Fault in a Polish Divorce – Is It Really Worth Fighting For?

“I want the court to say it was his fault.” This is one of the most common things we hear at a first consultation in divorce cases. The motivation is understandable – after years of a difficult marriage, there is a very human need for someone in authority to confirm: yes, you were not the one who caused this. But is it worth fighting for? And what does a fault finding in a Polish divorce judgment actually change – and what does it leave entirely untouched?

Table of Contents

1. What is the difference between exclusive fault and shared fault?
2. Spousal maintenance – this is where the difference is enormous
3. Division of marital assets – does fault matter here?
4. Children and parental authority – an indirect connection, not a direct one
5. Emotions and life after divorce – what the law does not regulate
6. Is it worth fighting for a fault finding? When yes, when no
7. FAQ

What Is the Difference Between Exclusive Fault and Shared Fault?

Let us start with what the court actually decides in this area. A Polish divorce judgment can contain one of three findings regarding fault: divorce with exclusive fault attributed to one spouse, divorce with shared fault attributed to both, or divorce without any finding of fault (when both parties agree to waive it).

The difference between exclusive fault and shared fault is not merely symbolic. It has concrete, measurable financial consequences – consequences that extend for many years after the divorce is granted.

The case decided by the Court of Appeal in Poznań (case reference I ACa 230/19) illustrates this well. The court of first instance found shared fault on both sides; it was only the appellate court that changed the judgment to exclusive fault on the part of one spouse. That change had real legal consequences for both parties.

Spousal Maintenance – This Is Where the Difference Is Enormous

This is the most significant practical consequence of a fault finding, and the point at which the two paths diverge most sharply.

With shared fault, or where fault is not adjudicated: a former spouse can claim maintenance from the other only if they are in a state of genuine financial need (niedostatek) – meaning they are unable to meet their reasonable living costs from their own resources (Article 60 § 1 of the Family and Guardianship Code). This is a relatively high threshold. A difficult financial situation is not, by itself, enough.

With exclusive fault on one side: the non-guilty spouse can claim maintenance as soon as the divorce brings about a significant deterioration in their financial situation – even if they are not in genuine need (Article 60 § 2 of the Family and Guardianship Code). This is a considerably lower threshold and a substantially broader entitlement.

Consider a situation that arises frequently: a wife who spent a decade or more not working professionally, looking after the home and children. After the divorce, her financial situation deteriorates significantly – even if she is not in genuine need in the strict legal sense. With shared fault, she might struggle to obtain maintenance from her former husband. With his exclusive fault, she has a clear legal basis for it.

And what about how long the obligation lasts? Here too there is an important difference. Maintenance based on financial need under Article 60 § 1 expires as a rule after five years from the divorce judgment, unless the court extends it in exceptional circumstances (Article 60 § 3). Maintenance owed to the non-guilty spouse under Article 60 § 2, however, carries no such five-year limit – the obligation can continue indefinitely, for as long as the relevant conditions are met. Over a long time horizon, this is a fundamental financial distinction.

Division of Marital Assets – Does Fault Matter Here?

The divorce judgment does not resolve the division of joint marital assets – that is a separate set of proceedings. But a fault finding can have an indirect bearing on them.

Under Article 43 § 2 of the Family and Guardianship Code, either spouse may request, for important reasons, that the division of joint assets reflect the extent to which each of them contributed to building that estate. In practice, a finding of exclusive fault – particularly where the guilty conduct involved the dissipation of joint assets (for example, spending marital funds on alcohol, gambling, or maintaining another relationship) – can serve as an additional argument for an unequal division.

A fault finding does not automatically produce an unequal split, but it provides context that the court may take into account.

Children and Parental Authority – An Indirect Connection, Not a Direct One

Formally, a fault finding has no direct bearing on decisions about parental authority or contact arrangements. These matters are assessed solely through the lens of the child’s best interests – regardless of who caused the breakdown of the marriage.

In practice, however, an indirect connection does exist. Behaviours that lead to a finding of exclusive fault – violence, alcoholism, neglect of the family, drawing children into the parental conflict – are noticed by courts and weighed when determining parental authority and contact. In case I ACa 230/19, the Court of Appeal in Poznań highlighted the fact that one of the parties had drawn the children into the marital conflict as an aggravating circumstance – even though it did not, in the end, form the primary basis of the fault finding itself.

