FOURTH SECTION
 
 
 
 
 
 
CASE OF BABIARZ v. POLAND
 
(Application no. 1955/10)
 
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
10 January 2017
 
 
 
FINAL
 
10/04/2017
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Babiarz v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 András Sajó, President,
 Vincent A. De Gaetano,
 Paulo Pinto de Albuquerque,
 Krzysztof Wojtyczek,
 Iulia Motoc,
 Gabriele Kucsko-Stadlmayer,
 Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 22 November 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 1955/10) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Artur Babiarz (“the applicant”), on 15 December 2009. 2. The applicant was represented by Mr W. Osak, a lawyer practising in Lublin. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs. 3. The applicant alleged that his right to respect for family life and his right to marry and found a family had been breached. 4. On 3 June 2014 the application was communicated to the Government. The applicant and the Government each filed written observations on the admissibility and merits. In addition, third‑party comments were received from the European Centre for Justice and Human Rights (Centre européen pour la justice et les droits de l’homme), which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court). THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1971 and lives in Dębowa Kłoda. 6. In 1997 the applicant married R. In 2004 R. underwent infertility treatment so she could conceive a child with him. 7. In autumn 2004 the applicant met A.H. In January 2005 he moved out of the flat he had lived in with R. 8. On 31 October 2005 A.H. gave birth to their daughter, M. 9. On 25 September 2006 the applicant filed a petition for divorce. At first he requested a no-fault divorce. In his petition the applicant referred to various marital misunderstandings and quarrels for which he blamed the respondent. He admitted that he had moved out of the matrimonial home, but did not mention his involvement with a new partner. 10. At a hearing held on 15 November 2006 the applicant refused to undergo the mediation process provided for by divorce law. R. did not agree to a divorce, declared that she loved the applicant and asked the court to dismiss the divorce petition. 11. Subsequently, the applicant requested a divorce on fault‑based grounds. 12. During the proceedings thirteen witnesses were heard. Most of them were of the opinion that the marriage seemed happy until autumn 2004. Only the applicant’s mother, his two colleagues and his cousin recalled minor arguments between the spouses. 13. During the final hearing on 9 February 2009 the respondent reiterated her refusal to divorce. 14. On 17 February 2009 the Lublin Regional Court refused to grant the divorce to the applicant. The court held that he was the only person responsible for the breakdown of his marriage because he had failed to respect the obligation of fidelity. The court did not find it credible that problems had already begun within the first year of the marriage. It observed that until 2004 the applicant had not wanted children. In that year he had changed his mind. For that reason R. had undergone surgery, the operation having taken place in August 2004. 15. The marital situation had subsequently changed when the applicant had met A.H. He had no longer wished to have a child with his wife. The court noted contradictions between the testimony given by the applicant, who had referred to the alleged serious problems in marital life prior to 2004 on the one hand, and the decision to treat R.’s infertility in summer 2004 on the other. The respondent had been shocked by the applicant’s unfaithfulness and had been treated for depression since autumn 2004. 16. The court acknowledged that there had indeed been “a complete and irretrievable marriage breakdown” within the meaning of Article 56 § 1 of the Family and Guardianship Code. Reconciliation was unlikely as the applicant had consistently rejected all attempts made by R. to reconcile their differences. Moreover, he had been in a relationship with A.H. for almost four years and had a child with her. 17. The court emphasised that under Article 56 § 3 of the Family and Guardianship Code, a divorce could not be granted if it had been requested by the party whose fault it was that the marriage had broken down, if the other party refused to consent and the refusal of the innocent party was not “contrary to the reasonable principles of social coexistence” (zasady współżycia społecznego) within the meaning of Article 5 of the Civil Code. 18. The court considered that R.’s refusal to divorce should be presumed to be compatible with those universally accepted principles. It referred to the case-law of the Supreme Court to the effect that a refusal of consent to a divorce was to be presumed to be compliant with those principles unless there were case-specific indications to the contrary. There was no indication that when refusing to give her consent R. had acted out of hatred, was motivated by vengeance, or simply wanted to vex the applicant. The court emphasised that she had repeatedly stated during the proceedings that she was ready to reconcile with him despite the fact that he had a child with another woman. 