Zdzisław Zarzycki

The reviewed book by Dr. Jozef Koredczuk entitled The inheritance of real estate in light of the caselaw of the Lviv Appellate Circuit courts in the Second Polish Republic is a monograph. It is a pioneer elaboration in the history of Polish law. The theme of the book focuses on cases regulated primarily by the Austrian Civil Code (ABGB) of 1811. This Code was binding in the Polish territory of the so-called Galicia (today, the Malopolska region) for almost 135 years, from 1812 until the end of 1946. The author narrows his research down to the jurisdiction of the Lvi’v appellate courts between 1918 and 1939. The author does not go directly to court records, but to previously published judicial decisions and their justifications. The researcher’s subject of interest is the inheritance of real estate, and thus leaving inheritance of chattels and rights behind.

Piotr Pomianowski’s book is the first monograph in Polish historical-legal literature, which verifies the previous views on the number of adjudicated divorces in the territory of Poland between 1808 and 1852. It results from the analysis of the court records that show that a little over two thousand divorces were adjudicated in the area of the Duchy of Warsaw and Congress Poland, as well as in the Republic of Cracow pursuant to the Napoleonic Code. Up till now the literature had included erroneous information that there were only several or a few dozens of such divorces adjudicated.

The facts established by the book’s author show that in the first half of the 19^th century divorce proceedings were more frequently initiated by women than by men (70% to 30% in Kalisz and Kielce, as well as 59% to 41% in Warsaw). The average divorcéwas 38.7 years old and the divorcée was 30.8; in about 80% of the cases the husband was older than the wife, and in 20% it was vice versa; however, the average age difference between divorcees was 10 years. The average marital period of divorcees in Warsaw communes was 8.5 years, and 12 years for those in Płock. The representatives of the following professions dominated among divorcees: factory owners, craftsmen, and those earning a living in industry (23.6%), next came government officials, teachers, and representatives of liberal professions (22.5%), and then heirs of landed estates and tenants (10%). Servants, journeymen, and peasants made up about 13.6% of the defendants.

Pomianowski’s book merits a very positive assessment. The analysis of the institution and the phenomenon of divorce, as well as the description of the research results are on a high level. The elaboration should interest not only historians of law but also scientists of other specializations, for instance researchers of the history of demography and population statistics, social culture and morals, population migrations, women’s rights, etc.

After regaining independence in 1918, Poland inherited five different post-partition legal orders from the 19th century, regulating personal matrimony law on its territory, i.e. Prussian, Austrian, Hungarian, Russian and Polish from the times of the Kingdom of Poland. This situation required urgent reform and taking codification steps. The codification task was entrusted to the Codification Commission, established in 1919. Its result was the governmental matrimony law Project adopted in 1929, known as Lutostański’s Project. Unfortunately, it was not passed by the Sejm. It happened because of the opposition of the Catholic Church and other conservative forces. The reasons for this state of affairs were too modern, for those times, legal solutions contained therein, and above all, the possibility of obtaining a divorce. Many legal solutions included in this project can be found in modern matrimony law, i.e. almost a hundred years later. Nevertheless, the very idea of codification and the adopted main principles of matrimony law should be considered a success of Polish legal thought. The more so because many of these solutions were used in post-war Poland in the Decree on matrimony law in 1945 and are known in contemporary matrimony law.

Dominial jurisdiction in the demesne of the Cistercian Monastery in Koprzywnica underwent a long and complicated evolution from the foundation of the abbey in 1185 to its dissolution in 1819. For over 6 centuries this monastery owned the town of Koprzywnica all the time, and the towns of Jasło and Frysztak temporarily and almost 60 villages and their parts in different periods. Privileges and judicial immunities granted by the ruling monarchs (in 1262, 1267, 1284, 1308, 1360 and later) were of a fundamental importance for development of the dominial jurisdiction of the abbot of Koprzywnica. A kind of exception in the organization of the dominial jurisdiction was the self-governmental structure in the town of Koprzywnica located under German Law (Magdeburg Law) under the privilege of the Duke Bolesław V the Chaste in 1267. However, the abbot did not like the independent judicial position of the head of the commune in Koprzywnica and village representatives in the monastery villages. The head of the commune and village representatives were often confidants for inhabitants’ matters, from where they came from rather than interests of the abbot or the monastery. These circumstances were, among others, the reason that at the turn of the 14th and the 15th centuries the monastery authorities brought to annihilation of self-governmental jurisdiction in their demesne and introduced judges-clerks completely controlled by them. It was the institution of a judicial head of a commune. The abbot’s subjects were not pleased with such a solution. They complained about the judicial activity of the abbot and his clerks even to the king himself. Most often ineffectively. In principle, this state of affairs lasted until the judicial reforms at the turn of the 18th and 19th centuries. At that time the Austrian state authorities and the authorities of the Duchy of Warsaw, following the movement of the Enlightenment, allowed to replace the dominial jurisdiction of the abbot and his clerks with the independent state courts (and judges). Yet, the transformation process of this dominial jurisdiction into the common one was not completed because the monastery in Koprzywnica was dissolved by the Russian authorities in 1819.

