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Małżeństwa jednopłciowe i związki partnerskie w Polskim Rejestrze Stanu Cywilnego?

100%
Wojewoda M.
Studia Prawno-Ekonomiczne
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2017
|
vol. 103
133-161
PL
Polskie prawo rodzinne nie przewiduje małżeństw osób jednej płci ani też związków partnerskich. Mimo to rosnąca liczba podmiotów, które są objęte polskim systemem rejestracji stanu cywilnego (głównie obywateli polskich), zawiera takie związki za granicą. Artykuł jest poświęcony przedstawieniu argumentów przemawiających za ujawnianiem informacji o małżeństwach jednopłciowych i związkach partnerskich w polskim rejestrze stanu cywilnego. Mechanizmem prawnym, który – zdaniem autora – powinien być w tym zakresie wykorzystany, jest przypisek umieszczany na podstawie art. 25 ust. 1 Prawa o aktach stanu cywilnego z 2014 r. przy akcie urodzenia osoby pozostającej w określonym związku. Ponadto autor wywodzi, że zakaz bigamii przewidziany w art. 13 §1 polskiego Kodeksu rodzinnego i opiekuńczego winien być stosowany w drodze analogii także w odniesieniu do instytucjonalnych związków prawnorodzinnych nieznanych prawu polskiemu zawsze wtedy, gdy zakaz taki wynika z prawa właściwego dla danego związku.
EN
Polish family law does not regulate same sex marriages or registered partnerships. Still, a growing number of persons whose records are kept in the Polish system of civil status registration (predominantly Polish citizens) enter into such unions abroad. The article is devoted to the presentation of arguments in favour of including information on same sex marriages and registered partnerships in the Polish register of civil status. The legal mechanism which, according to the Author, ought to be used in this respect is an annotation that could be made – further to art. 25.1 of the Law on Civil Status Acts of 2014 – next to the act of birth of the involved persons. The Author argues also that the ban on bigamy, which can be found in art. 13 §1 of the Polish Family and Guardianship Code, should be applied by analogy with regard to institutional family unions not regulated by Polish law, provided that such ban is envisaged by the law that governs the union in question.
2

Nawiązanie lub rozwiązanie przysposobienia w sprawach z elementem obcym a wpisy w polskim rejestrze stanu cywilnego

100%
Wojewoda M.
Kwartalnik Prawa Prywatnego
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2018
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vol. 27
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issue 3
723-754
EN
The establishment or termination of adoption bonds affects the civil status of the adopted person. First of all, it means the change legal parenthood with regard to the adoptee and, secondly, it usually results in changing their names and surnames. These changes of civil status entail the necessity of making appropriate entries in the civil status register, which is the official source of information on the personal and family position of the individual. The registration activities have a special dimension when they concern adoptions in the international context. The author analyses several different scenarios. Starting from adoption decrees issued by the Polish courts (according to Polish or foreign law), through foreign judgments (which might require recognition in Poland) to adoption contracts made abroad and invoked in front of the Polish Registrar in order be duly recorded. A number of remarks concerning the daily registration practice is also made with regard to the termination of adoption. Finally, a separate section of the article is devoted to the transcription to the Polish register of birth certificates issued abroad, which concern adopted persons.
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Wpływ prawomocnie orzeczonej separacji na stan cywilny małżonków

