Lack of consent by spouse to divorce

W divorce cases the most frequently disputed issue is this, which of the spouses is to blame for the breakdown of the marriage. The parties usually agree that they want to divorce, and they are fighting over to whom to attribute responsibility for the fact that the relationship has failed. However, it sometimes happens that only one spouse wants a divorce and the other spouse does not agree. Is it possible declaring divorce against the will of the other spouse? I invite you to read the entry.

From previous posts you have learned that declaring a divorce is possible, if there are specific circumstances, i.e. between the spouses. the complete and permanent breakdown of the marriage. In some cases, despite the above-mentioned grounds, the court will not be able to pronounce a divorce. The court shall, inter alia, dismiss the application if it would cause prejudice to the welfare of joint minor children spouses or if it would otherwise be contrary to the principles of social conscience to pronounce a divorce (Article 56 § 2 of the Family and Guardianship Code).

NO CONSENT TO DIVORCE

A divorce will also not be pronounced if it is requested by spouse who is solely responsible for the breakdown of the marriage, unless the other spouse consents to the divorce or unless refusing to consent to the divorce is, under the circumstances, contrary to the principles of comity (Article 56 § 3 of the Family and Guardianship Code). Let us pause for a moment at this provision. When will it apply? First and foremost, the court will be able to dismiss an action for divorce if it is brought by a spouse who is solely at fault for the breakdown of the marriage and the the other spouse does not consent to the divorce decree. However, this does not mean that it will be sufficient for the innocent spouse to declare at the hearing that he or she does not agree to the divorce. The court will conduct an evidentiary hearing in which it will determine, among other things, whether the refusal to consent to the divorce is contrary to the principles of social cohesion. As an example, a situation is often cited where the spouse requesting divorce is in an extramarital relationship and expecting a child and the other spouse maliciously refuses to consent. In such a case, despite the opposition of the innocent spouse, the court will be able to pronounce a divorce. It will be the court's task to establish the real reasons why the other spouse does not agree to the dissolution of marriage. If refusal to consent to divorce is motivated, for example, by hatred, a desire for revenge or an attempt to extort certain benefits („I'll give you a divorce if you transfer the flat to me') the court will certainly consider it to be contrary to the principles of social intercourse. And when will an objection to a divorce decree be admissible? The situation where one spouse is terminally ill or requires the assistance of the other spouse is often cited as an example.

WHEN WILL THE COURT STILL DISMISS THE ACTION FOR DIVORCE?

The court may not only dismiss an application for divorce if it finds that it would be contrary to the welfare of the joint minor children, the principles of comity or over the objection of the innocent spouse. The court shall not pronounce a divorce if the evidence concludes that there was no divorce at all between the parties severance of marital ties or there are prospects for the marriage to continue.

It follows from the above that not every divorce case will end in the dissolution of the marriage. These are not common situations, but they are possible. It all depends on the circumstances of the particular case and the attitude of the parties.

Do you need additional legal assistance? You have questions about your divorce, email me!