Związek pozamałżeński jako podstawa orzeczenia rozwodu w świetle orzecznictwa sądów Księstwa Warszawskiego

Abstract

This paper explores extramarital affair as a ground for civil divorce in the practice of courts of the Duchy of Warsaw. In 1808 the Napoleonic Code was enforced on this territory. Under the rules of the Code Civil a couple could petition for a divorce with mutual consent (article 233). There were also three grounds entitling one of spouses to demand a divorce, when it was possible to attribute fault to the second party. In the case of the husband’s infidelity, the wife could demand a divorce only when he brought his concubine into their common residence (article 230). On the other hand, the husband could demand a divorce as a result of every act of his wife’s adultery (article 229). Moreover, each spouse could demand a divorce for outrageous conduct, ill-usage or grievous injuries exercised by the second spouse (article 231). Condemnation of one of the married parties to infamous punishment was also a ground for a divorce to the second party (article 232). In spite of discrimination of women in the case of adultery, more than 75% of divorce judgments were issued as a result of actions filed by wives. It was caused by the Polish Courts which gave a broad interpretation to the article 230 in their jurisprudence. Each act of husbands’ adultery in a common residence was treated as a ground for a divorce, although, according to article the 230, a wife had to prove that her husband lived with his concubine in conjugal house. The husbands’ adultery can be easily distinguished from the wives’ kind. Generally, men committed adultery because of lust. Female infidelity was usually connected with leaving a husband. Husbands often committed adultery with maids, whereas wives – with soldiers.