Separation in the Polish legal system is still an unpopular institution. Meanwhile, it has legal effects similar to divorce, but does not dissolve the marriage.
Regulations concerning separation
In accordance with article 611 § 1 of the Family and Guardianship Code if there was a complete break of marriage ties, each spouse may demand that a court decide on separation. It should be noted that legal prerequisites for divorce pronouncement is permanent and complete break of marriage ties. More on grounds of divorce can be read HERE.
The legal effects of separation
In accordance with article 614 § 1 of the Family and Guardianship Code the decision of separation has the same effects as a dissolution of marriage through divorce, unless the law provides otherwise. Turning to specific provisions should be noted:
- establishing the division of marital property between spouses in the case where there was statutory or contractual matrimonial co-ownership,
- exclusion of legal presumption for the paternity of the mother’s husband if the child was born after 300 days since the separation has been adjudicated,
- possiblity to claim maintenance under the same conditions as for divorce (more about that HERE) – this obligation does not expire with the end of five years as of divorce has been granted,
- termination of conjugal obligations – the obligations of matrimonial cohabitation and fidelity are ceased,
- the responsibility to decide jointly on important matters of the family is ceased,
- termination of the duty to provide for the family, which was started by the spouses,
- derogation of the rule of article 6801 of the Civil Code according to which spouses are tenants of the premises, regardless of existing property relations between them, if the property is used to meet the needs of the family and occurred during the marriage; this provision will not apply if the lease was concluded after the separation has been adjudicated,
- excluding provisions for appointment to inherit under the law if the spouses were legally separated, and also spouse is excluded from inheritance if the testator has filed for a legal separation from the guilt of the other spouse, and the suit was justified.
Although the separation raises similar effects to divorce, bigamy ban is still in force – so a person that remains in legal separation cannot re-marry, and the obligation of mutual support between spouses continues.
In cases where separation is adjudicated the court, as in divorce cases, decides on the guilt of the breakdown of marriage, custody, right to remain in the apartment occupied by the parties, and possibly the division of joint property.
The court adjudicates the annulment of separation upon consistent request of spouses, upon its annulment all its legal consequences cease.
Procedure
Separation may be adjudicated either at the demand of one of the spouses (then pending in the trial proceedings) as well as at the joint request of both of them (then pending in non-litigious proceedings). If the spouses have no minor children, the court may limit the procedure to a joint statement of the parties.