Recognition of same-sex unions in Poland

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Legal status of same-sex unions
Marriage
Performed
Recognized
  1. Performed in 13 states and Mexico City, and recognized by all states in such cases
  2. Performed in the Netherlands proper, and partially recognized by Aruba, Curaçao and Sint Maarten in such cases
  3. Neither performed nor recognized in Niue, Tokelau or the Cook Islands
  4. Neither performed nor recognized in Northern Ireland, the dependency of Sark or the Caribbean territories
  5. Neither performed nor recognized in American Samoa or some tribal jurisdictions
  6. Limited to residency rights for foreign spouses of citizens (EU) or legal residents (China)
  7. Registration open in all counties except Hualien, Penghu, Taitung and Yunlin

* Not yet in effect, but automatic deadline set by judicial body for same-sex marriage to become legal

LGBT portal

Poland does not legally recognize same-sex unions, either in the form of marriage or civil unions. In 2012, the Supreme Court ruled that same-sex couples have limited legal rights in regards to the tenancy of a shared household. A few laws also guarantee certain limited rights for unmarried couples, including couples of the same sex. Same-sex spouses also have access to residency rights under EU law.

Article 18 of the Polish Constitution was previously interpreted as banning same-sex marriage,[1][2] but in February 2019 a court in Warsaw ruled in a landmark decision that this provision does not explicitly limit marriage to opposite-sex couples.[3]

Unregistered cohabitation[edit]

While Poland does not have a specific law on cohabitation, there are some provisions in various legal acts or Supreme Court rulings that recognise relations between unmarried partners and grant them specific rights and obligations. For example, Article 115(11) of the Penal Code (Polish: Kodeks karny) uses the term "the closest person", which covers romantic relations that are not legally formalised. The status of "the closest person" gives the right of refusal to testify against the partner. The term "partner" is not explicitly defined. A March 2016 landmark decision of the Supreme Court regarding the rights of same-sex partners confirmed that the wording also includes same-sex partners.[4]

Laws regarding same-sex partnerships in Europe
  Marriage¹
  Foreign marriages recognized¹
  Other type of partnership¹
  Limited legal recognition¹
  Unrecognized
  Constitution limits marriage to opposite-sex couples

¹ May include recent laws or court decisions which have created legal recognition of same-sex relationships, but which have not entered into effect yet.

Other laws also provide limited recognition for same-sex couples. For instance, since 2004, when one partner is entitled to social benefits, the income of the other partner is also taken into consideration. Under Article 6.14 of the Social Aid Act of 12 March 2004 (Polish: Ustawa z dnia 12 marca 2004 r. o pomocy społecznej), entitlement to social benefits is dependent on the income per person in a family. The term "family" is used in the act to refer to people who are married, in a de facto partnership, living together and have a common household. Since 2008, if one partner suffers an accident or is seriously ill, the other partner is considered as a next of kin for medical purposes. Under Article 3.1(2) of the Patients' Rights Act of 6 November 2008 (Polish: Ustawa o prawach pacjenta i Rzeczniku Praw Pacjenta), the definition of "next of kin" (Polish: osoba bliska) includes a "person in a durable partnership" (Polish: osoba wtrwałym pożyciu).[5][6][7][8][9][10]

A resolution of the Supreme Court from 28 November 2012 (III CZP 65/12) on the interpretation of the term "a person who has lived actually in cohabitation with the tenant" was issued with regard to the case of a gay man who was the partner of a deceased person, the main tenant of the apartment. The Court interpreted the law in a way that recognised the surviving partner as authorised to take over the right to tenancy. The Court stated that the person actually remaining in cohabitation with the tenant - in the meaning of Article 691 § 1 of the Civil Code - is a person connected with the tenant by a bond of emotional, physical and economic nature. This also includes a person of the same sex.[11][12] Previously, in March 2010, the European Court of Human Rights ruled, in the case of Kozak v. Poland, that LGBT people have the right to inherit from their partners.[13]

In one case in 2011, a Polish writer, Izabela Filipiak, managed to get a residency card for her American partner.[14]

In 2018, a lesbian couple was granted the right to register their British-born son as their own.[15][16]

Limited symbolic recognition[edit]

In 2004, the Warsaw Municipal Transport Authority's decision to allow cohabiting partners of gay and lesbian employees to travel free on the city's public transport system was the first case of recognition of same-sex couples in Poland. In 2007, a decision of Chorzów’s City Center of Social Assistance recognized same-sex relationships. The decision recognized, that according to law, persons living in a common relationship in the same household are a family, so that the partner is obligated to care for the first one.

