Blog
Attorney Milena Nowicka
Evidence in divorce proceedings regarding the breakdown of marital cohabitation
Evidence in fault-based divorce proceedings – how to prove that the marriage broke down due to the fault of the other party
Witness testimony
Physical evidence – photographs, recordings
Evidence in child maintenance (child support) proceedings
Evidence relating to parental authority over minor children
How to determine which evidence will be most important in divorce proceedings
The decision to divorce is never an easy one; however, once it is made, it is essential to ensure proper preparation for court proceedings. How should this be done? First and foremost, by collecting appropriate evidence. On the basis of such evidence, you will be able to demonstrate that there has been a breakdown of marital cohabitation, meaning the severance of the three fundamental bonds: emotional, physical, and economic. In order for the court to grant a divorce, it must be proven that all of these bonds have ceased and that there is no prospect of their restoration. Evidence submitted in divorce proceedings also enables the court to determine which party is at fault for the breakdown of the marriage, the appropriate level of maintenance to be awarded, and which parent should be granted parental authority and custody of the children.
Let us begin with the fundamental issue, namely demonstrating that all bonds between you and your husband or wife have ceased and that the breakdown is permanent. In order to understand what precisely the collected evidence should demonstrate, it is necessary to know what constitutes the cessation of these three bonds:
In practice, the most important evidence in this respect will be that which demonstrates that the spouses no longer live together. This may be confirmed by private documents, such as a residential lease agreement, utility bills paid by you at a new address, or correspondence delivered to your new place of residence.
The concept of marital fault is also of significant importance in divorce proceedings. If you are able to demonstrate that your husband or wife alone is responsible for the breakdown of the marriage, this may result in tangible legal benefits beyond mere personal satisfaction. The key issue in this context is spousal maintenance.
If the other party is found to be exclusively at fault, they may be obliged to pay maintenance on more favorable terms, namely due solely to the deterioration of your standard of living following the divorce. How can such fault be proven? In this respect, several categories of evidence may be relevant.
In determining fault, in addition to hearing the parties themselves (that is, you and your spouse), witness testimony is of particular importance.
What such evidence is intended to prove depends on the arguments raised in the statement of claim or the response thereto, as well as on your specific family circumstances. Grounds for divorce may include alcohol or drug addiction, domestic violence, abandonment, infidelity (including emotional infidelity). There are also cases based on “irreconcilable differences,” although in such situations it is unlikely that the court will find one party exclusively at fault.
Who may be called as a witness? Individuals whose testimony may be relevant to the court in light of the claims you have presented. This may include close family members, friends, co-workers, or neighbors. The court will ask witnesses questions regarding the spouses’ everyday life, their conduct, any conflicts that arose, and the overall family situation. Witness testimony that is factual, detailed, and consistent may constitute strong evidence supporting your position.
Evidence may also include photographs from social media platforms, psychological opinions, the parties’ own statements, or audio and video recordings. A common question arises as to whether recordings made without the knowledge or consent of a spouse may be used as evidence.
This is a complex issue that could merit a separate discussion. In brief, however, recordings obtained without the knowledge or consent of the other party are not automatically rejected by the court. In each case, the court will assess the specific circumstances and decide whether such evidence is admissible. The situation is different where evidence has been obtained through the commission of a criminal offense, as provided for in Article 267 of the Polish Criminal Code. In such cases, the evidence will be inadmissible in divorce proceedings.
When determining the amount of child maintenance, the court considers two primary factors: the justified needs of the minor child and the earning and financial capacity of the parent obliged to pay maintenance. Accordingly, the evidence you submit should focus on these issues.
The documentation should include, inter alia, tax returns, employment certificates, income statements, receipts, employment contracts, and, if applicable, disability certificates.
The second key issue is the child’s “justified needs,” meaning the financial resources required to ensure a dignified standard of living appropriate to the child’s age, health condition, and life circumstances.
You may therefore submit evidence demonstrating the costs of maintenance, education, extracurricular activities, leisure, and recreation. On this basis, the court will determine the amount of maintenance in proportion to the child’s justified needs and the financial capacity of the parent responsible for providing it.
If you seek to be granted full parental authority over minor children, you must also present appropriate evidence in this regard. The court’s primary consideration will be the best interests of the child and their proper development. Consequently, it will be crucial to demonstrate that you are able to provide suitable living, emotional, and social conditions, and that such a decision would be in the child’s best interests.
You may show that you actively participate in your child’s life by attending school meetings, extracurricular activities, or medical appointments. All such factors will be taken into account when the court decides on parental authority.
Another important piece of evidence in cases concerning parental authority and contact arrangements is a social inquiry (home environment assessment). Although the court is not obliged to order such an inquiry, it often does so in practice in order to assess the conditions in which the children live and are being raised.
An equally important form of evidence is the opinion issued by the Family Court Experts’ Team (OZSS), which serves to assess parental competencies, the emotional bonds between parents and children, and, above all, to determine which outcome would best serve the child’s welfare. For this reason, it is essential to prepare thoroughly for both the OZSS assessment and the social inquiry.
What evidence, then, should you prepare in your divorce case? Unfortunately, there is no simple answer. This depends primarily on:
This is particularly important given that the burden of proof rests with you. This means that it is your responsibility to convince the court of your position. If the evidence proves insufficient, the court will not grant your claims.
Due to the complexity of divorce cases and their significance for your future, it is therefore advisable to seek the assistance of an attorney specializing in family law. Such an attorney will have experience in handling similar cases and will know which evidence is most effective. They will also ensure that all relevant claims are included in the statement of claim and explain how proceedings such as the social inquiry or examination of the parties will be conducted. As a result, you will not only increase the likelihood of obtaining a judgment consistent with your expectations, but also reduce the stress associated with the entire process.
