Can a spouse’s mental illness be grounds for divorce? | In Principle

One of the reasons people dissatisfied with their marriage decide to file for divorce is their spouse’s mental illness. As the number of persons receiving psychiatric treatment is on the rise, and the legal consequences of divorce are substantial, it is worth clarifying when mental illness is sufficient grounds for ending a marriage, and if so, which disorders would qualify.

The legislature in Poland sets the conditions for entering into a marriage and also for terminating a marriage (apart from the death of either spouse). Spouses wishing to end their marriage cannot simply “break up.” For the end of a marriage to have legal consequences, court intervention is necessary.

Meanwhile, one of the principles guiding the family courts is to protect the permanence of existing marriages (as stated for example in the resolution of a seven-judge panel of the Supreme Court, with the force of a legal principle, of 9 May 2002, case no. III CZP 7/02). Protecting the permanence of marriages also reflects the principle of special protection of the family (including children’s welfare) enshrined in Art. 18 and 71 of the Polish Constitution. Nevertheless, the Family and Guardianship Code does allow a marriage to be ended by divorce or annulment.

When can a spouse’s mental illness cited as grounds for divorce? In short:

• Mental illness of one of the spouses can lead to divorce (or annulment, which I discuss in the separate article “Can a spouse’s mental illness be grounds for annulling the marriage?”). Whether the divorce decree may assign fault to the mentally ill spouse depends on the specific facts.
• If one spouse concealed from the other that he or she was struggling with mental illness even before entering into the marriage, this can lead to annulment of the marriage with a finding of fault of the part of the unforthcoming spouse.

Can any mental illness lead to a ruling on dissolution of marriage?

The shortest answer to this question is “No.” But this issue is complex and nuanced. When deciding whether grounds for divorce have occurred, the court must always thoroughly examine the specific facts and seek specialised information, most often by admitting expert evidence from a psychologist or psychiatrist.

Obviously, mental illnesses vary. At different times, one illness can produce different symptoms (of varying severity), and the mere occurrence of specific symptoms does not necessarily indicate a mental illness. Additionally, the catalogue of mental disorders is growing—for example, “narcissistic personality disorder” has been recognised for about 30 years.

So in this article I will only discuss in general terms when mental illness may be grounds for issuing a divorce decree, and point out the most important legal consequences.

Grounds for a divorce decree

Art. 56 of the Family and Guardianship Code specifies when the court can issue a divorce decree. It identifies one affirmative ground for divorce—permanent and complete breakdown of the marital relationship—and three negative grounds militating against divorce.

A divorce cannot be granted even despite a complete and irretrievable breakdown of the marriage if:

• The divorce would be detrimental to the welfare of the spouses’ joint minor children
• For other reasons, declaring a divorce would be contrary to principles of social coexistence, or
• Divorce is sought by the spouse solely at fault for breakdown of the marriage, unless the other spouse consents to divorce or the other spouse’s refusal to consent to divorce conflicts with principles of social coexistence under the circumstances.

Declaration of divorce due to mental illness of one of the spouses

Divorce petitions are sometimes filed with the Polish courts in which one spouse claims that there has been a permanent and irretrievable breakdown of the marriage (i.e. the affirmative ground for divorce is satisfied) due to the mental illness of the other spouse.

In such situations, the courts primarily examine what the mental illness consists of, how long it has been present, how it has affected the course of the marriage, the spouses’ bond, and their relationship with their children. The courts also examine whether the aforementioned negative grounds exist. In practice, even if one spouse is mentally ill and there has been a permanent and irretrievable breakdown of the marriage, the courts must weigh whether granting a divorce would conflict with public policy. This clause gives the court fairly broad room for interpretation.

Ruling on fault

Due to the financial consequences between the divorcing spouses, among other reasons, a ruling on fault is momentous in Polish divorce decrees. Under Art. 57 §1 of the Family and Guardianship Code, “When the court issues a divorce decree, it must also rule on whether a spouse is at fault for the breakdown of the marriage, and if so, which spouse.”

In the broadest terms, for the court to attribute fault requires an objective element (i.e. violation of a specific norm of conduct) and a subjective element (determining the person’s mental attitude towards his or her own act or omission). To assign fault to a spouse, both elements must exist.

