Annulment of a marriage with a ruling of bad faith of one of the spouses: What are the legal consequences? | In Principle

The Family and Guardianship Code contains a catalogue of impediments preventing entering into a marriage. If a marriage is concluded despite the existence of impediments, the marriage is valid but can be annulled by a court ruling. Also, when declaring a marriage invalid, the court will decide whether the marriage was made in bad faith, and if so, which spouse acted in bad faith.

Pursuant to Poland’s Family and Guardianship Code, a marriage cannot be entered into by, among others:

• Persons related in a direct line of consanguinity (Art. 14 §1)
• A person who is already married (bigamy, Art. 13)
• A person suffering from mental illness or intellectual disability (Art. 12 §1).

However, in the last of these cases, the second sentence of Art. 12 §1 provides that if the individual’s condition would not threaten the marriage or the health of future children, and the person is not totally incapacitated, the court may authorise conclusion of such a marriage.

It should be noted that Art. 12 of the Family and Guardianship Code has long been criticised, and there have been calls to amend or repeal it. The critics argue that this provision is discriminatory, is based on unsupported views on inheritance of mental illnesses, and violates the Convention on the Rights of Persons with Disabilities (adopted by the United Nations General Assembly on 13 December 2006 and subsequently ratified by Poland).

In addition, a marriage cannot be properly contracted due to certain defects in the parties’ intent, for example:

• When one party is mistaken as to the identity of the other party (Art. 15¹ §1(2))
• When one of the parties is acting under unlawful coercion by the other party or a third person, if the circumstances show that the coerced party could fear serious personal danger to himself or another person (Art. 15¹ §1(3)).

The catalogue of grounds for annulment of a marriage is exhaustive, meaning that a marriage can be annulled only for the reasons listed in the Family and Guardianship Code. The grounds mentioned above are only some of the impediments to a marriage—the full catalogue is set forth in Art. 10–16 of the code.

What types of illnesses can potentially lead to an annulment?

Each of the impediments to a marriage referred to in the Family and Guardianship Code is considered based on the facts, and notions such as “mental illness” and “mistaken identity” give the courts room for interpretation. However, certain conditions, such as schizophrenia, are nearly unanimously recognised by the courts as a mental illness barring the person from entering into a marriage.

In other articles, I write more extensively about mental illness as grounds for divorce or annulment.

But what about, for example, depression? Is it regarded as a “mental illness” for purposes of Art. 12 §1 of the Family and Guardianship Code, and thus an impediment to entering into a marriage? And if one future spouse is suffering from depression but does not disclose this to the other spouse, could that lead to annulment of the marriage with a finding that the mentally ill spouse acted in bad faith?

Not every mental illness warrants annulment

In the case of annulment of a marriage due to mental illness or intellectual disability of one of the spouses, the courts recognise that not every mental disorder necessarily justifies an annulment, but only a disorder that threatens the marriage or the health of future offspring (e.g. Katowice Court of Appeal judgment of 18 June 2015, case no. I ACa 708/13).

This means there is no one sweeping answer to the question of whether a spouse’s depression could lead to annulment of the marriage. In each case, the court deciding on annulment due to mental illness of one of the spouses at the time of the marriage must examine the facts and assess whether the mental illness is impactful enough that it threatens the marriage or the health of future children.

However, to avoid the risk of annulment, persons suffering from mental disorders and wishing to marry may apply to the court for permission to enter into the marriage. Under Art. 561 §2 of the Civil Procedure Code, “Permission for a person suffering from mental illness or intellectual disability, or persons related in a direct line of consanguinity, to marry, may be granted by the court at the request of such persons.”

For a fuller understanding of the spouses’ obligations, we should point out that the head of the civil registry instructs those intending to marry on the provisions of family law regarding annulment of marriage, and the future spouses must state in writing that they are not aware of circumstances preventing the marriage (Art. 4 of the Family and Guardianship Code). Mental illness is one such circumstance. Therefore, if a prospective spouse knows of a mental illness and fails to disclose it in the statement submitted to the head of the civil registry, that is a violation of the code.

