When the court can declare separation between spouses ?

Today’s article is devoted to the institution of separation, and in fact, the events that affect its decision or not by the court. The word separation comes from the Latin word “separatio” which means disconnection, separation or affiliation. When trying to define the institution which is separation it should be undoubtedly emphasized that it consists in abolition, by court decision, of property and non-economic rights and obligations of the spouses. What is important, as opposed to a divorce, separation does not break the marriage bond and neither spouse may remarry during the separation period.

Polish legislator has described the institution of separation in section V of the Family and Guardianship Code. Article 611 of the aforementioned regulation directly presents the situations which make it possible to pronounce a separation between spouses. The basic reason is, first of all, the occurrence of a complete breakdown of marital relations. In such a situation each spouse has the right to request the court to pronounce a separation. It is worth mentioning that the complete breakdown of marital relations is such a state when there is no longer a spiritual, physical and economic bond between the spouses. The above described event is counted among the positive prerequisites for the pronouncement of separation, i.e. those which enable its pronouncement.

The Family and Guardianship Code contains yet another category of grounds for ruling on separation. These are negative grounds, i.e. grounds whose occurrence prevents the court from pronouncing a separation. The first of them is the welfare of joint minor children. This is a situation where as a result of separation between spouses the good of their common minor children would suffer. In this situation joint minor children are considered not only children of the spouses, but also children adopted by both spouses and children of one spouse adopted by the other spouse. What is important is that the premise of the child’s welfare should be examined by the court individually in each case.

The second premise, included in the negative catalog, of a separation ruling is that the ruling is contrary to with the principles of social intercourse. Here, as in the previous situation, the court must thoroughly examine each case and analyze all factors that could make separation between spouses contrary to the principles of social harmony. For example, the welfare of a conceived child will be considered such a situation.

If the parties do not have any minor children in common, the court may pronounce a separation upon a mutual request of the parties. It should be remembered then that both prerequisites, i.e. lack of common minor children and consensual request must occur simultaneously.