Infertility and divorce in Poland – can a spouse be found at fault for the breakdown of the marriage?

Infertility affects approximately one in five married couples in Poland – and it is a subject that for too long carried an undeserved stigma. Couples facing the inability to have children encounter not only medical challenges but sometimes legal ones as well. Can infertility lead to divorce? And can a spouse who is unable to have children be found at fault for the breakdown of the marriage?

Table of contents

1. Can infertility lead to divorce?
2. Infertility as a blameless cause of the breakdown of the marriage
3. When can infertility give rise to a finding of fault?
4. What does this distinction mean in practice?
5. FAQ

Can infertility lead to divorce?

Yes – though the mechanism is more complex than it might appear. Infertility is not in itself a ground for divorce. The ground for divorce is the complete and permanent breakdown of the marital union (Article 56 § 1 of the Family and Guardianship Code, Kodeks rodzinny i opiekuńczy) – understood as the cessation of the emotional, physical, and economic bonds between the spouses.

The inability of one spouse to have children can, however, be a circumstance that – particularly where the couple greatly desired a family – has a profound impact on every sphere of the marriage. It may lead to emotional distance, a sense of grievance, mutual incomprehension, and ultimately to the breakdown of the bonds between the spouses. Where that breakdown is genuine, complete, and permanent, the court may grant a divorce regardless of what caused it.

Infertility as a blameless cause of the breakdown of the marriage

Polish courts consistently apply the principle that infertility – as a medical condition independent of the spouse’s will – is not that spouse’s fault. The Supreme Court, in its judgment of 10 March 1951 (reference C 48/51), described infertility as a blameless cause of the breakdown of the marital union (niezawiniona przyczyna rozkładu). This means that infertility may be the cause of a breakdown – but does not in itself make the infertile spouse at fault.

This distinction has real practical significance. Where the court establishes that the breakdown occurred because of one spouse’s infertility, but that spouse had no control over the condition and did not conceal it, that spouse will not be found solely at fault. The divorce may be granted without any fault finding (by agreement of both parties), with a finding of shared fault, or with a finding that the breakdown resulted from a blameless cause – depending on the overall circumstances of the case.

This principle applies where two conditions are met simultaneously: the spouse became aware of their infertility only during the marriage, and the infertility was caused by factors beyond their control.

When can infertility give rise to a finding of fault?

There are exceptions to the general rule. A spouse may be found at fault for the breakdown of the marriage connected with infertility in two situations.

Concealment of infertility before the marriage. Where one spouse knew of their infertility before the wedding and deliberately concealed this from their partner, the court may treat this as blameworthy conduct leading to the breakdown. Concealing a material circumstance relating to the ability to have children – particularly where having a family was a priority for the other party – may constitute a breach of fundamental marital obligations, including the duty of loyalty and mutual respect.

Deliberately causing one’s own infertility. Where one spouse consciously and without the other’s knowledge took steps that resulted in their own infertility – for example, by undergoing a sterilisation procedure without the other spouse’s consent – such conduct may be treated as a basis for a fault finding. The exception is where the procedure was carried out with the knowledge and agreement of both spouses.

What does this distinction mean in practice?

A fault finding carries real legal consequences under Polish divorce law – above all in relation to maintenance entitlements between former spouses after the divorce (Article 60 of the Family and Guardianship Code). The innocent spouse has considerably broader maintenance rights against a spouse found solely at fault.

Where infertility is treated as a blameless cause of the breakdown, the affected spouse will not be burdened with sole fault. The court may grant the divorce without any fault finding, with a finding of shared fault, or with a finding that the breakdown resulted from blameless causes – depending on the full picture of the marriage.

In our experience, cases in which infertility is part of a marital conflict are among those requiring the greatest sensitivity – from the lawyer and from the court alike. The emotional burden on both parties is typically very heavy, and the path to any resolution is rarely straightforward.

FAQ

Can a diagnosis of infertility received during the marriage be a basis for divorce? The diagnosis alone is not a basis for divorce. Where the inability to have children has led to the genuine and irreversible breakdown of the emotional, physical, and economic bonds between the spouses, the court may grant a divorce. The breakdown of the marital union must be established in evidence.

Will the infertile spouse be found at fault? As a general rule, no – where the infertility is beyond their control and they did not conceal it before the marriage. The Supreme Court established as early as 1951 that infertility is a blameless cause of the breakdown of the marital union (reference C 48/51).

What if I discovered my infertility only after the wedding? This is precisely the situation the law treats as blameless. Where infertility came to light during the marriage and resulted from factors beyond the spouse’s control, that spouse will not be found at fault for the breakdown, even if the infertility contributed to it.

Can a marriage be annulled on the basis of concealed infertility? This is a complex question. Annulment of a marriage is possible, among other grounds, on the basis of deceit – where one spouse induced the other into error about circumstances of material importance to them. Concealment of infertility may potentially fall within this category, but each such case requires individual legal analysis.

Does offering adoption as an alternative affect the court’s assessment? Proposing adoption as a solution to the problem of infertility does not alter the legal assessment of the situation. The court cannot compel spouses to adopt. Where one spouse is willing to adopt and the other categorically refuses, this may be one of the circumstances indicating the depth of the breakdown of the marital union.

I am a foreign national – do these rules apply to my divorce in Poland? Yes. Where the Polish court has jurisdiction and applies Polish law, the principles described in this article apply regardless of the parties’ nationality. The concept of a “blameless cause” of the breakdown of the marital union is a specifically Polish legal category – it may not have a direct equivalent in other legal systems. If you come from a country where divorce law operates differently, understanding how Polish courts approach the question of fault is important before proceedings begin. Legal advice tailored to the specific cross-border situation is recommended.

Can both spouses be found at fault where infertility is a factor? Yes. Where the court finds that both spouses contributed to the breakdown of the marriage – for example, where one spouse’s infertility was a blameless cause but the other’s reaction to it involved conduct that also violated marital obligations – a finding of shared fault is possible. The court assesses the conduct of both parties in the round.

Read more about how Polish courts assess the breakdown of the marital union and what circumstances they take into account when making a fault finding → [link to relevant page]

Your situation is difficult and you are looking for a lawyer who understands its complexity? 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 facts and documents involved. The law firm accepts no liability for actions taken on the basis of the information contained in this article. For 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