Debunking the Most Common Myths About Divorce

Myth 1: “I won’t get a divorce because my spouse will not agree to it”
Myth 2: “Fault affects the division of marital property by the court”
Myth 3: “Marital property is always divided equally after divorce”
Myth 4: “Divorce always means that one parent loses parental authority over the minor children”
Myth 5: “A finding of fault affects the amount of child support for minor children”
How can you avoid being misled by myths about divorce?

Divorce is a difficult decision involving many emotions. At the same time, numerous myths have arisen around it. In Poland, people often repeat inaccurate beliefs concerning, among other things, findings of fault, division of property, or parental authority. Such misinformation may lead you to make incorrect decisions or to fail to exercise all of your rights during divorce proceedings. In this article, we debunk the most common myths about divorce, relying on facts, statutory provisions, and current court case law.

Myth 1: “I won’t get a divorce because my spouse will not agree to it”

FACT: The Family and Guardianship Code clearly indicates that a lack of consent to divorce is relevant in only one situation: when the divorce is sought by a spouse who is solely at fault for the breakdown of the marriage (a permanent and irretrievable breakdown of marital life).

Such a spouse cannot, in fact, unilaterally “force” a divorce. In this scenario, divorce is possible only if the other spouse (who is not at fault for the breakdown of the marriage) consents to it.

However, in practice, courts may grant a divorce even despite the objection of the innocent spouse. This may occur if maintaining the marriage would be deemed purposeless.

Example: The spouses have not lived together for many years and no longer share any economic, physical, or emotional bond. In such circumstances, the court may find that continuing the marriage serves no purpose. Therefore, everything ultimately depends on the circumstances of the case and the court’s assessment.

Moreover, in all other cases (i.e., when the divorce petition is not filed by the spouse who is exclusively at fault for the breakdown of the marriage), the lack of consent of the other party does not affect the possibility of dissolving the marriage.

Myth 2: “Fault affects the division of marital property by the court”

FACT: Fault for the breakdown of the marriage does not directly affect the division of marital property. As a rule, spouses have equal shares in the marital property. The Supreme Court, in its decision no. I CSK 695/22, confirmed that a finding of fault does not influence the proportions used in the division of property.

What, then, may justify an unequal division of property? Proof that one of the spouses:

Contributed to the creation of the marital property to a significantly lesser extent—for example, avoided work despite being capable of employment (mere differences in income are irrelevant),
Failed to perform obligations related to running the household—neglected the home and children,
Acted to the detriment of the marital property—for example, spent money on gambling or alcohol.

Example: One spouse did not work for years and did not assist with everyday household duties, despite being capable of doing so. This may constitute an important reason for the court to determine unequal shares in the marital property, since such a person did not contribute to improving the family’s financial situation.

Myth 3: “Marital property is always divided equally after divorce”

FACT: As a default rule, marital property is divided equally, with each spouse receiving 50%. However, the court may determine that the shares should be allocated in a different proportion and therefore be unequal.

For the court to rule on unequal shares, it is necessary to file a relevant motion and to prove that:

The other spouse contributed to the creation of the marital property to a much lesser extent—worked less, did not help in the household, or did not contribute to family expenses;
An equal division of property would be unjust, i.e. contrary to principles of fairness and the rules of shared family life.

Courts may find an unequal division of marital property justified in situations such as, in particular:

Irresponsible spending of money, e.g. on gambling, alcohol, or drugs;
Avoidance of work, where one person refused to work for a long period despite having the ability to do so and did not contribute to maintaining the family;
Long-term separate living, where the spouses were in de facto separation and each accumulated funds exclusively for themselves;
Risky financial decisions made without agreement, e.g. one spouse invested joint funds without the other’s consent, resulting in significant losses.

Myth 4: “Divorce always means that one parent loses parental authority over the minor children”

FACT: The court strives to preserve parental authority for both parents if this serves the best interests of the child.

In a divorce judgment, the court must resolve several issues concerning minor children, including:

Who will exercise parental authority,
How the child’s contact with both parents will be arranged.

Different scenarios are possible when making such decisions:

During the divorce proceedings, the parents reached a written agreement on the exercise of custody and contact—the court may rule in accordance with the parental agreement if it considers it to be in the best interests of the child;
The parents did not prepare a parental agreement—the court, after conducting the divorce proceedings, will decide how custody is to be exercised and how contact with the child is to be maintained.

It is true that the court may decide that, as a result of the divorce, one parent will have full parental authority, while the scope of the other parent’s rights and obligations will be limited. However, the overriding consideration in such decisions is always the best interests of the child. This means that both parents may equally retain full parental authority.

Myth 5: “A finding of fault affects the amount of child support for minor children”

FACT: Fault for the breakdown of the marriage does not affect the amount of child support payable for a child.

Parents are obliged to provide maintenance for a child who is not yet able to support themselves, unless the child’s income from their own property is sufficient to cover the costs of maintenance. The amount of child support depends on:

The justified needs of the child, such as housing, healthcare, extracurricular activities, and leisure;
The financial and earning capacity of the parent obliged to pay support.

It is irrelevant whether the parent paying child support is also the one at fault for the permanent and irretrievable breakdown of marital life. Only the two factors mentioned above are taken into account.

This popular myth is most likely connected with regulations concerning maintenance obligations towards a former spouse. In such cases, it does indeed matter who is at fault for the breakdown of the marriage and whether that fault is exclusive.

How can you avoid being misled by myths about divorce?

Divorce in Poland is governed by clear legal regulations that do not always align with popular beliefs. The most important facts to remember are:

A spouse’s lack of consent does not always prevent a divorce—the court may grant it if continuing the marriage is purposeless;
Fault does not affect the principles of property division—the actual contribution to building the marital assets matters;
Property may be divided unequally, but only upon request and after presenting evidence of special circumstances;
Parental authority may remain with both parents;
The amount of child support is not linked to the fault of one spouse for the breakdown of the marriage.

Divorce does not always look the way it is portrayed in films or books (which may partly be responsible for perpetuating these myths). In the Polish legal system, clear rules apply to fault, division of property, child custody, and maintenance obligations.

Therefore, it is worth relying on facts rather than myths—and, where necessary, seeking legal assistance from a family law attorney who can help you navigate the divorce process in an informed and as calm a manner as possible.

A law firm can assist not only in preparing the appropriate divorce petition, but also in clearly identifying and explaining what is most important in the proceedings and how to obtain a divorce. In addition, an attorney will represent you at every hearing, ensuring that your rights are asserted in a fully professional manner.

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