Poland’s Government Attacks the Stability of Marriage – Ordo Iuris’ Opinion on the “Express Divorces” Bill

The Ordo Iuris Institute published an analysis of the draft bill that was announced on November 12 by the Polish Council of Ministers, amending the Family and Guardianship Code and certain other acts. The essence of the proposed regulations is to introduce into the Polish legal system a new institution, namely “out-of-court divorce” or “express divorce.” Poland’s Ministry of Justice, in an official press release, states that „an out-of-court divorce procedure will be available to marriages in which there has been a complete and permanent breakdown of the marital relationship. This is a fundamental condition without which divorce is not possible. Additionally, several requirements must be met: (1) the spouses must be in agreement to dissolve their marriage without an adjudication of fault, (2) they do not have any minor children in common, (3) their marriage has lasted at least one year, (4) no proceeding is currently pending between the spouses for divorce, for legal separation with a demand for divorce, or for annulment of the marriage.”

In response to the adoption of the draft by the Council of Ministers, the Ordo Iuris Institute published a legal opinion stating that neither the Constitution of the Republic of Poland nor the international human rights framework provides in any way for a “right to divorce.” Divorce can be found in the legal systems of some countries; however, it is regarded only as an exception to the principle of protecting marriage, which should, by default, be treated as a lasting and indissoluble institution. Marriage, being subject to the special protection and care of the Republic of Poland, does not constitute an “ordinary contract.” The state cannot “abdicate” and withdraw from making a sovereign determination as to whether the social and demographic potential of a given marriage has already been irretrievably lost, even if the spouses believe so at that moment. This does not mean that divorce proceedings should be prolonged indefinitely. However, the appropriate place for adjudicating such fundamental matters should remain the realm of the judiciary—the courtroom.

The regulations proposed by Donald Tusk’s government are not the first attempt to make divorce more attractive to citizens and, consequently, to reduce the appeal of the institution of marriage. Previous legislative actions that effectively discouraged thousands of Poles from marriage (the consequences of which are still felt today) included the introduction of a single-parent child-rearing benefit (2003) and the abolition of reconciliation hearings after 60 years of their operation (2005). As a consequence, although during the first 35 years of the Third Polish Republic (1990–2024) that followed the communist People’s Republic of Poland the annual number of divorces initially declined (from 42,436 in 1990 to 27,891 in 1993) and then rose slowly, reaching 56,332 in 2004, once the aforementioned changes took effect the figure jumped to 67,578 in 2005 and 71,912 in 2006. After 2007, the number of divorces fell noticeably, but so far it has not dropped below the 50,000 threshold set in 2004; in 2023, the number of divorces in Poland was 56,892, and in 2024, it was 57,463. Similarly, for example, the Eurostat indicator of divorces per 1,000 inhabitants was relatively stable between 1990 and 2002, ranging from 0.7 to 1.2, whereas from 2003 to 2006 it increased from 1.3 to 1.9. It then began to decline to 1.5 in 2024—still higher than in 2002, before the changes were introduced.

Also, the experiences of Portugal, Spain, Italy, and France described in the Ordo Iuris analysis—which introduced “express divorces” in 2001, 2005, 2015, and 2016, respectively—suggest that merely making this option available causes an irreversible “marital catastrophe”—the changes introduced there led not only to a technical acceleration of the procedure but also to a decline in overall marital stability. In Portugal, the divorce rate rose from 1.8 in 2001 to as high as 2.7 in 2002; in Spain, from 1.2 in 2004 and 1.7 in 2005 to 2.9 in 2006; in Italy, from 0.9 in 2014 to 1.4 in 2015 and 1.6 in 2016. The divorce rate in these countries did not decline until the COVID-19 pandemic. With respect to this indicator, the researchers Libertad González and Tarja K. Viitanen, in their 2009 study covering 18 European countries over the period 1950-2003, indicate that “the introduction of unilateral no-fault divorce increased the divorce rate by about 0.6.”

The draft law may also negatively affect the well-being of children conceived during marriage (as well as their mothers)—it allows for a situation in which parents consent to a “fast-track divorce” without knowing they are expecting a child and have no opportunity to reconsider or withdraw that decision. Such situations can be prevented by explicitly adding the conception of a child to the grounds that enable filing a petition to invalidate an extrajudicial divorce. The second group affected by the current wording of the draft bill consists of adult children who are disabled or otherwise not self-sufficient and remain under their parents’ care—in such cases, any divorces should likewise remain under the competent oversight of the judiciary, as in, for example, Brazil, Italy, and Spain. The complete omission of this issue by Donald Tusk’s left-liberal government is incomprehensible, all the more so given that the Polish Federation of Pro-Life Movements called attention to it during the public consultations.

The Ordo Iuris Institute concludes its opinion with the statement that an expression of genuine “protection and care” for marriage is for the justice system to have appropriate tools that enable spouses in dispute to consider all the arguments for and against a possible separation and the formalization of that process, but above all to determine whether the marriage truly no longer fulfills its social function and will not be able to fulfill it in the future, even if appropriate remedial measures are undertaken. These tools are also present in the current divorce proceedings in the form of the court’s power to refer the parties to mediation if there are prospects for preserving the marriage (Article 436 of the Code of Civil Procedure) and the court’s mandatory suspension of the proceedings if it becomes convinced that there are prospects for maintaining marital cohabitation (Article 440 of the Code of Civil Procedure). Meanwhile, the government bill transfers responsibility for the entire procedure to the head of the civil registry office, while depriving him or her of any ability to effectively verify the actual status of the marriage in question, which raises legitimate doubts as to whether these regulations are in any way compatible with Article 18 of the Constitution of the Republic of Poland.

“The government bill would downgrade marriage to the level of a ‘mere contract,’ contrary to the constitutional principle of protecting and caring for this institution. The state should not ‘abdicate’ and withdraw from its sovereign assessment of the future potential of marriages. The appropriate place for adjudicating such fundamental matters should, however, remain the domain of the judiciary. Therefore, the bill in its current form should be rejected by the Sejm of the Republic of Poland or vetoed by the President of the Republic of Poland,” says Attorney Nikodem Bernaciak, senior analyst at the Center for Research and Analysis of the Ordo Iuris Institute.

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