Patchwork Legislation (Love) – Cyber Tech

The ruling coalition got here to energy on a transparent promise: to liberalize abortion legislation and introduce authorized recognition for same-sex {couples}. Whereas abortion payments have reached the committee stage and now await a extra favorable political local weather – or a president prepared to signal them into legislation, the federal government invoice on civil partnerships was in the end withdrawn on the finish of 2025. A brand new invoice on cohabitation agreements as a substitute seeks to grant each same-sex and opposite-sex {couples} chosen rights at present reserved for married spouses, aiming to make on a regular basis household life simpler whereas intentionally preserving a transparent authorized and symbolic distinction from marriage. The result’s a political compromise throughout the coalition: a piecemeal framework that dangers creating second-class household relationships whereas leaving some key points unresolved or overly sophisticated.

Cohabitation settlement: pseudo-marriage or something however marriage?

The federal government draft laws – the Act on the Standing of a Closest Individual in a Relationship and on a Cohabitation Settlement (Invoice no. 2110) and the Introductory Provisions to that Act (Invoice no. 2111) – would set up a brand new authorized establishment in Poland: a registered cohabitation settlement conferring on companions the authorized standing of a “closest individual.” This establishment would have wide-ranging results throughout household and civil legislation, banking, immigration, and even legal process. Notably, the cohabitation settlement would stay outdoors the Household and Guardianship Code and wouldn’t set up a separate civil standing, working solely as a civil-law association.

Final week, the Sejm voted to refer the federal government payments for additional legislative work. The proposal handed nearly fully alongside coalition traces, whereas the opposition and its aconites argued that it threatened marriage. The drafters stress, nonetheless, that these contractual civil unions are to stay distinct from marriage and legally much less privileged, justified by the “particular character” of marriage in Polish legislation. Whereas Article 18 of the Structure defines marriage as a union between a girl and a person underneath state safety, it doesn’t forestall the legislature from extending related protections to different {couples}, together with gay unions. Below the “residing tree” interpretation, the Structure grants particular safety to heterosexual marriage however doesn’t preclude different types of authorized recognition. As Professors Ewa Łętowska and Jan Woleński have argued, it might even allow comparable protections for gay unions.

A key distinction between marriage and the proposed cohabitation settlement considerations obligations: in contrast to marriage, the draft imposes no duties of constancy or loyalty. Registered cohabitees might outline respect and loyalty for themselves. Whereas this underscores autonomy, it raises questions on whether or not the mannequin simplifies authorized relationships or as a substitute generates uncertainty. The place cohabitees’ rights overlap with these of spouses, the proposal affords significant protections, together with burial and funeral advantages, compensation upon a companion’s demise, medical health insurance, inheritance, pensions, caregiving allowances, joint taxation, and entry to social safety and worker pension schemes. It responds to real social wants by offering better stability and authorized safety for long-term, non-marital {couples}.

Cohabitation agreements could be concluded earlier than a notary and registered in a separate “closest individual” registry. Authorized rights would come up solely upon registration, involving the Director of the Civil Registry and creating administrative burdens, in addition to potential uncertainty if registration had been delayed or refused. Eradicating the choice to conclude the settlement earlier than a civil registry official within the presence of witnesses additionally eliminates symbolic recognition and exterior markers corresponding to a shared surname. These limitations might reinforce perceptions of “second-class” unions, requiring {couples} to repeatedly show their standing and the phrases of their settlement to authorities and third events.

A constructive characteristic of the payments is that they allow individuals with mental or psychological disabilities to enter right into a cohabitation settlement, according to the state’s obligations underneath the UN Conference on the Rights of Individuals with Disabilities. Not like marriage, the draft imposes no disability-related restrictions. Nevertheless, given the complicated process, elective contractual components, and potential notarial prices, doubts stay as as to if the establishment can be virtually accessible in observe. Furthermore, the broad flexibility and autonomy embedded within the settlement – corresponding to guidelines on property division or unilateral termination – might not sufficiently defend weak individuals, and the potential of annulment might additional add to authorized uncertainty for these requiring particular safeguards.

Cohabitation agreements underneath ECHR requirements

Latest ECHR judgments – together with Przybyszewska and others v. Poland (2023), Formela and others v. Poland (2024), and Szypuła and others v. Poland (2025) – have repeatedly discovered that same-sex {couples} in Poland stay in a authorized vacuum, unable to control important elements of their lives or safe official recognition. Though the payments introduce tax exemptions, joint submitting, and sure social advantages, they fall wanting full safety in key areas corresponding to statutory inheritance, computerized property sharing, and post-breakup upkeep. Whereas the drafts emphasize the autonomy of cohabitees, their contractual nature might in observe depart the weaker get together insufficiently protected. Nevertheless, in gentle of the particular implementation of those ECHR rulings, present rules seem largely adequate.

