Family cases, especially those involving children, are always sensitive and require empathy from both the parties’ lawyers and the court.

When the relationship between the parties deteriorated and the parties began to live separately temporarily, the woman decided to terminate the pregnancy without notifying the spouse and then filed for divorce. It was only in the course of the proceedings that the spouse became aware of this fact. There are no aspects of violence, infidelity, financial hardship in the case.

Faced with such a situation, the question arose as to how such actions of a woman in relation to family law should be assessed from the perspective of spousal loyalty and other responsibilities. It is clear that in this situation there is a conflict between a woman’s right to choose whether the pregnancy will be maintained or terminated and the rights of the future parent and the duty of loyalty between the spouses, according to which all decisions concerning the family should be decided by both parties. The possibility for spouses to have a child and the choice of a woman to undergo an interventional procedure which may affect her ability to have children will certainly be a family issue in the future.

TERMINATION OF PREGNANCY, when it is performed voluntarily by a woman in a health care institution of a specialist who has the right to perform such procedures, is legal until 12 weeks of pregnancy and is not prohibited under the laws of the Republic of Lithuania. It is undeniable that a woman has the right, independently, under duress or pressure, to decide, in accordance with the law, how many, when and how often to have children and whether to have them at all. There is no discussion in this regard. The question arises as to whether such a self-determination on the part of a woman is the basis for admitting her guilt for the dissolution of the marriage and a breach of her obligations as a spouse.

In order to find an answer to such a question, it is important to examine the provisions of the Civil Code of the Republic of Lithuania related to the rights and obligations of spouses to each other. As the Supreme Court of Lithuania has repeatedly pointed out (for example the ruling of 27 May 2010 in civil case No. 3K-3-254/2010) Articles 3.26, 3.27, 3.28 of the Civil Code provide that after marriage, the spouses acquire rights and obligations, must be loyal to each other, respect each other, support each other morally and materially, to the best of their ability, and contribute to the common needs of the family.

People enter into a family relationship as a basis for living together.

• THE DUTY OF LOYALTY OF THE SPOUSE means that the spouse must always act in the interests of the other spouse, the whole family, both inside and outside the family, and may not conflict with the personal interests of the other spouse or family.
• THE OBLIGATION OF MUTUAL ASSISTANCE means that the spouses must respect each other’s opinions, be faithful to each other, and deal with all matters of family life by mutual agreement, not alone.
• MORAL AND MATERIAL SUPPORT means that spouses must take care of each other: both materially, physically and psychologically.

Article 3.60 (2) of the Civil Code provides that a spouse is to be found guilty of divorce if he or she has substantially infringed his or her obligations as a spouse, as a result of which the cohabitation of the spouses has become impossible. Spousal conduct which is unacceptable from the point of view of law and morality shall be considered a material breach of the spouse’s duties (for example Order of the Supreme Court of Lithuania of 10 April 2015 in civil case No. 3K-3-225-686/2015).

It is considered that, in the situation in question, a woman, without the knowledge of her spouse, by making such a decision, she is in breach of her duty of loyalty not only to the extent that it interrupts the life she has created with her spouse but also to the extent that she is risking her health during the abortion procedure and the possibility of conceiving and carrying a baby in the future.

Meanwhile, according to the case law of the Court of Cassation, the court hearing a divorce case has a duty to explain the specific reasons that led to the divorce, as the determination / attribution of guilt to a particular spouse or to both spouses also depends on it.

In determining the causes of the divorce, the court must take into account the relationship between the spouses before the actual divorce, the behavior of each spouse in maintaining the marriage when the relationship between them has deteriorated and other significant objective and subjective circumstances (for example Order of the Supreme Court of Lithuania of 19 February 2016 in civil case No. 3K-3-99-969/2016, point 14).

Based on such regulation of the Civil Code and case law, it is considered the spouse’s sole decision to terminate the pregnancy without the spouse’s knowledge in the absence of other additional circumstances, such as violence, infidelity, the spouse’s negative attitude towards pregnancy, medical problems, difficult economic situation, etc., shall be considered a breach of the above obligations. Therefore, if the court finds that marital life has become impossible precisely because of such a single choice of the spouse, she could be found guilty of the dissolution of the marriage.

Conversely, finding that a spouse has failed to fulfill his duty of loyalty to support and care for a pregnant woman and if that is why the spouse made such a difficult decision may lead to a finding that the spouse is guilty of divorce.

ARTICLE PREPARED BY:

Černiauskas and Partners Law Firm Advocate Egidija Vėbraitė and Advocate’s assistant Šarūnė Gailiūnaitė