Rozvod manželství v československém právu

The first chapter of this study on divorce in Czechoslovak law deals with some general questions. It deals first with a problem which is, according to the opinion of the author, worth of interest and which is constituted by the mode of conceiving in the legal norm, the conditions of the dissolution of the marriage. What solution does the legislator give to the legal problem, represented by the dissolution of the marriage in the countries, where such a dissolution of the marriage by a decision of the court is admitted by the law? The corresponding solutions are very different, both as far as the civil and the legal procedure regulations are concerned. The problem is that of the regulation of divorce, of the conditions under which the divorce can be granted and which are determined by the civil regulations, as well as by the legal procedure regulations concerning divorce cases. These questions have been and are resolved in many States, as well in the bourgeois law as in the socialist law. The author deals first with the example constituted by the evolution of this legal problem in Czechoslovakia, from 1919 up to the actual period. Originally, the Czechoslovak law knew on the one hand the judicial separation from table and bed and on the other hand the divorce. The legal conception of divorce, that means the expression in the law of this conception, was a typical example of a casuistic determination of conditions requested for the dissolution of marriage. The author analyses afterwards some regulations of the bill of a new general Civil code, prepared in 1933, as far as they concerned the divorce. After this introductory analysis, the author comes to the conclusion that the legal regulation of the dissolution of the marriage is always determined first of all by the political and social circumstances, that it depends on the type of the State in question. It is however influenced also by other factors, those which influence the legal regulations of family relations in general. The circumstances in question are historical, religious and often very various ones and only temporarily acting. The legal regulation of the dissolution of the marriage cannot be understood therefore separately from the legal regulation of other family relations, because it is connected in an organic way with this general regulation. The different legal regulations influence each other as far as the conception itself is concerned and sometimes even in details — principally when the historical, the social and the political conditions of the societies in question are almost identical. In such cases, not only the experiences and the principles of the juridical regulation are accepted, but sometimes, in several States, even the formulations of the corresponding legal texts become very near and similar. This phenomenon can be observed not only as far as the evolution of the bourgeois family law is concerned, but it is especially characteristic for the socialist family law in the course of its evolution. In this case, it is above all necessary to pay attention to the investigation of these problems in the family law of the USSR, where the evolution of the legal regulations concerning the dissolution of the marriage by divorce depends, during decades, on the concrete living conditions of the Soviet society. The legal regulation in question, that means the legal regulation of the divorce, was very clearly connected in this case with the regulation of the origin of the marriage and the global conception of marriage. In spite of the naturally complex character of the evolution of legal regulations concerning these problems, the Soviet family law brought nevertheless a great deal of valuable experience for the formation of a socialist family law; practically all the Codes of the people’s democracies were based on this experience. The author deals further with some general features, as well as with some interesting and particular phenomena in the evolution of the legal regulation of divorce during the original period of the people’s democracies and of the construction of socialism. From this standpoint of view, very interesting are the years 1945—1950, as far as the different people’s democracies are concerned. Two periods can be clearly distinguished. During the first period, beginning just after the end of the second World War, a tendency can be observed in favour of a large relaxation of divorce; this tendency is obvious in the legal expression of the conditions requested for divorce. So, for instance, has been introduced at that time the so called preconcerted divorce. This period of evolution was obviously historically necessary. The second, following period, is characteristic by a retreat from the tendency favourable to an easy divorce; so, for instance, the regulation of the preconcerted divorce is abandoned, the legislator retreats from the casuistic method and on the contrary, very broad, generalizing formulations are adopted in order to express the legal conditions requested for the dissolution of the marriage. It is during this period also that another characteristic feature appears: a considerable mutual approach of the legal regulations concerning divorce in the different socialist and people’s democratic States. The adopted solution gives the possibility to individualize every case during the debates in court; the debates in court are not formal in such a case, they proceed in fact in a way which corresponds to the principle of the ascertainment of the material (objective) truth. This tendency becomes naturally manifest also in the course of the actual period in the Czechoslovak legal regulation of the divorce. In the second chapter of the study, the author examines the pre-conditions of the divorce according to the Czechoslovak civil as well as legal procedure regulations. The author analyses first of all the principal general question, which means, first of all, the theoretical interpretation of the notion “rift in the marriage”. The notion of “rift in the marriage” and its interpretation from the viewpoint of the Czechoslovak legal regulation concerning divorce, is very important. The author considers that, from the viewpoint of the legislative expression and conception, this rift always signifies an existing, contemporary and real state of things, caused by certain causes. The rift itself represents afterwards the cause of the fact that the marriage cannot fulfil its social aim. For that reason, the proper “reason for the divorce” is in fact always constituted by the rift in the marriage. During the debates in court the decisive factor is therefore the examination of the said rift and the examination of the social influence this rift exercises on the marriage. The author deals afterwards in detail first with the conditions of the divorce, as requested by the rules of the civil law, and later also with the involved questions concerning legal procedure. She makes a comparison between the