19. The court stressed that the duration of the applicant’s new relationship could not by itself be considered to be a sufficient reason for granting the divorce. 20. The applicant appealed against the judgment. He argued, inter alia, that the court had erred in holding that a spouse’s refusal to consent to a divorce could be disregarded only when it was of an abusive nature or was dictated by hostility towards the spouse seeking the divorce. The court should have examined the negative social consequences caused by continuing the formal existence of failed marriages. In his case, it had failed to do so. 21. On 16 June 2009 the Lublin Court of Appeal dismissed the applicant’s appeal. 22. The applicant did not request to be served with the written grounds for the appellate judgment. The grounds were therefore not prepared. 23. The judgment was final, a cassation appeal against a divorce judgment not being available in law. II. RELEVANT DOMESTIC LAW AND PRACTICE
24. Pursuant to Article 56 § 1 of the Family and Guardianship Code (Kodeks rodzinny i opiekuńczy), either spouse may file a petition for divorce if there has been a complete and irretrievable marriage breakdown (zupełny i trwały rozkład pożycia). For the purposes of establishing whether a complete breakdown has occurred, the established judicial practice is to examine ex officio whether the financial, emotional and sexual ties between the spouses have ended (Supreme Court decision no. III CKN 386/98 of 22 October 1999, and Katowice Court of Appeal decision no. I ACa 51/10 of 12 March 2010). The courts establish it applying the general procedural rules governing the taking of evidence, in addition to certain specific rules provided for by the Code of Civil Procedure for the purposes of divorce proceedings. 25. In particular, under Article 431 of the Code of Civil Procedure, a decision in a divorce case cannot be based exclusively on the admission of the claim or of certain facts by the respondent. Article 432 of the Code provides that both parties to a divorce case are to be heard in person. Under Article 442, if the respondent admits the divorce claim and the spouses have no minor children, the court may limit the taking of evidence to hearing the parties. 26. Under Article 56 §§ 2 and 3 of the Family and Guardianship Code, a divorce may not be granted even where there has been a complete breakdown of the marriage, if:
“(2) ... it would be detrimental to the well-being of [the] minor children [of the marriage] or if, for other reasons, granting the divorce would be contrary to the principles of social coexistence (zasady współżycia społecznego);
(3) ... it has been requested by the spouse who is at fault for the breakdown of the marriage, unless the other spouse has expressed his or her consent thereto, or the refusal of such consent by the other spouse is – in the circumstances at issue – contrary to the reasonable principles of social coexistence...”
27. Article 5 of the Civil Code reads:
“No one shall exercise any right of his in a manner contrary to its socio-economic purpose or to the principles of social coexistence (zasady współżycia społecznego). An act or omission [fulfilling this description] on the part of the holder of the right shall not be deemed to be the exercise of the right and shall be protected [by law].”
28. The courts have developed ample case-law addressing situations where a respondent spouse refuses to consent to a divorce. In particular, they have held that an innocent respondent has a right to refuse to consent. A presumption of good faith was therefore applicable to such a refusal, until it was demonstrated, with reference to the specific circumstances of a case, that the refusal ran counter to the principles of social coexistence within the meaning of Article 5 of the Civil Code (Supreme Court decision nos. II CKN 956/99 of 26 October 2002 and I CKN 305/01 of 26 February 2000). In particular, the respondent spouse’s intention to frustrate the petitioner’s plans to formalise his or her extramarital relationship should not, by itself, be regarded as being incompatible with these principles, if it has been shown that the refusal was inspired by a wish to continue the marriage, consistent with ethical and social standards (Supreme Court decision no. CKN 305/01 of 26 February 2002). 