100%
Wojewoda M.
Kwartalnik Prawa Prywatnego
|
2021
|
vol. 30
|
issue 2
249-270
EN
Legal separation is a family law institution which has been in force in Poland since 1999. Following the court order on separation, the spouses no longer have any mutual rights or obligations in marriage. They do not inherit after each other either. Most effects of legal separation resemble those of divorce. Still, the spouses remain married and they cannot enter into a new marriage with other persons. The Author tries to find an answer to the question of whether legal separation changes the civil status of spouses. In the strict sense of the notion, civil status is understood as marital status. Accordingly, individuals are traditionally classified as being either single or married. However, notwithstanding the fact that a separated couple formally remains married, the situation of spouses, in the wake of a separation order, changes so radically that, according to the Author, it should be regarded as a third variant, namely the state of ‘being separated’. The proposition that legal separation changes the civil status of spouses is even more evident if one considers the definition of legal status in its broad sense. Such definition can be found in Article 2(1) of the Law on Civil Register of 2014. The provision reads as follows: ‘The civil status is a person’s legal situation, expressed by individual personal characteristics, as shaped by natural events, legal actions or judicial decisions, or the decisions of authorities, which is demonstrated in the civil register’. It should be observed that legal separation is based on a judicial decision that affects the legal situation of spouses and characterises their position in marriage. What is more, the court order on legal separation must always be notified to the Registry Office, so that an official mention on separation can be made in the marriage certificate. Thus, as the Author argues, there should be no doubt that legal separation constitutes one of the elements of the civil status of an individual. In the last part of the article, it is demonstrated that, unfortunately, legal separation is not adequately mirrored in the civil register. For example, it is technically impossible to add information on legal separation next to a birth certificate (although such information on divorce can be added). Moreover, due to the limited functions of the electronic application that is used to operate the civil register, there is no possibility to reflect separation in the death certificate or in the certificate on civil status. Therefore, these documents may create confusion, since the separated spouses are described therein as being ‘married’.
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Zaświadczenie o stanie cywilnym a małżeństwa jednopłciowe i związki partnerskie zawierane za granicą

100%
Wojewoda M.
Kwartalnik Prawa Prywatnego
|
2015
|
vol. 24
|
issue 3
693-725
EN
The new Polish Law on Civil Status Acts of November 28, 2014 has introduced a novel type of certificate issued on the basis of records to be found in the civil status register. The certificate of civil status, envisaged in Art. 44 and 49 of the new statute, is a single document which is meant to present all elements of civil status of an individual. It is clear, though, that the most important role of the certificate consists in giving official evidence of the marital status of an interested person. Accordingly, as the author argues, the certificate of civil status is an instrument which can be used to simplify the procedures of entering abroad into a homosexual marriage or a registered partnership, which are not known under Polish law. The article also explains why it is not possible to issue, in these situations, a certificate on marital capability – a document envisaged in Art. 83 of the Law on Civil Status Acts, which is reserved exclusively for persons planning a traditional (heterosexual) marriage abroad. A significant part of the article is devoted to discussing the possibility and potential benefits of recording, in the Polish civil status register, information on foreign unions – mostly homosexual – which are not known under Polish law. The author strongly supports such recording whenever, under applicable law, entering into a given union entails the prohibition of bigamy. The best technical way of recording this type of information in the Polish register seems to be an annotation made next to the birth certificate on the basis of Art. 25 of the Law on Civil Status Acts.
5

Transkrypcja aktu urodzenia dziecka, które zostało uznane za granicą

100%
Wojewoda M.
Kwartalnik Prawa Prywatnego
|
2017
|
vol. 26
|
issue 2
337-361
EN
The Polish Law on Civil Status Acts dated November 28, 2014 provides for the possibility of transcription of civil status documents issued abroad to the Polish register (Art. 104 ff). The article is devoted to the analysis of potential obstacles to the transcription of a foreign birth certificate in situations when paternity of the child was established abroad further to a voluntary acknowledgment of paternity. The author argues that the transcription procedures are based on the underlying assumption that foreign civil status documents should be trusted. Consequently, the substantive review of a birth certificate issued in another country is very limited. The main ground for refusing transcription is the ordre public clause which is applicable only in exceptional situation. In the final part of the article a critical analysis if offered with regard to Art. 105 section 3 of the 2014 Act whereby the Polish legislator has authorized the transcription of a foreign birth certificate concerning a child born in wedlock, where – according to the document – the father is not the husband despite the fact that no denial of husband’s paternity took place. According to the author, in all cases when Polish law is applicable with regard to child’s parentage, such transcription creates a dangerous situation, in which the official civil status register provides data that are in stark conflict with the Polish family law and the legally accepted presumption “Pater est quaem nuptio demonstrant”. It is argued that the transcription should take place only after the formal denial of husband’s paternity is effected.
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Zaświadczenie o stanie cywilnym – nowa konstrukcja w prawie o aktach stanu cywilnego

