The Recognition of Quasi-Marital Unions from the Perspective of the Private International Law and the European Law (Die Anerkennung der quasi-ehelichen Verhältnisse in Polen aus der kollisions- und europarechtlichen Perspektive)

Abstract

The method of the conflict-of-laws recognition has long been portrayed as an alternative to the Private International Law in legal transactions between the countries of the European Union. The issue of particular importance seems to be the recognition of civil status of individuals, encouraged by the jurisprudence of the EU Court of Justice, esp. in such cases as e.g.: Garcia Avello, Grunkin and Paul, as well as the newest judgment in Sayn-Wittgenstein. According to some authors, the recognition could help avoiding the creation of so-called “limping” legal relationships, including the quasi-marital unions between persons of the same or different sex. Draft Regulation on the law applicable to patrimonial aspects of registered partnerships, however, does not bring a decisive breakthrough in this respect. The automatic “recognition” of public documents (such as civil status certificates) was limited so as to grant them only the probative value, which does not imply, however, that the rules of conflict in the forum State do not apply. The registered partnership or the marriage between persons the same sex will not be treated throughout the European Union as a complete legal situation. Polish law has never denied the admissibility of foreign personal status certificates as the means of evidence, although it has not so far provided for the registration of the relationships other than the traditional marriage. A refusal to recognize the status of a natural person discourages, admittedly, him or her from exercising the freedom of movement. Yet it is impossible to conclude that Article 21 TFEU is indeed to be considered as a basis for the recognition throughout the EU of the legal situations created abroad. The freedom of movement imposes on the Member States only the restrictions in the application of the exception of public policy (ordre public), which plays an important role in both the conflict of laws method and the system of mutual recognition. Due to the principle of loyalty, it is recommended to Member States to minimize as far as possible the scope of their public policy. This also applies to Poland, where the sex difference and the special protection of marriage form part of the constitutional standard (Article 18 of the Constitution). No Member State then should deny the existence of a quasi-marital union validly concluded in another Member State only because the former does not know any such institution. As to the cross-border effects of quasi-marital unions, it is advisable to take into account a widest possible admissibility of the application of foreign law relating to the matters of property and maintenance. In relation to personal effects, the margin of the Member State’s discretion in relation to invoking its ordre public should be designated according to application of the “proximity principle”.

Note: Downloadable document is in German.

Keywords: conflict of laws, PIL, Private International Law, homosexual couples, registered partnerships, Poland, recognition, gay marriage, lesbian marriage