ECHR ruling incompatible with the Polish Constitution. Court demands legal recognition of same-sex cohabitation

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• The European Court of Human Rights (ECHR) has upheld the latest complaints by same-sex couples against Poland.

• The couples had entered into “marriages” abroad and tried to get them formally recognized in Poland, and also tried to utilize certain marital privileges like joint taxation.

• Polish registry offices declined to certify these “marriages”.

• The Ordo Iuris Institute submitted its position on this case to the court, pointing out that Poland has the right to define marriage as the union of one man and one woman.

• However, the ECHR has established the view that member states of the Council of Europe must establish at least some form of legal recognition of same-sex cohabitation (although this does not have to consist of allowing “marriages”).

The case involved two female couples. The first couple tried unsuccessfully to utilize various privileges enjoyed by married couples: gift-tax exemption, joint taxation, sick-partner care allowance, and health-insurance coverage. Finally, the couple entered into a so-called marriage in the UK, but the Polish registry office refused to certify it. The office cited the inadmissibility of recognizing such a cohabitation specified in Article 18 of the Constitution, which defines marriage as the union of one man and one woman.  The second pair of women merely attempted to register in Poland a “marriage” contracted in Denmark.  From 2012 to 2018, the two couples filed a total of five complaints with the European Court of Human Rights, alleging violations of their right to respect for private and family life (Article 8 of the European Convention on Human Rights).

This year, the European Court of Human Rights upheld all of these complaints, finding that Poland had violated Article 8 of the ECHR. The Court accused Poland of “leaving the applicants in a legal vacuum and failing to provide for the elementary needs for recognition and protection of same-sex couples in stable and committed relationships.” At the same time, the Court confirmed that states have extensive discretion regarding the choice of the legal regime under which same-sex cohabitation will be regulated: in this case, “it is possible to take into account the Polish social and cultural context.”

This is yet another ruling in which the Court obliges Poland to provide same-sex couples with at least some of the privileges enjoyed by married couples. The ECHR judgment far surpasses the wording of Article 8 of the Convention. It attributes an extraordinary meaning to the concept of family life used therein, according to which the family is formed not by ties of blood and law, but by emotional ties alone. From this point of view, the mere emotions shared by two people can be the basis for recognizing a family under the auspices of Article 8 of the ECHR. Such an interpretation, however, has no relation to the Convention's interpretation of the concept of family, which, from the beginning, was to be based on a stable relationship between one man and one woman; as a rule, they perform the role of father and mother. The Court's jurisprudence indicates that there will be further complaints in such cases against Poland and other countries (such as Bulgaria and Romania), which still have not created any form of legal recognition of same-sex cohabitation.

What emerges from the ECHR judgment is not the necessity to introduce so-called “same-sex marriages,” but the obligation to create some form of regulation that will enable same-sex couples to enjoy at least some of the privileges of marriage, such as statutory inheritance, funeral allowance, guardianship allowance, or joint taxation. However, a fundamental legal problem arises in this context: on one hand, Article 46 of the European Convention on Human Rights requires implementation of any judgment of the Court (even if it is based on an erroneous interpretation of the Convention); on the other hand, Article 18 of the Polish Constitution requires protection of the privileged nature of marriage as a union between one man and one woman. It would be inconsistent with Article 18 of the Constitution to institutionalize same-sex cohabitation by establishing such “marriages” or partnerships with rights similar to marriage.

See: ECHR judgment of September 19, 2024, in Formela v. Poland