletnimi dziećmiobojgu rozwiedzionym rodzicom oraz rozstrzygnięcia o kontaktach z dziećmi w wyrokach rozwodowych; Istytut Wymiaru Sprawiedliwości; Warszawa 2012; p. 60-63

[6] Maciej Domański Oddalenie powództwa o rzwód w sprawach, wktórych małżonkowie mieli wspólne małoletnie dzieci…, p. 177-178