Emotions and Life After Divorce – What the Law Does Not Regulate

There is another dimension that rarely comes up in legal consultations, but that matters significantly in practice: the effect of a fault finding on the relationship between former spouses after the divorce.

A finding of exclusive fault can bring a sense of satisfaction and justice. But it can also become a persistent source of conflict. The spouse found exclusively at fault often experiences the finding as a profound injustice, which makes future communication harder. And if the parties have children together, that communication will be necessary for many years to come.

A finding of shared fault – while less satisfying for the party who feels more wronged – sometimes paradoxically makes it easier to close the chapter and focus on what comes next. This is not an argument for abandoning the pursuit of exclusive fault when there are solid grounds for it. But it is a perspective worth considering, particularly where the long-term co-parenting relationship matters.

Is It Worth Fighting for a Fault Finding? When Yes, When No

The answer depends on the specific situation – and should always follow an honest assessment of the real benefits and costs.

Consider pursuing a finding of exclusive fault when: the non-guilty spouse’s financial situation will genuinely deteriorate after the divorce and there are grounds for maintenance under Article 60 § 2; where the guilty conduct involved the dissipation of joint assets; and when you have solid evidence – because Polish courts do not find exclusive fault lightly.

Consider waiving fault adjudication when: a quick conclusion to the proceedings is a priority (cases with fault adjudication take significantly longer); where the evidence is ambiguous and there is a real risk of obtaining a shared fault finding rather than exclusive fault; or where agreed arrangements for children and assets are the primary concern and a contested fault hearing would complicate or delay them.

This decision is always worth discussing in detail with a lawyer who can assess the realistic prospects and consequences in your specific case.

FAQ

Does a fault finding in a divorce judgment automatically mean higher maintenance payments? Not automatically – but it significantly expands the legal basis for claiming them. With exclusive fault, the non-guilty spouse can claim maintenance on the basis of a significant deterioration in their financial situation, without needing to demonstrate genuine need. That is a lower threshold and can lead to higher and longer-lasting payments.

Will the court always rule on fault if one party requests it? Yes – if either party asks for a finding of fault, the court is obliged to address it. The only exception is where both parties jointly agree to waive fault adjudication.

How long do proceedings with fault adjudication take? Considerably longer than proceedings without it. Depending on the number of witnesses, the need for expert opinions and the complexity of the evidence, the difference can range from several months to several years.

What evidence is needed to establish exclusive fault? Witness testimony, medical records (for example in cases involving alcoholism or domestic violence), correspondence, police reports and psychological assessments are all relevant. The clearer and more specific the evidence, the greater the chance of a finding of exclusive rather than shared fault.

Can a fault finding be changed after the judgment becomes final? A final and enforceable judgment cannot generally be revisited on this point. This is precisely why getting the strategy right at first instance matters so much – any correction is only possible through an appeal before the judgment becomes final.

I am a foreign national going through divorce in Poland – does the fault system apply to me? Yes, if your divorce is being handled by a Polish court. The fault framework described in this article applies regardless of nationality. It is worth noting that many legal systems – including most Western European countries – have moved to no-fault divorce, so the Polish approach can come as a surprise. In Poland, fault still carries real financial consequences, particularly around spousal maintenance. If you are uncertain how this affects your situation, taking legal advice early is strongly recommended.

What if my spouse is claiming I am at fault, but I believe the fault is shared or theirs? This is a contested fault case, and the outcome will depend on the evidence each side presents. Courts in Poland assess fault on the basis of the specific circumstances – there is no presumption either way. Both parties have the opportunity to present witnesses and documents. It is worth preparing your position carefully and with legal assistance, since the financial consequences of the outcome can be significant.

Are you considering whether to pursue a fault finding in your divorce proceedings? Call: +48 531 335 713 or email: kancelaria@prawnikodrozwodu.pl

This article is for general informational purposes only and does not constitute legal advice. Every family law case is individual and requires analysis of the specific circumstances and documents involved. The law firm accepts no liability for actions taken on the basis of the information contained in this article. For legal advice tailored to your situation, please contact our office.

Kancelaria Prawa Rodzinnego (Family Law Office): Adwokat Michalina Koligot, Adwokat Marta Krzyżanowicz, Adwokat Anna Konrady, Radca prawny Joanna Jędrzejewska ul. Mickiewicza 18a/3, 60-834 Poznań | tel. +48 531 335 713 | kancelaria@prawnikodrozwodu.pl | www.prawnikodrozwodu.pl