Divorce cases constitute a significant part of the courts’ practice in Poland. In every divorce case several issues are of utmost importance: e.g. type of a divorce (at fault or no-fault), whether a spouse has given consent to divorce, whether spouses have any common children. No less crucial is a pure procedural problem of parties’ presence at the divorce proceedings. Is it necessary for both, claimant and respondent, to appear before the court judging on the mentioned matter? Will divorce proceedings be carried on if the respondent does not appear before the court? Can distance hearings be held?
Absence of Claimant in Divorce Proceedings
A general rule embodied in article 428 of the Polish Code of Civil Procedure (CCP) says that a divorce case shall proceed even in absence of one of the two parties. However, there is a certain exception from the mentioned rule. The same article by its first paragraph prescribes for the suspension of the proceedings in case claimant is not physically present at the first hearings without a sufficient reason (e.g. illness). The term “suspension” means that the proceedings will be stayed by the competent court, and can be resumed only in three months on the basis of the claimant’s request to continue the proceedings. If within a year the claimant will not take any actions, the case will be closed (art. 428 para. 2). Nevertheless, attention should be paid to the fact that the claimant might be represented at the proceedings by a lawyer. In such a case the proceeding might take place in the absence of the claimant, and will not be suspended (The Supreme Court case C 614/51).
Absence of Respondent in Divorce Proceedings
Respondent in divorce proceedings is quite often unwilling to divorce (especially in case when the other spouse claims at fault divorce). Will it be plausible for the respondent in this case to ignore proceedings in order to suspend the hearings?
The answer is no. That will not be a good tactic taking into consideration article 428 quoted above which allows divorce hearings even in the absence of one of the parties. Moreover, pursuant to general provisions of art. 340 of the CCP the court is entitled to issue a default judgment in case the respondent does not appear before the court. Hence the best option for the respondent will be to prepare an answer to the divorce claim with evidence proving his position and to be present at the hearings for answering orally the questions from the court. The absence of a party at the hearings will likely lead to unsatisfactory results for it. Furthermore, one should admit that the Court may penalize the party which does not come to the hearings despite the Court’s summons asking to participate.
In light of the COVID-19 pandemics a relevant question arises: is it possible to participate in the divorce hearings being at a distance? In such circumstances it might, certainly, be challenging or even dangerous to take part in proceedings personally (e.g. in international divorce cases). In this respect one might mention the novelty enshrined in the Law on the 14th of May 2020 which has been created as a reaction to the virus spread. Article 15zzs paragraph 1 of the Law prescribes that the court hearings should be conducted with the use of technical facilities without the need to be present before the court. This rule is relevant within a year after the emergency status caused by pandemics has been cancelled. However, the courts are still entitled to carry out proceedings with the parties being physically present in the court’s building during the proceedings in such a manner which is not dangerous for their health. Thus, for a foreigner not living in Poland but facing divorce proceedings conducted in the state, it seems plausible to ask the court for carrying out distance hearings with the use of modern means of video and audio translation.
Summing up, it should be admitted that in general the hearings in divorce matters might be carried out in absence of both the parties. However, from a practical point of view physical presence of the parties during the hearings seems to be fruitful for both of them.