100%
Wojewoda M.
Kwartalnik Prawa Prywatnego
|
2015
|
vol. 24
|
issue 1
31-56
EN
The new Polish Law on Civil Status Acts dated November 28, 2014, which entered into force on March 1, 2015, was enacted with a view to replacing the traditional system of civil status books with a modern register run in the electronic form. The statute has also introduced a new type of certificate which can be issued on the basis of records to be found in the civil status register, evidencing the civil status of the interested person. The article discusses the prerequisites and the procedure of issuing the certificate, which can initiated only by a motion of the interested person. It also presents the obligatory elements of the certificate, which include name and surname, date and place of birth, sex, marriage status and the parents’ names concerning the person whose civil status is confirmed. The author of the publication explains basic differences between the certificate on civil status and other certificates issued from the register. In this light, the evidentiary value of the document is also discussed. A separate paragraph of the article is devoted to presenting special rules of issuing the certificate in the transitory period, during which the old civil status acts made in the paper form will be transferred to the new electronic register.
7
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Wybrane zagadnienia dotyczące transgranicznej zmiany miejsca zwykłego pobytu dziecka, którego rodzice żyją w rozłączeniu

63%
Wojewoda M., Kostwiński M.
Forum Prawnicze
|
2020
|
issue 2 (58)
22–39
EN
The article attempts to capture and analyse selected issues regarding parental responsibility in the event of a trans-border change of habitual residence of a child whose parents live apart in different countries when parents need to change the existing arrangements concerning their parental responsibilities and, in particular, the existing right of access with regard to the child. For clarification purposes, various problems which are covered by the article have been discussed using a case-study method with Polish-Italian family relations in the background. The main issues raised by the authors relate to the law applicable to parental responsibility as well as jurisdiction, recognition and enforcement of foreign court judgments (including court settlements) in matters of parental responsibility. Some attention is devoted also to the possibility of securing the implementation of court judgments made with regard to the parents’ right of access.
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Czynne delikty orzecznicze w Kodeksie cywilnym – od winy kwalifikowanej po niezgodność z prawem i… winę kwalifikowaną

63%
Wojewoda M., Szymura-Strumiłło K.
Kwartalnik Prawa Prywatnego
|
2018
|
vol. 27
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issue 2
435-455
EN
Civil liability of public authorities – as regulated in the Polish Civil Code of 1964 – has undergone important changes in the year 2004. The new wording of art. 417 ff. of the Code was meant to align the old statutory solutions with art. 77 of the Polish Constitution of 1997, which proclaims the right of individuals to get compensation for any damage inflicted by an unlawful exercise of public authority. Thus, it is unlawfulness that has become the key prerequisite to establish public authority’s liability. Interestingly, this holds true also in cases where an erroneous judicial ruling or administrative decision is the source of damage, provided that such ruling/decision is final and cannot be challenged in the usual way (art. 4171 §2 of the Civil Code). Still, to start the compensation case the plaintiff needs to have previously established the unlawfulness of the ruling/decision in special proceedings, which – at least with regard to judicial rulings – takes place in front of the Supreme Court. The above scheme imputes the abandonment of the qualified fault of the ‘author’ of the incriminated ruling/decision (i.e. the judge or the administrative organ) as a precondition to apply for civil compensation. It marks an important difference with the original wording of art. 418 of the Civil Code (now repealed), which – in case of juridical delicts – required that such qualified fault was established. According to the provision in question, compensation could be sought only if the giving of the ruling/decision constituted a criminal or disciplinary offence confirmed in separate proceedings (before initiating the case for damages). While presenting the evolution of the Polish regulations concerning juridical delicts, the authors of the article try to demonstrate that the apparent shift from qualified fault (art. 418 of the Civil Code in the original wording) to purely objective unlawfulness (art. 4171 §2) is only superficial if not fictitious. According to prevailing case law, the ‘unlawfulness’ of the ruling/decision concerns exclusively these juridical errors that are obvious, indisputable and which can be spotted without complicated legal analysis. In this light the authors point out that making such errors cannot happen without the clear fault of the judge or the administrative organ. This means that the subjective element, although hidden, is still present in the construction of the liability.
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