But the federal government payments fail to control the standing of youngsters raised by {couples} in cohabitation agreements – whether or not same-sex or opposite-sex – elevating critical considerations about inadequate safety and compliance with worldwide human-rights requirements. On this respect, they’re inconsistent with the case legislation of the European Court docket of Human Rights, notably C.E. and Others v. France (2022) and Callamand v. France (2022), which confirms that family-life safety extends to relationships between a toddler and the one that truly cares for them and that states should present authorized safeguards for such ties. The payments fail to guard youngsters biologically associated to 1 companion, adopted youngsters, or these conceived by IVF inside such unions. They don’t acknowledge a household relationship in these conditions, nor do they allow joint adoption or the acquisition of parental authority over a companion’s youngster. Furthermore, the drafts make no adjustment to the presumption of paternity: even when a mom enters into a brand new cohabitation settlement, the presumption in favour of her former husband continues to use for 300 days following divorce or dissolution of the earlier union.

The invoice additionally omits guidelines on youngster custody and visitation. Whereas parental rights can not merely be transferred by settlement, this hole might create sensible difficulties. Ideally, a cohabitation settlement might permit the “closest individual” to characterize a mother or father in exercising authority, accessing data, or caring for the kid within the mother or father’s absence – reflecting fashionable family realities, although nonetheless requiring the authorized mother or father’s consent. The invoice additionally doesn’t handle post-breakup contact between youngsters and a non-parent companion. A baby raised for years by a mother or father and their cohabiting companion might lose significant contact if the settlement ends. It’s due to this fact advisable that Article 1136 of the Household and Guardianship Code be amended to incorporate anybody who has offered long-term care for a kid. This could acknowledge vital emotional bonds whereas preserving the excellence between marriage and cohabitation: contact would stay computerized in divorce however granted on request in cohabitation circumstances, based mostly on the kid’s finest pursuits.

Cohabitation agreements and EU legislation

The explanatory notes to the federal government payments declare compliance with EU legislation, however they solely partially meet obligations underneath EU legislation and established CJEU case legislation. CJEU rulings clarify that Member States should acknowledge the authorized results of same-sex marriages concluded in different EU international locations when residents train EU rights. Most not too long ago, in Trojan (2025, C-713/23), the CJEU dominated that nationwide provisions blocking recognition of same-sex marriages contracted overseas violate EU legislation within the context of free motion.

Invoice No. 2111 adjusts sure provisions of the 2006 Act on the Entry, Keep, and Exit of EU Residents and Their Households to equate cohabitation agreements with spouses’ rights, however entry requires concluding the settlement upfront. In observe, this calls for prior entry into Poland, limiting rights and infrequently making them inaccessible to third-country nationals, since agreements can’t be concluded earlier than a consul. Critically, the invoice neither permits agreements to be formalized overseas nor acknowledges same-sex marriages from different EU international locations as equal to cohabitation agreements, leaving gaps between authorized frameworks. The notarial requirement additional limits practicality, as {couples} overseas should return to Poland or contact a Polish notary to terminate an settlement.

The payments additionally make no provision for recognizing international partnerships, relevant legislation, or international court docket (or different authority) choices, and omit amendments to the Personal Worldwide Legislation Act on recognition of international partnerships and judgments. Below the proposed framework, “closest individual” standing arises solely upon registration with the Civil Registry, that means international partnerships stay unrecognized and handled as contractual moderately than a type of civil standing, even when registered. The drafts additional fail to contemplate Poland becoming a member of the improved EU cooperation mechanism on recognition of judgments in matrimonial and registered partnership issues (Council Rules (EU) 2016/1104 and 2016/954).

Additional suggestions

The payments include a number of authorized gaps that require rectification. They need to set up a transparent enchantment process for notary refusals to conclude a cohabitation settlement, enabling courts to find out whether or not authorized obstacles exist. Alimony obligations must be necessary for each events to forestall financial inequality, according to the statutory duties of mutual respect, loyalty, and cooperation. Unilateral termination ought to embody a proper notification mechanism to guard each events and keep away from authorized uncertainty, and provisions creating authorized results for invalidated terminations must be eliminated. The draft also needs to permit integration of present authorized acts – corresponding to powers of legal professional, wills, or prior cohabitation agreements – into new agreements, offered they adjust to the legislation, decreasing duplication and related prices whereas preserving prior preparations. Moreover, the ministerial decree ought to make clear the utmost price: whereas the invoice mentions a 100 PLN registration price, notarial prices for drafting complicated agreements protecting property, help, wills, powers of legal professional, and shared residence might simply exceed 1,000 PLN plus VAT and certified-copy charges, underscoring the bureaucratic burden and unequal entry regardless of some authorized protections.

Lengthy path towards marriage equality

The proposed payments take a step towards implementing ECHR rulings on same-sex partnership rights, but the notarial cohabitation mannequin affords weaker authorized safety than earlier proposals, creates institutional complexities (e.g., a separate registry), and leaves key gaps – together with parental rights, recognition of international judgments, and companion standing between settlement and registration. To completely meet ECHR requirements and advance marriage equality, additional reform is required – ideally by recognizing partnerships as a type of civil standing, which might strengthen authorized protections, simplify administration, and higher align Polish legislation with EU freedom-of-movement rights.

This weblog was written as a part of a analysis fellowship on the European College Institute throughout the NAWA Bekker Program. It attracts on the essential evaluation expressed within the skilled opinion commissioned by the Nationwide Chamber of Authorized Advisors (co-authored with authorized counsels Filip Rakoczy and Emil Koźbiał).

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