Most often, courts indicate that a spouse’s mental illness may exclude the imputation of fault to him or her for the breakdown of marriage. It is pointed out that a mentally ill person may lack the subjective element of fault, because in aggravated cases of mental illness the sick person cannot correctly assess or direct their objectively bad behaviour. But when assessing whether fault for breakdown of the marriage can be attributed solely to the mentally ill spouse, in each case the court should carefully assess the type of illness and whether the breakdown of the marriage was caused by a specific circumstance (mental illness) or there were additional causes (e.g. infidelity of the healthy spouse). Attribution of fault for breakdown of the marriage to a spouse suffering from mental illness will depend on the circumstances of the case, and particularly the type of illness involved.

How do the courts rule?

An analysis of the case law shows that serious illness of a spouse will not always mean that divorce would be contrary to public policy—for example, when a spouse’s mental illness can be blamed on that spouse because it results from his or her addiction to psychoactive substances.

On the other hand, some courts emphasise that mental illness may not allow for divorce, especially when it would result in gross harm to the ill spouse. On the contrary, when a mental illness began during the marriage as a result of a traumatic experience, that should require the other, healthy spouse to exercise increased care and efforts for the health of the ill spouse. Ignoring these principles would violate generally accepted principles of morality.

For example, in the judgment of the Białystok Court of Appeal of 6 March 1997 (case no. I ACa 48/97), the wife’s mental illness had been triggered by a miscarriage. The court refused to grant a divorce sought by the husband, when he had taken no interest in his wife’s condition, did not help her, and made no effort toward the wife’s recovery. 

What are the legal consequences of a divorce decree with a finding of fault of one of the spouses?

Example: Agnieszka filed a petition for divorce against Jan, alleging that there was a complete and irretrievable breakdown of the marriage. There had been no spiritual, physical or economic bond between the couple for more than three years, which Agnieszka attributed to Jan’s anorexia.

Agnieszka claimed that Jan was ill before entering into the marriage and deliberately concealed his illness from her. Agnieszka claimed that Jan’s attitude frustrated his treatment. Despite longstanding efforts on her part, where Agnieszka had hired a number of specialists, Jan refused to participate in therapy and did not take his prescribed medication. In addition to anorexia, after several years of marriage Jan also fell into alcoholism. Therefore, Agnieszka sought a decree of divorce with a finding that Jan was at fault. The court granted her request. This means that even if his illness worsens after the divorce decree is issued, and Jan later becomes destitute, Jan will not be able to successfully seek alimony from his former spouse.

A spouse who is found to be at fault for the marital breakdown must face the following negative legal consequences:

• Even if the guilty spouse is destitute, he or she cannot demand support from the innocent spouse.
• The guilty spouse may be ordered to pay alimony to the innocent spouse if, as a result of the divorce, the innocent spouse’s financial situation has materially deteriorated; alimony may be ordered even if the innocent spouse is not in need.
• If, before the divorce, the spouses maintained separate assets, with equalising of their earnings, the court may refrain from awarding equalisation of earnings to the guilty spouse (however, this is a disputed issue in the jurisprudence).
• The guilty spouse may (depending on the specific facts) be charged with a higher share of the costs of maintaining and raising the spouse’s children than the innocent spouse.

Relation to child custody

In principle, a mere finding of fault for breakdown of the marriage does not mean that the guilty spouse will be denied parental authority over the couple’s children. In theory, the exercise of parental authority can be entrusted to a person found to be at fault for breakdown of the marriage, if the person’s other characteristics established during the proceeding show that he or she will properly care for the child. But under some specific facts, when determining the scope of parental authority the court will find that the established fault of one of the spouses impinges on issues of parental authority (when the guilty spouse is found to have committed disgraceful behaviour disqualifying them from acting as a parent).

Therefore, it cannot be ruled out that if the court finds one of the spouses at fault for breakdown of the marriage, exercise of parental authority over the spouses’ children will be entrusted exclusively to the innocent spouse, and the parental authority of the spouse at fault will be limited to certain specified rights and duties in relation to the child.

Aleksandra Cygan, adwokat, Dispute Resolution & Arbitration practice, Wardyński & Partners