At the end of 2010, a court in Złotów decided that the same-sex partner of a woman who had died was entitled to continue the lease on their communal apartment. The municipality appealed the verdict, but the District Court in Poznań rejected the appeal. Thus, the decision of the Złotów court became final. "The court found that these women actually remained in a stable partnership. Any other interpretation would lead to discrimination based on sexual orientation," said the president of the District Court in Złotów, Adam Jutrzenka-Trzebiatowski.[17]

2018 European Court of Justice ruling[edit]

On 5 June 2018, the European Court of Justice (ECJ) ruled that European Union member states (including Poland) must recognise the freedom of movement and residency rights of same-sex spouses, provided one partner is an EU citizen.[18][19][20] The Court ruled that EU member states may choose whether or not to allow same-sex marriage, but they cannot obstruct the freedom of residence of an EU citizen and their spouse. Furthermore, the Court ruled that the term "spouse" is gender-neutral, and that it does not necessarily imply a person of the opposite sex.[21][22]

Registered partnerships[edit]

Before 2005[edit]

The first legislative proposal to recognise unregistered cohabiting couples (including same-sex couples) was proposed in 2002, but did not advance.[23]

In 2004, under a left-wing Government, the Senate approved a bill allowing gay and lesbian couples to register their relationships as civil unions. The civil unions proposed by the bill would have given couples a range of benefits, protections and responsibilities currently granted only to opposite-sex married couples, including pension funds, joint tax and death-related benefits, but did not grant the right to adopt children. The bill was passed with 38 votes in favour, 23 against and 15 abstentions. It lapsed due to the 2005 general election.[24]

Only two parties, the Democratic Left Alliance-Labour Union (SLD) and the Social Democracy of Poland (both social democratic parties) supported the bill, while Civic Platform (PO), the League of Polish Families and Law and Justice (PiS) opposed it. Samoobrona was neutral, and the Polish People's Party (PSL) did not take a position.[25]

2005-2011[edit]

A new registered partnership bill was proposed to the Government of Civic Platform and the Polish People's Party in late 2007, but was rejected by the Government. In 2008, a new fourth bill on registered partnerships was being prepared by the opposition SLD, but stood no chance of being passed in the Parliament and was therefore never introduced.[26]

In June 2009, gay and lesbian organisations submitted a petition calling for registered partnerships to the Speaker of the Sejm, Bronisław Komorowski (PO).[27] By this point, some politicians from parties opposed to same-sex unions, including Jerzy Buzek (PO) and Michał Kamiński (PiS), had expressed support for certain rights being granted to same-sex couples.[28] Attitudes from some representatives of the church had also changed.[29] In January 2010, the opposition SLD, in consultation with gay and lesbian organisations, prepared a new draft law on registered partnerships, modelled on the bill approved by the Senate in 2004 and similar to the French pacte civil de solidarité (PACS).[30] However, the bill had no chance of getting passed in Parliament as PO, PiS and PSL announced that they would not support the bill.[31][32][33][34]

On 17 May 2011, the SLD presented a draft law on registered partnership, which would regulate the relationships of same-sex and opposite-sex unmarried couples, similar to the French PACS law.[35][36] Agnieszka Pomaska, Deputy Secretary General of the PO, commented that it was time to discuss the legal regulation of informal relationships, both opposite-sex and same-sex, and that PO was open to discussing registered partnerships.[35][37] Prime Minister of Poland Donald Tusk (PO) announced that the law on registered partnerships would be passed at the beginning of the next term of the Sejm,[38] but Speaker of the Sejm Grzegorz Schetyna (PO) said that a vote would not be put to Parliament during that legislative term.[39] However, after receiving a petition in favour of the registered partnership bill signed by 23,500 people, Speaker Schetyna declared that he would probably submit the bill for its first reading in Parliament after 10 July 2011.[40] Krzysztof Tyszkiewicz, spokesman of the PO parliamentary group, accounced that the PO would support the SLD bill, but only after the parliamentary elections in October 2011.[41]

In July 2011, the Social and Family Policy Commission and the Justice and Human Rights Commission held a first reading of the registered partnership bill. Out of the 67 (32 PO, 23 PiS, 7 SLD, 2 PSL, 3 non-attached) members of the committees, 29 voted in favour, 10 voted against and 3 abstained.[42]

After the bill passed its first reading in the Sejm,[43] the Supreme Court of Poland expressed its opinion on 9 October 2011, before the elections. The Court undermined any further progress of the bill, highlighting numerous legal deficiencies. It also stated that the registration of cohabiting opposite-sex couples was incompatible with Article 18 of the Polish Constitution. Regarding the relationships of same-sex couples, it stated that the admissibility and scope of any statutory regulation required an analysis taking into account international legal obligations, and considering the implications of recent judgements by the European Court of Human Rights.[44] According to Professor Miroslaw Wyrzykowski, head of the Department of Human Rights at the University of Warsaw's Faculty of Law, and a former judge of the Polish Constitutional Court, the Constitution requires the introduction of civil partnerships.[45] In the end, the bill was never voted upon by Parliament, and therefore expired.