29. The courts are obliged to assess whether or not a refusal to consent to a divorce amounts to an abuse of rights in the light of the spouses’ situation and conditions caused by the breakdown of their marriage, both of the innocent respondent and the petitioner. It is only in the light of these findings that a thorough assessment can be made whether a refusal is consonant with universally accepted morality rules (reguły moralności) and whether or not it is detrimental to other interests worthy of legal protection (Supreme Court decision no. I CKN 871/00 of 4 October 2001). The factors to be taken into account include, inter alia, the spouses’ health, age and ability to earn a living and the length of the marriage (Supreme Court decision nos. I CR 565/57 of 22 May 1958 and III CKN 573/98 of 9 October 1998, and Białystok Court of Appeal decision no. I ACa 48/97 of 6 March 1997). The fact that the petitioner has children born from an extramarital relationship is also of relevance (Supreme Court decision no. C 1115/52 of 8 July 1952). 30. The refusal of an innocent spouse should be overridden if it is shown that the respondent is motivated merely by a wish to harass the petitioner and to prevent him or her from formalising his or her new relationship (Supreme Court decision no. III CKN 665/00 of 21 November 2002). 31. The respondent’s conduct after the marriage breakdown also has to be taken into consideration; if it is spiteful and reprehensible, the refusal of consent can be overridden (Supreme Court decision no. II CKN 1270/00 of 21 March 2003). Likewise, the causes of the breakdown and the circumstances which have arisen thereafter, including the existence of other relationships and extramarital children, have to be taken into consideration by the court (Supreme Court decision no. III CKN 1032/99 of 10 May 2000). THE LAW
ALLEGED VIOLATION OF ARTICLES 8 AND 12 OF THE CONVENTION
32. The applicant complained under Articles 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 had been living. 33. The relevant provisions read as follows:
Article 8
“1. Everyone has the right to respect for his private and family life ... . 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 12
“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”
A. Admissibility
34. The Government argued that the applicant’s complaint fell outside the scope of Article 12 and was incompatible ratione materiae with the provisions of the Convention. The applicant disagreed. 35. The Court finds that the Government’s objection is closely linked to the substance of the applicant’s complaints and should be joined to the merits of the case. 36. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. The parties’ submissions
(a)  The applicant
37. The applicant argued that his right to marry and found a family had been breached by the court’s refusal to grant him a divorce. The public authority had, as a result, interfered with his plans related to both his private and family life and those of his daughter and partner. (b)  The Government
38. The Government were of the view that there had been no breach of the State’s obligations under Article 8. The authorities had not interfered with the applicant’s desire to marry, with his married life for seven years or, last but not least, with his decision to move out of the matrimonial home and start an affair with another woman. The sole fact that formalised judicial divorce proceedings existed under national law and that certain conditions had to be met for a divorce to be granted did not per se contradict Article 8 of the Convention. Such a view would run counter to the very foundations of the European concept of family law, since such matters were regulated in every legal system of the Contracting Parties to the Convention. 39. It was further argued that the rights guaranteed under Article 8 of the Convention were not absolute in nature and interference with these rights was permissible under certain conditions. In the present case, interference was prescribed by Article 56 §§ 2 and 3 of the Family and Guardianship Code. This interference pursued at least two legitimate aims: the protection of the rights and freedoms of others, namely the interests and well‑being of the applicant’s wife, and the protection of morals. They counteracted the menace of arbitrary and unilateral terminations of marriages in a society adhering to the principle of monogamy (see Johnston and Others v. Ireland, 18 December 1986, § 52, Series A no. 112). 40. Nevertheless, the weight of these limitations was reduced by the possibility of obtaining a divorce under certain conditions defined by law. The Government averred that the Convention neither imposed a positive obligation on the Contracting States to permit a divorce, nor positive duties on the State to refrain from introducing substantive or procedural conditions on which marriages could be legally dissolved. 