What’s at Stake
Protecting the principle that the right to marry does not include the ‘right to divorce’
Piotr Gajewski married his wife in 1989 and had three children with her. The couple was happily married for nearly ten years, when Gajewski began a relationship with another woman and moved out of the family home. Mr Gajewski unsuccessfully tried to attain a divorce through Poland’s courts so that he could marry his new partner. Determined to get a divorce, he is now challenging Poland at the European Court of Human Rights.
Gajewski filed for divorce in 2009. But his wife maintained that it would be in the best interest of their children to remain together, and hoped that the marriage could be restored. When Elblag Regional Court finally issued its judgment in March 2010, it refused to grant Gajewski a divorce. The court established that the marriage had been a very good one and only deteriorated when he began seeing another woman. It also found that his wife was a very good mother to their children, loved her husband, and was willing to forgive his affair. The court dismissed Gajewski’s application for divorce.
The husband appealed the ruling, arguing that the refusal to grant him a divorce was harmful to his new relationship. But the Gdánsk Court of Appeal did not agree. It upheld the findings of the lower court in their entirety.
Gajewski’s case is now before the ECHR. He is arguing that by refusing to grant a divorce, the authorities have forced him to remain married to his wife and prevented him from formalizing his new relationship. The court must now decide whether his Article 12 rights (the right to marry) have been violated.
ADF International submitted Third Party written observations to the ECHR, highlighting the court’s previous rulings in which it has consistently denied that a ‘right to divorce’ exists under the Convention. The observations also argue that a wide margin of appreciation should be given to Member States to allow for national differences in this area. In the case of Poland, its courts have decided that divorce is not in the best interest of children, a position supported by a wealth of social scientific evidence.
Our Role in the Case
ADF International submitted Third Party written observations to the European Court of Human Rights.