Strasbourg Court Disregards Polish Constitution and Demands Legal Recognition of Same-Sex Cohabitation

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• The European Court of Human Rights (ECHR) has upheld complaints from same-sex couples who were denied a certificate of no impediment to marriage abroad by a Polish registry office.

• This marks the third ruling in which the ECHR has indicated that Poland is obligated to provide a legal framework for same-sex couples to formalize their cohabitation.

• The Ordo Iuris Institute submitted an amicus curiae brief in the proceedings, emphasizing that the European Convention on Human Rights, when referring to family life, envisions a community based solely on the union of a man and a woman.

• Under the current legal framework, the Convention requires Poland to implement the ECHR judgment. However, the Polish Constitution explicitly prohibits the institutionalization of same-sex cohabitation, and as the supreme law of the land, it takes precedence.

The case concerned two same-sex couples who attempted to obtain certificates from the Polish civil registry office affirming that there were no legal obstacles to their marriage in Spain. Polish law restricts marriage to a union between a man and a woman, whereas Spanish law allows same-sex marriage. The Polish registry office (USC) refused to issue the certificates in both cases, citing a conflict with Polish law, which does not recognize same-sex unions. Both couples challenged the USC’s decisions in Polish courts, but their appeals were dismissed.

In 2015, Tomasz Szypuła (without his partner) and Jakub Urbanik with José Luis Alonso filed complaints with the ECHR, alleging that Poland had violated their right to respect for private and family life under Article 8 of the European Convention on Human Rights. The complainants argued that their inability to formalize their relationships deprived them of various legal benefits, such as taking leave to care for a sick partner, extending health insurance to their partner, enjoying tax advantages (e.g., exemption from inheritance and gift tax or joint taxation), and inheriting from each other without the need for a will.

During the proceedings before the ECHR, the Ordo Iuris Institute intervened as a "friend of the court." In its submission, Ordo Iuris contended that the Convention’s definition of family life is based on the union of a man and a woman, and that no "right" to redefine family structures to include same-sex couples could be derived from it. Ordo Iuris further argued that member states should retain the autonomy to regulate same-sex cohabitation and that the Court should not impose uniform solutions on this matter.

However, the Court ruled that Poland had violated Article 8 of the Convention, arguing that it had "left the complainants in a legal vacuum" by failing to "recognize and protect same-sex couples in stable and committed relationships." This decision marks the third instance in which the ECHR has found Poland in violation of Article 8 for not regulating the legal status of same-sex couples, following the Przybyszewska judgment in 2023 and the Formela judgment in 2024.

In theory, Poland is obligated to comply with these rulings by creating a legal framework for same-sex couples. However, this does not necessarily mean introducing same-sex "marriage," which is explicitly prohibited by both Polish law and the Polish Constitution. According to an analysis by the Ordo Iuris Institute, from the ECHR’s viewpoint, these rulings—arguably exceeding the original intentions of the Convention’s signatory states—should be implemented by institutionalizing same-sex cohabitation within family law, i.e. by the possibility to get married to same-sex couples or by establishing a separate legal category such as civil partnerships.

The Ordo Iuris Institute has also highlighted an alternative approach, however: the introduction of ex lege legal provisions granting certain practical rights to same-sex couples in specific aspects of daily life. These could include the right to receive medical information about a partner without a power of attorney, the ability to inherit without a will, or the right to take leave to care for a partner.

• "Changing the centuries-old definition of marriage or institutionalizing same-sex cohabitation raises serious concerns regarding its compatibility with Article 18 of the Polish Constitution, which mandates special legal protection for marriage as a union between a man and a woman. This constitutional provision has long been interpreted in legal doctrine and jurisprudence as precluding the creation of alternative family law institutions," notes Patryk Ignaszczak of the Ordo Iuris Center for International Law.

ECHR Judgment: Szypuła and Others v. Poland, February 27, 2025