Recognition of same-sex unions in Poland
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.
- 1 Unregistered cohabitation
- 2 Registered partnerships
- 3 Same-sex marriage
- 4 Public opinion
- 5 See also
- 6 References
- 7 External links
While Poland possesses no specific law on cohabitation, it does have a few provisions in different legal acts or Supreme Court rulings that recognise relations between unmarried partners and provide said partners 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.
Other laws exist that 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 in relation 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).
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. 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.
Limited symbolic recognition
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.
In 2004, under a left-wing Government, the Senate approved a bill allowing gay and lesbian people to register their relationships as civil unions. Parties to a civil union under the bill would have been given a great range of benefits, protections and responsibilities (e.g. pension funds, joint tax and death-related benefits), currently granted only to spouses in a marriage, although they would not have been allowed to adopt children. The bill lapsed in the 2005 general election, however.
Only two parties, the Alliance of the Democratic Left (SLD)-Labour Union and the Social Democracy of Poland, (both social democrats) supported the bill, while Civic Platform (PO), the League of Polish Families and Law and Justice (PiS) opposed it. Samoobrona was indifferent and the Polish People's Party (PSL) did not take a position.
The Polish Government, led by the PiS party, planned to amend the Polish Constitution to constitutionally ban any recognition of same-sex relationships.
A new registered partnership bill was proposed to the Government of Civic Platform and the Polish People's Party in late 2007. However, the Government rejected this proposal. It was the third bill since a public debate on same-sex unions had begun in 2000. The first one to recognise unregistered cohabiting couples (including same-sex couples) was proposed in 2002. In 2008, a new fourth bill on registered partnerships was being prepared by the opposition Alliance of the Democratic Left. However, this project had no chances of being passed in the Parliament. In the end, the Alliance of the Democratic Left did not introduce the bill.
Another debate about the legalization of same-sex registered partnerships began in June 2009. Gay and lesbian organisations submitted a petition on the matter to the Speaker of the Sejm, Bronisław Komorowski (PO). The political climate also changed, in which some politicians from parties opposed to the legalization of same-sex unions like PO or PiS including Jerzy Buzek (PO) and Michał Kamiński (PiS), had expressed the need to regulate certain rights for same-sex couples. Similarly, in this regard, attitudes from some representatives of the church also changed. In January 2010, the opposition SLD, in consultation with gay and lesbian organisations, prepared a new draft law on registered partnerships. The new bill was modelled on the same one approved by the Senate in 2004 and similar to the French Pacte civil de solidarité (PACS) law. However, the bill had no chances of passing in the current Parliament as PO, PiS and PSL announced that they would not support the bill.
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. This project was similar to the French PACS law. Agnieszka Pomaska, Deputy Secretary General of the PO, declared that it was time to hold discussions about legal informal relationships, both heterosexual and homosexual, and that PO is open to talk about registered partnerships. Prime Minister of Poland Donald Tusk (PO) declared that the law on registered partnerships would be passed at the beginning of the next term of the Sejm. However, Speaker of the Sejm Grzegorz Schetyna (PO) declared that this bill would not be put to a vote in Parliament in that legislative term. However, after receiving a petition in favor of the registered partnership bill, signed by 23,500 people, Speaker Schetyna declared that he would likely submit the bill for its first reading in Parliament after 10 July 2011. Krzysztof Tyszkiewicz, Spokesman of the Parliamentary Club of the Civic Platform party (PO), declared that the PO would support the SLD bill on registered partnership, but only after the parliamentary elections in October 2011.
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 both committees, 29 supported the project, 10 voted against and 3 abstained.
The Supreme Court of Poland expressed its opinion on the SLD bill, which was adopted on first reading in the Sejm, before the elections on 9 October 2011. The Court undermined the legitimacy of further work on the bill, because of numerous legal deficiencies. At the same time, it stated that the institutionalization of opposite-sex cohabitation is inadmissible in connection with the wording of Article 18 of the Polish Constitution. Regarding lasting relationships of same-sex couples, it stated that the admissibility and scope of any statutory regulation requires an analysis taking into account international legal obligations, and to consider the consequences that may result from recent judgments of the European Court of Human Rights. According to Professor Miroslaw Wyrzykowski, head of the Department of Human Rights at the Faculty of Law of University of Warsaw, a former judge of the Polish Constitutional Court, the Constitution requires the introduction of civil partnerships.