2011-2015[edit]

After the parliamentary elections of 9 October 2011, Janusz Palikot, the leader of the Palikot Movement (RP), declared that a bill on civil partnerships would be one of the first draft laws submitted to the new Parliament.[46] Leszek Miller, head of the SLD parliamentary grouping, announced that they would reintroduce the same bill as had been introduced in the previous Parliament.[47] Rafał Grupiński, vice president of the PO parliamentary grouping, announced that its members would have a free vote on the draft law. Stanisław Żelichowski, head of the PSL parliamentary grouping, said that he expected the SLD's bill to be mostly ignored by Parliament.[48]

A new draft law based on the one adopted by the Senate in 2004 (similar to the Scandinavian model, not the French PACS), applying to same-sex couples only, would be prepared and submitted to Parliament in early December 2011, as a joint initiative of the SLD and the RP. Some members of PO also declared their support. PSL did not state a firm position on the issue, but was believed to be in support. Only PiS were opposed, though some of its members, such as Witold Waszczykowski, signalled their support.[49][50][51]

Polish MEP Agnieszka Kozlowska-Rajewicz described the adoption of the law on civil partnerships as one of her priorities, though she added that the ideal would be the introduction of same-sex marriage.[52] She also said that civil partnerships similar to the French PACS were the form of unions over which there was agreement at the time, and that the law would be enacted in that parliamentary term.[53] Separately, a government report, entitled Poland 2030 Third wave of modernity – Long-term National Development Strategy, stated that an objective for the five year period to 2015 should be the equalization of rights for stable unmarried couples.[54] Arthur Dunin (PO) commented that many PO parliamentarians saw the need for such a partnership law, provided that it did not go too far. Such a law, which would enable the legal recognition of both same-sex and opposite-sex couples, would be similar to the French PACS, and would also have the support of conservative members of the PO.[55]

On 13 January 2012, the SLD and RP jointly presented two draft laws on civil partnerships to the Sejm. The first bill was the same that had failed in the previous Sejm, similar to the French PACS law (for same-sex and opposite-sex couples), whereas the second bill was similar to the Scandinavian model (for same-sex couples only). The PO intended to introduce its own bill, similar to the French PACS law but including some differences between civil unions and marriages, as required for consistency with the Constitution.[56][57][58][59][60][61] On 28 June, the Legislative Committee expressed the opinion that both bills were unconstitutional. On 24 July, the Sejm voted against the submission for a first reading on the two bills. One day later, the Civic Platform (PO) proposed its own bill on "civil partnership agreements", which was submitted to the Parliament in September.[62]

All three drafts were rejected on 25 January 2013 by the plenary session of the Sejm; the most narrow defeat was for the bill proposed by Civic Platform, which lost by 211-228.[63]

2015-present[edit]

Following the 2015 parliamentary elections, the socially conservative PiS, which is opposed to registered partnerships, formed the new Government.

A new registered partnership bill was proposed on 12 February 2018 by the Modern party.[64][65][66] It was introduced to the Sejm in April 2018.[67]

Same-sex marriage[edit]

Article 18 of the Constitution of Poland states that:[68]

Małżeństwo jako związek kobiety i mężczyzny, rodzina, macierzyństwo i rodzicielstwo znajdują się pod ochroną i opieką Rzeczypospolitej Polskiej.
English translation: Marriage, being a union of a man and a woman, as well as the family, motherhood and parenthood, shall be placed under the protection and care of the Republic of Poland.

The article was adopted in 1997. Since then, there has been much debate over whether the article bans same-sex marriage or not. Some media and lawyers have reported it as a constitutional ban, while others have argued that the wording is vague, and while promoting opposite-sex marriages, does not in itself ban same-sex marriage. Several religious organisations have argued that the wording should be interpreted as a constitutional ban on same-sex marriage.[69]

Seeking to test the legal wording, a same-sex couple, vloggers Jakub and Dawid, applied to have their Portuguese marriage recognised. After their application was rejected by the Civil Registry in Warsaw, they filed suit. Their case was rejected by a lower court, but they appealed. On 11 February 2019, the Wojewódzki Sąd Administracyjny w Warszawie, the higher administrative court for the Masovian Voivodeship, ruled that the Polish Constitution does not ban same-sex marriage. In its judgement, the court refused to recognize the marriage, as there are no legal provisions for same-sex marriage in Poland, but also ruled that Polish constitutional law does not ban such marriages.[3] This means that same-sex marriage is neither banned nor allowed by the Polish Constitution. Therefore, the Sejm can amend statutory law to legalize same-sex marriage or partnerships without breaching the Constitution.[70]

Public opinion[edit]

Social attitudes towards the recognition of same-sex couples and their families seem to be changing as Poles are becoming more accepting, based on recent opinion polls. The most recent poll (conducted in 2017 by Ipsos) found that a majority of Poles support same-sex registered partnerships. A large majority of Poles, however, still oppose same-sex marriage and adoption, though this number is slowly decreasing. Other polls have also found that a majority of Poles support recognising same-sex marriages performed abroad and a large majority support certain rights such as obtaining medical information or inheriting.

