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(European Court of Human Rights, 10 January 2017)
Marriage and divorce – Arts 8, 12 European Convention – Refusal to grant divorce pursuant to domestic law – Whether there had been a breach of Arts 8 and 12
The European Court of Human Rights found that there had been no violation of Arts 8 or 12 of the European Convention in the Polish court’s refusal to grant the applicant a divorce.
The Husband and wife were married in 1997. In 2004 the wife underwent fertility treatment in order to conceive but during the same year the husband formed a relationship with a new partner. The husband moved out of the marital home in 2005 and later that year, their child was born.
In 2006 the husband applied for a no fault divorce but the wife refused to agree and asked the court to dismiss the petition. The court refused to grant a divorce and held that the husband had been responsible for the marriage breakdown and that pursuant to domestic law a divorce could not be granted if requested by the party whose fault it was that the marriage had broken down if the other party refused to consent and that refusal was not contrary to the reasonable principles of social coexistence. The appeal was dismissed.
The husband applied to the European Court of Human Rights alleging that his rights under Arts 8 and 12 had been breached by the refusal to grant a divorce and preventing him from marrying his partner.The court held by 5 votes to 2 that there had been no violation of Art 8 or Art 12. In framing divorce laws, Member States were afforded a wide margin of appreciation in determining the steps to be taken to ensure compliance with the European Convention and the reconcile the competing personal interests at stake. Neither Art 8 nor Art 12 conferred a right to divorce. Polish law provided detailed substantive and procedural rules which could lead to a divorce being granted. During the divorce proceedings in this case comprehensive evidence was gathered and the husband had an opportunity to present his position to the court and to question witnesses. The decision contained a detailed explanation of the interests that were taken into account, how the evidence was assessed and what the grounds for dismissal were. That decision was also subject to review by the appellate court.
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