These above mentioned actions may meet with success, which would mean passing an appropriate act. However, the realistic perspective is that of at least 6 year – time required to make the issue of civil unions the main focus of current policy. Another necessary condition is a substantial change in the political forces. Yet, a distant perspective should not turn attention from the strategic decisions, which ought to be made now.
When it comes to the principle, there are four fundamental legal forms, which can serve as the basis for determining the rights of people who are in homosexual relationships. The first form is common-law marriage, an informal relationship, which enjoys some rights that result from certain law regulations and judicial practice. The second one is civil union agreement – a civil-law agreement registered in the registry-office, regulating the rights and responsibilities of the partners. The model for this one is the French PACS (civil pact of solidarity, Pacte civil de solidarité). The third form is a registered partnership solemnized by a registrar. The rights of partners result from the force of law and are equally valid for every person in such a relationship. This model is popular in many countries (such as Germany, Great Britain or Hungary). The fourth form is marriage, which means granting the possibility of getting married to people of the same sex. Such a solution has been introduced in Belgium, Netherlands, Spain, Sweden, Norway, Canada, Republic of South Africa and in some states of the USA.
The introduction of civil unions in Poland comes down to choosing one of the mentioned models. It is worth pointing out that enabling homosexual marriages is rather impossible, due to strict regulation of article 18 of the Constitution. This regulation precisely states that marriage is a relationship between a woman and a man. It also seems that most people from the LGBT environment are not interested in such an option anyway. Thus, it needs to be decided which of the three remaining models should be introduced in Poland.
Is a legal act really necessary?
The judgement of the European Court of Human Rights in case Kozak v. Poland raised an idea that maybe a special act on civil unions is not necessary. In Polish law there are many regulations which talk about “the closest person” or “cohabitation”. Therefore, it is just a matter of interpretation of those regulations and extending the meanings of those terms, so that they do not refer either to homosexual or heterosexual common-law marriages. It may seem an interesting perspective, since a political fight could be avoided and the life of homosexual couples would be easier, thanks to favourable interpretation of the courts.
The problem is that for such a solution to work out, the courts and administration authorities have to start consequently interpreting regulations, taking homosexual couples into consideration. However, the realization of this idea will take a lot of time, and still its future is quite uncertain. Even numerous judgements of the European Court of Human Rights in Strasbourg will not bring immediate changes in the application of law. What is more, the interpretation will still not apply to many spheres of life, as well as those regulations, where the term “closest person” does not appear and notions such as “marriage” or “spouse” are used instead. Let us just mention inheritance and donation tax. It is difficult to imagine a situation, when the partner of a homosexual person is exempt from the tax on inheritance or donation from their partner. It turns out that a new act is necessary. And such an act will not only have a strictly legal, but also educational function. I will be a tool reinforcing tolerance and acceptance towards homosexual people in the society.
Civil union agreement or a registered partnership?
Therefore, the real choice is between the second and the third option – a union in the form of a civil-law agreement, and a registered partnership. It may seem that the civil union agreement is a very attractive form. In such an instance we allow two people to conclude an agreement and mutually determine their rights. The contractual rights and obligations can be extended or narrowed, and the legislator defines the most important ones, so that both partners are bound by the force of law. However, if we go into details of creating such an agreement, serious doubts arise: as to the form in which it should be concluded, the procedure of its dissolution, situations when incapacitation of one of the partners occurs, and as to its effects on the property relations of both partners. In other words, there are numerous problems that would have to be dealt with and consulted with civil lawyers.
Unfortunately, the more doubts there are, the less chances we have of preparing a clear legal act. It is easy to imagine scores of lawyers (opponents of the institution of civil unions), putting forward their strongest arguments relying on the civil law doctrine, against the new form of so called nominate contract. Bearing that in mind, we should favour the simplest form of regulation, which, considering the legal constructions, would not cause serious doubts. Civil union registered by the administration (registry-offices) does not evoke such strong emotions, especially because of the fact that it is the most popular form in other countries and it has been well established in practice. This factor might considerably facilitate the process of preparing the project of the act.
Should civil unions be reserved for the people of the same sex only?
Even if LGBT environments accept the idea of registered partnerships, we will confront another dilemma. Should the possibility of forming such a partnership concern only people of the same sex, or should people of different sexes also have that chance? Seemingly, the idea of civil unions which could be formed regardless of sexual orientation sounds appealing. After all, many people do not want to get married, but only regulate some property issues “just in case”, without creating such strong bonds as in case of marriage. This way, we can argue that registered partnerships will not only serve gays and lesbians, but also other people.