The bill was ultimately not voted upon by Parliament and, thus, died.
After the parliamentary elections were held on 9 October 2011, Janusz Palikot, the leader of the Palikot's Movement (RP), declared that a draft law on civil partnerships would be one of the first draft laws submitted to the Parliament. Leszek Miller, head of the Parliamentary Club of the SLD, announced that they would re-introduce the same bill as the one introduced in the previous Parliament. Rafał Grupiński, vice president of the Parliamentary Club of the PO, announced that during the vote on the draft law there would be "no discipline" among its members. Stanisław Żelichowski, head of the Parliamentary Club of the PSL, believed that the SLD's draft law on civil partnerships would be mostly ignored by Parliament.
A new draft law based on that adopted by the Senate in 2004 (similar to the Scandinavian model, not the French PACS), which would regulate unions between 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 announced their support. PSL did not take a firm position on the issue, but was believed to support it. Only PiS objected, although not all its members, like e.g. Witold Waszczykowski.
Polish MEP Agnieszka Kozlowska-Rajewicz considered adopting the law on civil partnerships as one of her priorities. Although she said, that the ideal would be to introduce the right to marry for same-sex couples. She also said that civil partnerships similar to the French PACS law was the form for which there was an agreement at the time. Moreover, she believed that this law would be enacted in that term of the Parliament. Additionally, a government report, Poland 2030 Third wave of modernity – Long-term National Development Strategy, stated that an objective of the next five years (until 2015) would be the equalization of rights for unmarried stable couples. Arthur Dunin (PO) said that many PO parliamentarians see the need for such a partnership law, provided that it does not go too far. Such a law would give the possibility of formal recognition for both same-sex and different-sex couples and would be similar to the French PACS law. Such a law also has the support of conservative members of the PO.
On 13 January 2012, the SLD and the RP jointly presented two draft laws on civil partnerships to the Sejm. The first bill was the same that 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). Also, the PO intended to introduced its own bill, similar to the French PACS law, with particular differences between civil unions and marriages (as necessary to be consistent with the Constitution). On 28 June, the Legislative Committee expressed the opinion that both bills are 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.
All three drafts were rejected on 25 January 2013 by the plenary session of the Sejm, most narrowly the bill proposed by the Civic Platform with 211 deputies supporting and 228 deputies rejecting submission of the bill to committees for further examination.
Following the 2015 parliamentary elections, the social conservative Law and Justice party (PiS) formed the new Government. PiS is opposed to registered partnerships.
2018 European Court of Justice ruling
On June 5, 2018, the European Court of Justice (ECJ) ruled that all EU countries that do not recognise same-sex marriages (including Poland) must legally recognise such marriages performed in EU countries where they are legal, and grant same-sex couples in which one partner is an EU citizen full residency rights. 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.
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.
The 2015 Eurobarometer found that 28% of Poles thought that same-sex marriage should be allowed throughout Europe, 61% were against. 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.
|Support for the recognition of same-sex relationships||2001||2002||2003||2005||2008||2010||2011||2013||2017|
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|
|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%|
|Support for the recognition of same-sex relationships||2013||2014||2015|
|"same-sex marriages performed abroad"||55%||45%||–||–||–||–|
|Support for the recognition of same-sex relationships||2013||2015|
|"any form of recognition of same-sex unions"||–||–||55%||–|
2013 OBOP poll
|Support for registered partnerships||opposite-sex couples||same-sex couples|
2012 CEAPP poll
|Support for the recognition of same-sex relationships||opposite-sex couples||same-sex couples|
|"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%||–|
|Support for the recognition of same-sex relationships||2011
|Support for the recognition of same-sex relationships||2006
|"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%|
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