Key consequences of a judgment annulling a marriage

As a result of annulment of a marriage:

• The statutory or contractual joint property regime between the spouses ceases.
• The spouses will not be each other’s statutory heirs, nor can they claim a forced share of the other’s estate.
• Each spouse returns to his or her surname and marital status from before the marriage.

When annulling a marriage, the court is also required to rule on whether the marriage was contracted in bad faith, and if so, which spouse acted in bad faith (Art. 20 §1). This is of momentous importance, because if the court finds that one of the spouses acted in bad faith, that spouse will be treated by the law in the same way as a spouse in a divorce case who was guilty of causing the breakdown of the marriage. A spouse is considered to be in bad faith if, at the time of entering into the marriage, he or she was aware of circumstances constituting grounds for annulment (Art. 20 §2). Relevant application of the divorce rules in an annulment context has concrete implications, for example for issues of child custody and finances between the spouses.

Parliament intended for this provision to punish the behaviour of a spouse who, when entering into the marriage, knew of the existence of grounds for annulment but decided to go through with the marriage regardless. The key is the state of the spouses’ knowledge at the time of the marriage. Thus if a spouse learns of an impediment to the marriage (e.g. that the other spouse had been declared incompetent) only some time after conclusion of the marriage, the first spouse will not suffer the legal consequences of acting in bad faith.

“Good faith” vs. “bad faith”

The issue of “good” or “bad” faith is of great importance not only in family law, but also in civil law. The Civil Code presumes good faith (Art. 7: “If a law conditions legal effects on good or bad faith, good faith shall be presumed.”) In the article “‘Close relationship’ of the parties to a transaction detrimental to creditors,” we wrote on the subject of legal presumptions and their role in litigation.

Simplifying somewhat, “good faith” is a person’s belief that what they are doing is lawful and does not violate the rights of another person.

The concept of “bad faith” may be familiar to our readers, e.g. in the context of acquiring property by prescription (Civil Code Art. 172). There, the code regulates situations where a person possesses real estate without being the owner. If the holder behaves like an owner (among other things, uses the property without restriction, pays taxes on the property, and does not allow the rightful owners to access the property), the holder is in bad faith. This “bad faith” has concrete consequences, as it extends the period for obtaining title by prescription from 20 years to 30 years. The Civil Code also employs the concept of “good faith” and “bad faith” in several other places (e.g. Art. 224–228).

In the Civil Code, the distinction between good faith and bad faith serves to reward (in financial and evidentiary terms) persons who possess certain goods or perform certain legal acts under the conviction that they are duly vested with the relevant rights or obligations.

Is “bad faith” in the context of marriage annulment different from “bad faith” under the Civil Code?

Unlike under the Civil Code, in the Family and Guardianship Code it is irrelevant that the spouses exercised due diligence, that is, whether they could or should have known about the circumstances constituting an impediment to the marriage. In this regard, the Family and Guardianship Code is more liberal than the Civil Code. Therefore, bad faith cannot be attributed even to a spouse who did not know about the impediment only because they didn’t take the trouble to verify certain issues (e.g. lines of consanguinity). Under comparable circumstances, under the civil law he or she would be charged with gross negligence and held to be in bad faith. In the Family and Guardianship Code, all that matters is whether either spouse, at the time of entering into the marriage, knew of an impediment to the marriage that could be grounds for annulment.

Another difference is that in the Civil Code, the existence of bad faith must be shown by the person who derives legal consequences from a finding of bad faith (this follows from the ordinary burden of proof under Civil Code Art. 6). Under the Family and Guardianship Code, it is different: when annulling a marriage, the court itself that must examine the good faith or bad faith of the spouses.

What are the consequences of a finding that one spouse entered into the marriage in bad faith?

