Duty of fidelity during divorce

Duty of fidelity during divorce. Divorce cases take longer and longer, in the case of adjudication of guilt, lack of compliance with regard to the whereabouts of common minor children, parental authority and contacts, the average case lasts about 2 years. It happens that during this time the spouses decide to establish new emotional and intimate relationships with other partners. These relationships are often carefully hidden from “the spouse ” so as not to be charged with exclusive guilt in the breakdown of marriage.


Judgments provide an answer to the question whether such a relationship with a new partner can be considered in the category of treason. According to a well-established view, the spouse’s behavior, undertaken when a permanent and complete breakdown has already occurred, cannot be considered culpable and decaying marriage (e.g. the ruling of the Supreme Court of September 19, 1949, file ref. C.103 / 49; November 20, 1952, file reference number C. 600/52; of February 26, 1999, file reference number I CKN 1019/97; of September 28, 2000, IV CKN 112/00; of March 21, 2003. ., file reference number II CKN 1270/00).

This means that in a situation where the spouses have not run a common household for a long time, do not live together, do not live together, and the spiritual and emotional bond between them has ceased, they may remain in a relationship with the new partner and should not be afraid of being blamed. However, care should be taken when it is shown that the new relationship was formed at a time when the breakdown of the relationship between the spouses was not complete.

The issues of fidelity are different in the case of a legal separation. By definition, separation is adjudicated when there is still a chance to restore the ties between the spouses, it causes the cessation of joint property between the spouses, but it is not possible to contract a new marriage or return to the maiden name. Therefore, if the spouse who brought or agreed to the separation then establishes an intimate relationship with a new partner, he or she should take into account the risk of a self-inflicted divorce. It is worth following the arguments of the Court of Appeal in Poznań, which in the justification of the judgment of September 9, 2009, file ref. act I ACa 565/09 indicated that:
” After separation, the spouses no longer apply Art. 23 k.r.o. It is debatable, however, that separated spouses are not obliged to be faithful to each other. Since the meaning of the existence of the institution of separation is the restitution of the marriage relationship, and the obligation of fidelity can significantly help in achieving this goal – at least certainly not harm – the obligation of fidelity should rest on the spouses”.