It is hard to disagree with those arguments. The above proposals are discussed and seriously considered. However, following this path might hamper the original cause for the entire initiative, that is – introducing a regulation for sexual minorities – people who cannot benefit from the institution of marriage. LGBT environments do not get engaged in the issue of civil unions in order to create a legal form which would serve heterosexuals as an alternative to marriage, but first of all, to help themselves.
Any attempt at making civil unions available for people of different sexes, would be quite risky, due to article 18 of the Constitution of the Republic of Poland. If marriage is considered a relationship between a woman and a man and remains under special protection of the Republic of Poland, it is probable that an institution introducing an alternative to marriage will be challenged. It is easy to imagine a decision by our Constitutional Tribunal, stating that a civil union between people of the same sex undermines the institution of marriage. Admittedly, article 18 of the Constitution also says that “family” is under special protection of the state. The notion of “family” may be interpreted in different ways (family might for example consist of a father and a child, or a grandmother, mother and a daughter). Therefore, one might argue that the Constitution protects not only marriage, but also other forms of common life. However, we may be afraid that in such case the Constitutional Tribunal will only take into consideration the analysis of the constitutional notion of “marriage”, and this will be the main point of reference.
It is quite different when it comes to a registered partnership reserved for people of the same sex. These people have the right to argue that the institution of marriage is not available for their minority because of their different sexual orientation. That is why the legislator should provide them with another option, taking into account their choice of a different life path. The legislator may, as the European Court of Human Rights in Strasbourg stated in the case Kozak v. Poland, “take into consideration the social changes and changes in the perception of social issues, civil status or relations between individuals, as well as the fact that there is no single way or one single choice in the sphere of one’s private or family life path.”
It would be acceptable in the face of article 18 of the Constitution, as it would represent different constitutional values, especially the dignity of an individual, their freedom, right to privacy and prohibition on acts of discrimination. Introduction of the above regulation would not limit the constitutional role of the state in supporting the traditional model of family based on marriage – a union between a woman and a man.
It is worth noting that a similar dilemma has lately been the subject of concern of the Constitutional Court of Hungary. The act on registered partnerships was quashed precisely because of the fact that it concerned both homosexuals and heterosexuals. In the judgement of 15 December 2008 the Constitutional Court of Hungary stated that such a construction undermines the institution of marriage. As a result of further legislative changes, registered partnerships were reserved for people of the same sex. It seems that there is no need for repeating the Hungarian lesson, because, taking into account Polish conditions, it could have a much worse final – such as quashing the entire act.
What rights?
The choice of the legal form for future civil unions is not the only strategic choice that we will have to face. It is equally important to consider the possible legal consequences of entering into a civil union. Civil union should be different from marriage in this respect. It should not have exactly the same legal consequences.
A quick review of Polish law shows that a civil union could solve many problems of daily life that homosexuals come across in their relationships. It could result in the following legal consequences for people who are, or used to be in a civil union: the right to bury, right to refuse depositions, right to be an agent for litigation of one’s partner, the possibility of applying for residence in the territory of the Republic of Poland by a partner who is not a citizen of the European Union, the right to be informed about the state of health of a patient (especially an unconscious one), tax exemption in the sphere of inheritance and donations to the partner, the possibility of joint taxation, providing an unemployed partner with a health insurance as a member of family of an insured partner, the right to pension or dependant’s pension after a deceased partner, joint membership in a housing cooperative, the right to take on tenancy, the right to add the partner’s surname to one’s surname, or the right to have access to money on a bank account in the event of death of a partner.
Own project or political marriage?
In the context of works on the project of the act, LGBT environments also need to choose a long-term strategy. Should these issues be discussed with politicians now, when there are no chances of passing the act before the end of this term of Parliament? Or maybe it would be better to prepare a good and rational bill and demand support without any compromise or concession? Maybe in a few years there will come a time, when such a bill could be introduced by one political party, and supported by a parliamentary majority. Or maybe it would be better to finish the bill first, collect 100 thousand signatures and submit it to the lower chamber of the Polish parliament at the beginning of a new term, which should be used for actively promoting the proposed solutions.
Regardless of which political strategy wins, it needs to be accompanied by constitutional realism. We cannot expect changes in the Constitution. After recent decisions of the Constitutional Tribunal, there is no doubt that it is “turning” right, which might translate into the decision concerning the act on civil unions. We should also expect conservative and reserved opinions of the majority of legal doctrine. These potential problems should increase vigilance of the authors of the future bill. We should not facilitate the possible obstruction through preparing a project that is poor or not well thought out as far as strategy is concerned.
Adam Bodnar, PhD
Author is an adjunct in the Department of Human Rights at the Faculty of Law and Administration of the University of Warsaw, Secretary of the Board of the Helsinki Foundation for Human Rights.