41. The Government noted that the case had been examined by independent and impartial domestic courts. The first-instance judgment had been subject to a review by the appellate court. The reasoning of the judgment of the Lublin Regional Court contained a reasonable and convincing explanation of whose interests had been taken into account, how the evidence had been evaluated and what the grounds had been for their decision to dismiss the applicant’s petition for divorce. The respondent had exercised her right to oppose the applicant’s petition for divorce. The courts had examined the applicant’s petition with reference to interests both private and public in nature, namely those of the applicant’s wife and the need to counteract the menace of arbitrary and unilateral terminations of marriages. In the circumstances of the case, the applicant’s request to be granted a divorce on fault-based grounds could not be recognised as justified under the applicable provisions of family law. 42. The Government further argued that the case should be distinguished from the case of Johnston v. Ireland, in that the dismissal of the divorce petition had not affected the legal situation of the child conceived by the applicant and his new partner. Under the provisions of Article 72 § 1 of the Family and Guardianship Code, paternity of a child born out of wedlock could be established by the recognition of paternity or by the court. The legal situation of children born out of wedlock under Polish law was absolutely equal to the situation of the children born within a marriage. 43. The Government further argued that the applicant apparently had not been interested in familiarising himself with the written reasoning of the appellate court since he had not applied for such grounds to be prepared and had not been entitled to have them prepared ex officio. Nevertheless, he had decided to submit his case to an international court. It was the applicant’s conduct which had made it impossible for the Court to be made aware of the grounds on which the appellate court had decided to uphold the first-instance judgment. 44. The Government concluded by stating that there had been no violation of the Convention in the present case. (c)  The third party intervener
45. The European Centre for Justice and Human Rights submitted that it was important to society that marriages remained stable and that they could fulfil their social role, in particular in the context of raising children. Family was universally recognised as a fundamental element of society and as such should be protected by law. The right to marry originated essentially in the individuals’ wish to found a family and should, as such, be protected. European law did not recognise the right to divorce. The legal prohibition of divorce was not contrary to either Article 8 or Article 12 of the Convention. In any event, there was no European consensus as to the possibility of obtaining a divorce when an innocent party opposed it, even in situations where there had been a definitive breakdown of marital relations. An approach which would confer on a party at fault a right to divorce despite the opposition of an innocent party would be tantamount to upholding a purely individualistic concept of liberty, understood essentially as having no societal and family obligations. 2. The Court’s assessment
46. The Court observes that the applicant’s complaint about the alleged breach of his rights guaranteed by Articles 8 and 12 of the Convention is based on the same fact, namely the courts’ refusal to grant him a divorce (see Ivanov and Petrova v. Bulgaria, no. 15001/04, §§ 55 et seq., 14 June 2011). 47. In so far as the applicant relies on Article 8 of the Convention, the Court reiterates that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see Mikulić v. Croatia, no. 53176/99, § 57, ECHR 2002-I). However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests (see S.H. and Others v. Austria [GC], no. 57813/00, § 87, ECHR 2011-V); and in both contexts the State enjoys a certain margin of appreciation (see, among other authorities, Mizzi v. Malta, no. 26111/02, § 106, ECHR 2006‑I (extracts) and Jeunesse v. the Netherlands [GC], no. 12738/10, § 106, ECHR 2014). 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 personal interests at stake (compare and contrast, Johnston and Others, cited above, § 55). 48. As regards Article 12 of the Convention, the Court reiterates in this connection that this Article secures the fundamental right of a man and woman to marry and found a family. The exercise of the right to marry gives rise to social, personal and legal consequences. It is subject to the laws of the Contracting States but the limitations thereby introduced must not restrict or reduce the right to marry in such a way or to such an extent that the very essence of the right to marry is impaired (see Rees v. United Kingdom, 17 October 1986, § 50, Series A no. 106; F. v. Switzerland, 18 December 1987, § 32, Series A no. 128; and B. and L. v. United Kingdom, no. 36536/02, § 34, 13 September 2005). 