Do children may be WITNESSES in parents’ divorce case?

Personally, I am opposed to the involvement of children in adult cases of their parents, especially if can contribute to the rupture of relations between children and parents. Divorce cases are not easy and pleasant. Often before the court comes to the manifestation of the whole regret by divorcing spouses, and when it comes to determining fault in the dissolution of married life, spouses pull out the worst things on the day light. That is why children should not be involved in the process of divorce of their parents.

However, there are situations in which children’s participation in the process will be necessary. Imagine a situation in which the wife mistreats her husband mentally and physically. Outside the family looks normally and happy, but at home, the husband is going through hell everyday. In the end, he decides to divorce his wife and to take children. In the process of divorce he is not able to prove his right before the judge, because there are no witnesses to the fact of abuse of his wife over him, there are no any documents in the form of police notes or forensic examination, because he never reported it. Closest friends are not able to confirm his claims, because they saw his marriage as a happy family, his relatives, if they know anything about the situation, can be easily challenged as unreliable because of the close relationship. In such circumstances may be, that the testimony of the children will decide on the case and prove the reasons of husband, making him win the case.

The Code of Civil Procedure provides certain restrictions in the matter of child witnesses, precisely in order to protect them from engaging in parents’ disputes. You need to keep this in mind and to know the content of articule 430 of the Code of Civil Procedure, which states:

Minors who are under the age of thirteen, and parties’ descendants who are under seventeen can not be heard as witnesses.

The above legal norm shows a clear rule that the children (ie. descendants) of divorcing parents (who are in the process of divorce named parties), so they could be witnesses, they must be at least 17 years old. This principle also applies to children adopted by both spouses and children of one of the spouses, which were afterwards adopted by the other spouse. Other minor must be at least 13 years old.

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Does spouse may NOT AGREE to a divorce?

Example:

Michael and Eve have been married for 5 years. Their marriage was going well, they lived together and they had shared plans for the future and dreams also… until Eve discovered that Michael was having an affair with a colleague from work. It turned out that this is not just a mere infatuation, but Michael wants to tie up with his new partner, and therefore filed for divorce. However, Eve, despite the harm it caused, still loves Michael and can not imagine life without him. She decided that at all costs she will save their marriage and will not let him go. Is Michael allowed to divorce Eve?

In this situation Michael is undoubtedly guilty of marriage has broken down. Through his treachery he violated the vows and loyalty to the spouse. His right is to demand dissolution of marriage, because it is the law that entitled each spouse and the right that can not be questioned. However, in a situation where only the guilty spouse wants a divorce, the innocent spouse has the right to decide the fate of their marriage. He may agree to a divorce, but also can not express this agreement. Eve has a legitimate reason not to agree to the divorce – she loves Michael and wants to give him a second chance. Although this may seem naive, the court will have to take into account the decision of Eve and probably not judged divorce.

Law rule:

Art. 56 § 3 Kodeksu rodzinnego i opiekuńczego (eng. The family and guardianship code)

Divorce is also not admissible if it is requested by the spouse exclusively guilty of the breakdown, unless the other spouse agrees to the divorce or the refusal of consent to the divorce is under the circumstances incompatible with principles of social coexistence.

Can be marriage of Eve and Michael untied? Is there any way to oppose Eve’s decision? Well, the court will not be able to accept Eve’s refusal, if it is under the circumstances incompatible with principles of social coexistence. This would be the case if the denial deserves condemnation from the moral point of view, for example spouse wants to harass the other one in order to disrupt his life due to his decision. The decision to refuse the divorce should be assessed objectively, so if the facts of the case indicate that refusal is not good for nothing else as inflicting harm to a spouse wishing divorce, the court should not accept such a decision.

Returning to the example of Michael and Eve, if we imagine, that Michael became involved permanently with his new partner, they have a common child, and there are no longer ties between Michael and Eve, but she still does not agree to divorce, the court should thoroughly consider the legitimacy of the Eve’s decision. Court should carefully examine the relationship of Michael and Eve, especially is it completely dead, without any chance for renewal and is Eve the only reason to prevent Michael legalize his current relationship with another woman. The court will have to carefully assess whether, in the specific circumstances of the case shall he protect the right to the innocent spouse to maintain the existing marriage or the right to divorce a guilty spouse and legalize his informal relationship in which he remains. The evaluation may turn out that the refusal decision to divorce is misplaced, and the marriage should be dissolved, because there is no future or grounds for further existence.

Important notes:

  • if spouse requesting the divorce has only culpable causes of marriage dissolution, the other spouse can not oppose the divorce,
  • spouse may oppose the divorce only if he is innocent or on its side there are only culpable causes and not so serious that would make complete and permanent disintegration of marriage,
  • consent to the divorce should be expressed before the court in a way clear and completely safe, freely, without any pressure or threats of any of the parties,
  • the consent given earlier but withdrawn after is treated as if it were not given,
  • court will study the other conditions permitting divorce: durable and a complete breakdown of marriage, lack of negative impact of divorce on the welfare of the minor children, no contradiction with the principles of social coexistence.

Useful judicial:

Court of Appeal in Katowice on 15.07.2004 r., ACa 375/04; Supreme Court on 07.08.1959 r., I CO 16/59; Supreme Court on 01.07.1969 r., II CR 528/68; Supreme Court on 05.15.1956 r., I CR 746/55, Supreme Court on 26.02.2002 r., I CKN 305/01, Supreme Court on 28.02.2002 r., III CKN 545/00

If you need legal advise or want to consult your case, contact with me by contact form HERE.

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