ECHR: No right to divorce

On 10th January 2017 the European Court of Human Rights found in the Babiarz v. Poland case that there had been no violation of Articles 8 or 12 of the European Convention on Human Rights in the Polish court's refusal to grant the applicant a divorce. According to the ECHR, the refusal to grant divorce has been consistent with Polish domestic law.

Facts of the case:

The applicant married his wife in 1997. In 2004 the wife underwent fertility treatment in order to conceive a child. The same year the applicant formed a relationship with a new partner and moved out of the marital home in January 2005. In October 2005 the applicant's new partner gave birth to their daughter.

In September 2006, the applicant filed a petition for a no-fault divorce. The wife did not agree to the divorce and asked the court to dismiss the petition. In February 2009 the court refused to grant a divorce to the applicant. The court held that the applicant was the only person responsible for the breakdown of the marriage because he had failed to respect the obligation of fidelity. It further emphasized that pursuant to domestic law, a divorce could not be granted if it had been requested by the party who was at fault for the marital breakdown and if the other party refused to consent and that refusal was not "contrary to the reasonable principles of social coexistence". In June 2009 the applicant's appeal was dismissed by the Court of Appeal in Lublin. The judgement of appellate court was final, as a cassation appeal against a divorce judgement is not available under Polish law.

The applicant applied to the European Court of Human Rights arguing that his rights under Articles 8 and 12 to marry and create a family had been breached by the court's refusal to grant a divorce and preventing him from marrying his current partner.

Article 8 of the European Convention states that 'everyone has the right to respect for his private and family life, his home and his correspondence', while Article 12 states that 'men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right'.

Judgement of the ECHR:

ECHR found that there has been no violation of Article and no violation of Article 12 of the European Convention. It held that both articles of the Convention cannot be interpreted as conferring on individuals a right to divorce. The court stated that Polish law provides detailed substantive and procedural rules which can lead to a divorce being granted. The first- instance judgement was subject to a review by the appellate court. The decision contained a detailed explanation of the interests that were taken into account, how the evidence was gathered and what the grounds of the dismissal the applicant's petition for divorce were.

Conclusions: 

No one would argue with the fact that it takes two people to marry. However, what should be done if one party (unfaithful) wants to finish the marriage and the other party (faithful) refuses the consent?

The answer is not easy.

Under the Polish 'Family and Guardianship Code', a divorce can be refused if it has been requested by the party whose fault it was that the marriage had broken down, if the other party refused to consent and the refusal of the innocent party was not "contrary to the reasonable principles of social coexistence". The majority found that there was no indication that when refusing to give her consent the wife had acted out of hatred, was motivated by vengeance, or simply wanted to vex the applicant. It said that the duration of the man's new relationship could not by itself be considered to be a sufficient reason for granting the divorce. In short, domestic law had been properly followed, and that did not breach Articles 8 or 12, neither of which conferred a right to divorce.

The decision in Babiarz vs Poland was not unanimous. It was held by 5 votes to 2. The two dissenting judges were Judge Sajó of Hungary and Judge Pinto de Albuquerque of Portugal. Judge Sajó's opinion is particularly interesting. He found that a right had clearly been interfered with in the case, i.e. the private life right not to be forced to live in a marital union with another person. He pointed out that there is no right to live as a married couple against the will of the other party, as secular law considers marriage to be a voluntary union. He concluded:

"I see no reason why the State should be able to force citizens to live in a partnership contrary to their choosing. A marriage between two citizens cannot provide the State with the prerogative of its perpetuation once one of the parties has taken the private and family life decision not to continue living under such a legal bond ... It is bad enough that a person has to deal with the fact that a lifelong decision such as marriage went wrong, for whatever reason. To allow the State to force people to live with their regretted life choices, thus preventing them from moving on with their private lives, inevitably entails an impermissible intrusion that cannot be considered necessary in a democratic society."

What is the point of keeping the marriage if two people do not want to live together any longer? It obviously doesn't serve the husband, who wants to move on with his life, nor his new family, and it does not serve the wife either, who is in the meaningless position of still being married to someone who no longer wants to be married to her. It also surely does not serve the institution of marriage, the very thing that those who support this sort of 'divorce denial' purport to want upheld – it does not support it, because here the husband actually wants to enter into a marriage, and this time a happy one, but is being denied that opportunity. The whole situation is a nonsense.

On the other hand, the marriage is not like any other commercial contract which can be easily revoked. It should take into account sensitivity of both parties.