In the operative part of the judgment annulling a marriage, the court also decides whether the marriage was contracted in bad faith, and if so, which spouse acted in bad faith. In the subsequent part of the judgment, the court decides on parental authority over the spouses’ minor children, payment of expenses for maintenance and upbringing of the children, and the property relations between the spouses.

It may happen that not only one spouse acted in bad faith, but both of them. A spouse who entered into a marriage in bad faith is treated like a spouse guilty of marital breakdown in a divorce case (Art. 21 of the Family and Guardianship Code).

Therefore, if the ruling annulling a marriage finds that one of the spouses entered into the marriage in bad faith, this may affect the rest of the ruling (i.e. the decision on parental authority, payment of child support, and financial issues between the spouses themselves).

Example 1: Anna and Robert entered into a marriage in October 2024. Robert found out about his wife’s schizophrenia in late December 2024, after prompting his wife to undergo several psychiatric examinations. Prior to the marriage, Anna did not inform Robert of her illness, and the illness was in remission at the time of concluding the marriage and showed no obvious signs until November 2024 (when Robert, concerned, asked his spouse to undergo examination).

When entering into the marriage, Anna believed that she was not mentally ill, and also believed that at the time of the hearing—although the psychiatric expert appointed in the case found that this was itself a symptom of her illness.

In this case, the court hearing the claim for annulment brought by Robert would probably issue an annulment but also find that neither spouse entered into the marriage in bad faith.

Example 2: Agnieszka and Jan were married in May 2024. Agnieszka had seen her fiancé’s antidepressant medication during their engagement and was aware that Jan’s mood often fluctuated, in her opinion for trivial reasons. She also experienced outbursts of aggression by Jan toward her and toward his own family. But, driven by financial motivation (Jan runs a profitable enterprise with a presence in the media space), she persuaded Jan to enter into the marriage. Jan was in an extremely poor mental state during the runup to the marriage. Agnieszka also encouraged Jan not to disclose his mental health status to the civil registrar.

A few months after they were married, alarmed by concerned members of the management board of the company of which Jan is the CEO, the prosecutor brought an action under Art. 22 of the Family and Guardianship Code to annul the couple’s marriage. It is highly likely that if the court finds that Jan’s mental state threatens the marriage and future offspring (aggression against others, as well as self-harm), the court will annul the marriage and declare that Agnieszka entered the marriage in bad faith, which will give rise to certain negative financial consequences for her after the annulment (discussed below). In turn, to determine whether Jan also entered the marriage in bad faith, the court should rely on the expert opinion of a psychiatrist.

What does it mean that a spouse who entered into a marriage in bad faith is treated like a spouse guilty of marital breakdown?

A spouse who entered the marriage in bad faith must face the following negative legal consequences:

• Even if he or she is destitute, he or she cannot demand maintenance from the innocent spouse.
• He or she may be ordered to pay alimony to the innocent spouse if, as a result of the annulment, the financial situation of the innocent spouse has materially deteriorated; alimony may be ordered even if the innocent spouse is not in need.
• If, before the annulment, the spouses maintained separate assets, with equalising of their acquisitions, the court may refrain from awarding equalisation of acquisitions to the guilty spouse (or that spouse’s heirs)—however, this is a disputed issue in the jurisprudence.
• The prevailing view is that the heirs of a spouse who was in bad faith cannot demand a determination of shares in the joint property taking into account the degree to which each spouse contributed to creation of the joint property.

Conclusion

Concealing from the other spouse a mental illness present at the time of entering into the marriage can have serious consequences.

If the court annulling the marriage determines that one of the spouses entered the marriage in bad faith, the financial arrangements between the former spouses (and potentially their heirs) will be affected. It may also affect which former spouse will exercise parental authority over their children.

Aleksandra Cygan, adwokat, Dispute Resolution & Arbitration practice, Wardyński & Partners