Abstract

Divorce is a legal institution allowing for judicial dissolution of marriage while the spouses are still alive and therefore results in the cessation of marriage. The Family and Guardianship Code has created two types of divorce prerequisites: positive and negative. Positive divorce prerequisites (allowing for declaration of divorce) consist in the complete and durable breakdown of marriage. Negative divorce prerequisites (preventing declaration of divorce) occurwhen the divorce could have a negative effect on the wellbeing of the minor children of the spouses; if the divorce would be contrary to the rules of social co-existence other than the wellbeing of the minors; if the divorce is requested by the spouse exclusively guilty of the breakdown of marriage unless the other spouse has consented for the divorce or the other spouse has not consented for the divorce by their denial is contrary to the rules of social co-existence.Legislative proposals for procedures preceding a divorce hearing were contained inter alia in the Family Code of the Ombudsman for Children of July 2018, which provided for conciliatory and mediation proceedings; draft amendments to the Family and Guardianship Code and certain other acts submitted to the Sejm of the 8th term on 27 February 2019 and draft amendments to the Family and Guardianship Code and certain other acts published on 15 November 2021 by the Government Legislation Centre, which inter alia introduced family information proceedings. The Legislative Council submitted proposals of changes to it, which were aimed at remedying faulty solutions. Those amendments have not been yet adopted. The author subjects them to sharp criticism. In her opinion they lead to the procrastination of proceedings, provoke frustration of the parties and their existential instability, thus undermining the chief principle of Polish family law, namely the wellbeing of the child.An alternative to the above drafts is the author’s proposal to admit extrajudicial administrative or notarial divorce procedures.