49. The Court has already held that neither Article 12 nor 8 of the Convention can be interpreted as conferring on individuals a right to divorce (see Johnston and Others, cited above, § 57). Moreover, the travaux préparatoires of the Convention indicate clearly that it was an intention of the Contracting Parties to expressly exclude such right from the scope of the Convention (ibid., § 52). Nevertheless, the Court has reiterated on many occasions that the Convention is a living instrument to be interpreted in the light of present-day conditions (see, among many other authorities, Marckx v. Belgium, 13 June 1979, § 41, Series A no. 31, and Airey v. Ireland, 9 October 1979, § 26, Series A no. 32). It has also held that, if national legislation allows divorce, which is not a requirement of the Convention, Article 12 secures for divorced persons the right to remarry (see F. v. Switzerland, 18 December 1987, § 38, Series A no. 128). 50. Thus, the Court has not ruled out that the unreasonable length of judicial divorce proceedings could raise an issue under Article 12 (see Aresti Charalambous v. Cyprus, no. 43151/04, § 56, 19 July 2007). The Court did not rule out that a similar conclusion could be reached in cases 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, referred to above, § 61). However, that type of situation does not obtain in the present case, which concerns neither a complaint about the excessive length of divorce proceedings nor insurmountable legal impediments on the possibility to remarry after divorce. 51. The circumstances of the present case also differ from those examined in the context of the case of Johnston and Others (cited above), as it concerns neither a blanket restriction nor a blanket prohibition imposed by the domestic law. The applicant’s argument is not based on an absolute impossibility to obtain a divorce under family law in Poland but on a dismissal of his divorce action by the domestic courts. 52. The Court notes that Polish divorce law provides detailed substantive and procedural rules which can lead to a divorce being granted. In particular, Article 56 § 3 of the Family and Guardianship Code can be regarded as intended to be a safeguard to protect one party, usually the weaker, against the machinations and bad faith of the other party. There is also ample domestic case-law on the application of the relevant substantive provisions to situations where an innocent party and, on the other hand, a party at fault for the breakdown of marital relations are involved in the divorce proceedings, providing further clarification and guidance to the courts (see Relevant domestic law). 53. In the present case, the courts examined the facts in detail and in the proper context of domestic law. During the divorce proceedings comprehensive evidence was gathered. The applicant had an opportunity to present his position to the court and put questions to the witnesses. The first-instance judgment was subject to a review by the appellate court. The reasoning of that judgment contained a detailed explanation of the interests that were taken into account, how the evidence was assessed and what the grounds were for its decision to dismiss the applicant’s petition for divorce. 54. The Court is 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. This, however, does not detract from that which is mentioned above. To contemplate otherwise 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 deciding to leave his or her spouse and have a child with a new partner. While under Article 8, de facto families and relationships are protected, such protection does not mean that particular legal recognition has to be accorded to them. It has not been argued, let alone shown, that failure to obtain a divorce and the legal fiction of his continuing marriage prevented the applicant from recognising his paternity in respect of the child he had with A.H. 55. The Court further notes that it has not been argued that under Polish law a refusal to divorce creates res iudicata, thereby preventing the applicant from submitting a fresh petition for divorce to the courts at a later stage if and when circumstances change. 56. In the Court’s view, if the provisions of the Convention cannot be interpreted as guaranteeing a possibility, under domestic law, of obtaining divorce, they cannot, a fortiori, be interpreted as guaranteeing a favourable outcome in divorce proceedings instituted under the provision of that law allowing for a divorce. 57. 58. 59. This conclusion dispenses the Court from addressing the Government’s preliminary objection of incompatibility ratione materiae (see paragraph 34 above; see also, mutatis mutandis, Kotov v. Russia [GC], no. 54522/00, § 133, 3 April 2012).

Outcome for Article 12: no_violation