regulation concerning these problems, as contained in the previous Act and the corresponding regulation, as contained in the Family Code No. 94 1963 of the Bui.; she points to the fact that the new Family Code brought about many differences. She considers the rejection of the action for divorce as being one of the most important problems; she examines the theoretical aspect of the problem from the viewpoint of the interpretation of the new Act, as well as some practical questions which result from it and which appear in the process of the application of these regulations by the courts. Also in the domain of the rules concerning legal procedure, the new regulation, based on the Code of Civil Procedure, brought about a series of new theoretical and practical problems. This concerns first of all the so called conciliatory procedure between husband and wife. The author considers that this procedure could have a practical importance only if it would have a forcible impact from its very beginning. The court should therefore proceed having certain minimum knowledge of the facts concerning the concrete case. It is however not excluded that this will not always be the case. It must be feared in a certain way that the new regulation, which established this new condition of legal procedure for the dissolution of the marriage, consisting in the conciliatory procedure between husband and wife, will practically be considered only as a means by which the divorce case is prolonged. The third chapter deals with problems involved by the decisions of the courts concerning the children under age in case of the divorce of their parents. The divorce becomes undoubtedly a major social question, where there are children under age, originated from the marriage. This is still more important in view of the fact that in Czechoslovakia, out of the total number of divorces, prevails the number of cases, where the divorce means the dissolution of a marriage with children under age. The questions connected with those problems are in general very troublesome for the society. Already the situation itself of a disturbance in the personal relations between husband and wife is, as a conflict situation, not favourable for the interests of the child. The means, by which the child can be protected against the rift in the marriage of the parents, are in fact minimum. Some possibilities exist to exerce an influence on the parents, but all these are very limited means, which bring about a remedy only in a very limited number of cases. The law provides therefore certain means designed to soften at least the consequences of the rift or of the divorce of the child’s parents. The law provides for the case of the divorce of parents special means designed to the protection of the rights of the children under age, originated from the marriage in question. If the court comes to the conclusion that it will dissolve the marriage by divorce, it must always resolve also the question of the situation of the child for the time after the divorce of the parents and it must fix for that time the exercise of rights and duties of the parents towards their child. The proceedings concerning the rights and the duties of the parents towards their child during the time after the divorce, represent often the most difficult section of the divorce case. The best solution is in every respect if the parents arrange all those questions by a mutual agreement, approved by the Court. The law prefers therefore such a solution. If, however, such an agreement is impossible, it is necessary that the court should take itself a corresponding decision. The problems involved in such a case are extremely various and are as well theoretical as practical. The problems treated in that respect by the author in the present study concern principally the question which consists to know to whom of the parents the Court will commit the child’s education, the question of the determination of the maintenance allowances for the child and the question of the regulation of the relations between the child and the parent. The last chapter is devoted to the problem concerning the blame for the rift in the marriage. The experience acquired during the validity of the preceeding Act on family law, that means during the years 1950-1962, has shown that the statement as to guilt had to be made in about 50 p.c. of all the divorce cases. It is obvious therefore that the blame for the divorce has been a conception quite deep-rooted in our population. It is necessary to consider on the other hand the fact — and the legislator based obviously himself on this consideration in the elaboration of the new Act, which already completely omits the conception of the blame for the divorce — that in matrimonial relations it is sometimes very difficult to determine exactly up to what point reaches legal duty and from where begins the ethical relation and the ethical duties based on it. Guilt is however, if contained in a legal norm, a legal category and it can therefore refer only to the relation of the acting person to the results of the acting, provided that the acting in question constitutes a violation of some legal duty. The distinction between the different forms of guilt, practical in the other juridical branches, is not practical as far as the blame of rift in the marriage is concerned. In the previous Act a certain legal importance has been attached as well to the blame of the rift in the marriage - for the question of the admissibility of the divorce under certain specific conditions — as to the statement as to the blame for the divorce. It is why the new Act, which does not know the notion of guilt in connection with divorce, has resolved differently also those problems. As for the admissibility of the divorce, the legislator considers as being the basis of this question the examination of the problems involved by the rift in the relations between the spouses; he does not bind himself anymore by the ascertainment of the conduct of the spouses in connection with the qualification of such a conduct in the sense of the ascertainment of a guilt. As far as certain juridical consequences are concerned, which have been linked up by the previous Act to the statement as to the blame for the divorce and which have been first of all the problems concerning the maintenance allowances after the divorce, they are also regulated differently. The author concentrates herself in this respect on the analysis of the problems concerning the maintenance allowances after the divorce, first of all on some practical aspects of the decisions taken by the courts in this domain. It results from this analysis, that the courts will now have to assemble, in a series of cases, far more basic materials for their decision than it was necessary before, when the basic criterion for the decision on the adjudgement or the non-adjudgement of maintenance allowances has been the previous statement concerning the blame for the divorce of the marriage.