Among those who claimed a divorce the years 1918–1945 in the District Court in Krakow, were mainly those for whom it was the first marriage that they wished to dissolve. The number of other cases, that is spouses for whom it was the second or else a successive marriage, amounted to around 13%. Generally, we can talk of five (or maybe six) cases of divorce proceedings between spouses whose previous marriages ceased to exist in the effect of a divorce. Taking into consideration the sex of the spouses claiming for divorce, one should observe that in three cases it was women whose previous marriages had ceased in the effect of a divorce, who were now asking for divorce (Cg I 687/21, I Cg 259/30 and I C 301/43), in two cases it was men (I C 1163/35, I C 114/40) and in one case, both spouses had already been divorced before (I C 442/39). It turns out that five out of six cases had ended in a divorce judgment (I Cg 259/30, I C 1163/35, I C 442/39, I C 301/43 and I C 114/40), and one case ended in a withdrawal of the petition for divorce and a discontinuance of legal proceedings (Cg I 687/21).

Austrian divorce law was in force in the territory of the former region of Galicia until the end of 1945. The possibility of seeking a civil divorce was determined by the internal law of the church that the betrothed couple belonged to on the wedding day. Thus, divorce was outlawed both for people of the Roman Catholic confession [§ 111(1) ABGB] and for married couples where even one of the spouses confessed the Roman Catholic religion at the time of their wedding to a non-Catholic Christian [§ 111(2) ABGB]. Not even a religious conversion on the part of the Catholic after the date of the wedding could create the possibility for the couple to obtain a divorce. In practice, Catholic residents of Małopolska resorted to “divorce migration” to more lenient legal jurisdictions. In any case, a divorce dispute was adjudicated before common courts according to state procedural rules. Divorce proceedings could be initiated in two ways, i.e. by unilateral request of one of the spouses, or by joint request of both spouses. Divorce in Jewish marriage was subject to certain legal differences, and could also be initiated in two ways, i.e. by the voluntary, uncontested request of both spouses [§§ 133–134 ABGB] or by way of a divorce application filed by the husband [§ 135(1) ABGB]. In both cases, the procedures were aimed at terminating the marriage by the husband’s presenting the wife with a so-called bill of divorce. Different civil proceedings regulated divorce disputes in Krakow in the period described (1918- 1945), i.e. the Austrian proceedings until the end of 1932 and the Polish proceedings of 1930 thereafter. 

The paper is based on the search query as made in the State Archives in Cracow, and specifically on the analysis of files of the Cracow Circuit Court covering the years 1918–1945. In both discussed trials whose objective was the separation of spouses these were the husbands who filed the application. They were Catholics with the University educational background and both were the sons of the professors of law the inter-war period. In the first case, supplied with the court reference no.: SOKC 4334 (Cg XI f 713/21) it took the trial almost three years and a half (from 31 May 1921 until 17 September 1924) to be ended, the case being examined in the three instances. The Cracow Circuit Court, after 6 hearing sessions, dismissed the application for the separation. The Appellate Court upheld this decision while the Supreme Court in which the motion for the revision was lodged unexpectedly found the decision justified and adjudicated on the separation of spouses on the basis of the fault that it attributed to both parties.

The files of the second trial were supplied with the reference no.: SOKC 797 (I C 1323/34). It took the trial 17 months (from 8 November 1934 until 21 April 1936) to end, after four hearing sessions. The decision amounted to the suspension of legal proceedings. For 3 years that followed the parties did not apply for the resuming of the proceedings. As a result the Cracow Circuit Court issued, on the 18th of March 1941, the “On Behalf of the Law” decision on the discontinuance of the suspended proceedings for the separation, thereby fulfilling the requirement of legalism. These proceedings could be classified among those that were most time consuming, the case being tried in one instance. In view of the fact that divorces were not admitted on the basis of the ABGB, the separation trials as instituted by Catholic spouses in Polonia Minora region were decidedly the most frequent method that was applied to deal with difficult matrimonial issues by married couples.