A 2010 study published in the newspaper Rzeczpospolita revealed that Poles overwhelmingly opposed same-sex marriage and the adoption of children by same-sex couples. 80% of Poles opposed same-sex marriage and 93% of Poles opposed same-sex adoption.[71]

In 2011, according to a poll by TNS Polska, 54% of Poles supported same-sex partnerships and 27% supported same-sex marriage.[72]

The 2015 Eurobarometer found that 28% of Poles thought that same-sex marriage should be allowed throughout Europe, 61% were against.[73] This was an 11% increase from the previous Eurobarometer, which was conducted in 2006. Additionally, the number of those who "strongly opposed" same-sex marriage almost halved from 2006 to 2015.

CBOS polls[edit]

Support for the recognition of same-sex relationships 2001[74] 2002[75] 2003[76] 2005[77] 2008[78] 2010[79] 2011[80] 2013[81] 2017[82]
YES NO YES NO YES NO YES NO YES NO YES NO YES NO YES NO YES NO
"registered partnerships" 15% 76% 34% 56% 46% 44% 41% 48% 45% 47% 33% 60% 36% 56%
"same-sex marriages" 24% 69% 22% 72% 18% 76% 16% 78% 25% 65% 26% 68% 30% 64%
"adoption rights" 8% 84% 8% 84% 6% 90% 6% 90% 6% 89% 8% 87% 11% 84%

The 2013 poll found that support for same-sex registered partnerships varied significantly by political parties. 68% of Your Movement (formerly RP) voters supported registered partnerships, 56% of SLD voters, 50% of PO voters, 24% of PSL voters and 15% of PiS voters.

Support for registered partnerships is higher among young people, people who have a higher education, who live in big cities, who have a higher income, who are less religious and who are politically left-wing.

Support for LGBT parenthood 2014[83]
YES NO
right for a lesbian to parent a child of her female partner 56% 35%
the situation above is morally acceptable 41% 49%
right for a gay (couple) to foster the child of a deceased sibling 52% 39%
the situation above is morally acceptable 38% 53%

IBRiS polls[edit]

Support for the recognition of same-sex relationships VI 2018[84]
YES NO
"same-sex marriages performed abroad" 59% 30%

2012 CEAPP poll[edit]

Support for the recognition of same-sex relationships[85] opposite-sex couples same-sex couples
YES NO YES NO
"registered partnerships" 72% 17% 23% 65%
"right to obtain medical information" 86% 68%
"right to inherit" 78% 57%
"rights to common tax accounting" 75% 55%
"right to inherit the pension of a deceased partner" 75% 55%
"right to a refund in vitro treatments" 58% 20%
"right to adopt a child" 65% 16%

IPSOS polls[edit]

Support for the recognition of same-sex relationships 2013[86] 2014[87] 2015[88]
YES NO YES NO YES NO
"same-sex marriages" 21% 63% 20% 66% 21% 67%
"some kind of legal recognition of same-sex unions" 60% 24% 56% 29% 56% 32%

PBS polls[edit]

Support for the recognition of same-sex relationships 2013[89] 2015[90]
YES NO YES NO
"any form of recognition of same-sex unions" 55%
"notarial agreement" 49% 38%
"registered partnerships" 40% 46% 37% 52%
"same-sex marriages" 30% 56% 29% 61%
"adoption rights" 17% 70% 22% 70%

2013 OBOP poll[edit]

Support for registered partnerships[91] opposite-sex couples same-sex couples
YES NO YES NO
"registered partnerships" 67% 34% 47% 53%

Other polls[edit]

Support for the recognition of same-sex relationships 2011[92]
TNS OBOP
2013[93]
Homo Homini
2017[94]
IPSOS
YES NO YES NO YES NO
"registered partnerships" 54% 41% 55% 39% 52% 43%
"same-sex marriages" 27% 68% 27% 69% 38% 57%
"adoption rights" 7% 90% 14% 84% 16% 80%
Support for the recognition of same-sex relationships 2006[95]
Eurobarometer
2015[96]
Eurobarometer
2017[97][98]
Pew Research Center
YES NO YES NO YES NO
"same-sex marriages" (total) 17% 76% 28% 61% 32% 59%
"same-sex marriages" (somewhat) 12% 16% 19% 25% 25% 28%
"same-sex marriages" (strongly) 6% 61% 9% 36% 8% 31%

See also[edit]

References[edit]

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