Under Polish law divorce can only be granted by the court. Spouses are not able to independently determine how the marriage is to be dissolved. In the wake of sweeping socioeconomic changes that occurred in Poland after 1989, it became reasonable and appropriate to consider the possibility of extending the scope of the autonomy of will of spouses, so that it covers the dissolution of marriage. A comparative approach adopted in the article made it possible to develop models that reflect the systems currently used within other legal systems with regard to the dissolution of marriage. A comparative-law analysis was meant to facilitate an in-depth discussion in Polish literature on the admissibility of and rationale for the introduction of extrajudicial divorces. In particular, the article attempts to determine the limits of the autonomy of will of spouses wishing to dissolve their marriage that would be acceptable at the level of national legal systems in Europe. Furthermore, a model solution is proposed on the basis of an analysis of legal systems of European countries that should optimally implement the principle of the autonomy of will of divorcing spouses
The article is a reaction to the submission by the Children’s Ombudsman of the draft of the new Family Code, which does not alter the provisions governing the civil effects of marriage officiated by a member of clergy. It first presents the legislative history and key assumptions underlying the draft of the new Family Code and examines them by means of a critical review. What follows is an outline of theoretical models adopted by selected European countries with respect to the celebration of marriage. The article then discusses Polish provisions governing marriage officiated by a member of clergy. Particular attention is paid to serious doubts expressed by legal scholars as regards the nature of a marriage certificate that is issued following such marriage. Consequently, the article provides suggestions on how the applicable provisions should be amended and criticises the solution offered in this respect by the draft of the new Family Code.
In the introduction it is shown in the shortcut an evolution of regulations concerning property effects of marriage independent of matrimonial regime in Swiss law. In the other chapters there are particularly analysed maintenance, the amount for free disposal, the extraordinary contribution, the representation of one spouse by the other, the protection of matrimonial apartment and mutual obligation to inform spouse about property condition of the other spouse. Further there is a presentation of regulations that give the court an opportunity to forbid a spouse to dispose goods without any previous consent of the spouse and rules provided for a situation in which there is a discontinuation of running common household but without any official dissolution of marriage by the divorce. In the summary there are shown the resemblances and differences between Swiss and Polish law. Particularly there are indicated some solutions that can be an inspiration for Polish legislator on amendment of Family and Guardianship Code.
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