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Autonomia zawarcia małżeństwa

100%

Pietrzykowski K.

Rejent

2024

issue 11 (403)

15-34

The autonomy of the will of the parties is considered the most fundamental principle of civil law or private law, which manifests itself as the principle of freedom of contract, understood as a legally defined range of actions that allow the formation of legal relations. Freedom of contract encom-passes four essential features: the freedom to conclude or not to conclude a contract, the freedom to choose a counterparty, the ability of the parties to shape the content of the contract in princi-ple, and the freedom to choose the form of the contract. Autonomy of will and freedom of con-tract also apply to marriage. This is determined by the fact that declarations of entering into mar-riage are declarations of will within the meaning of the Civil Code, so the conclusion of marriage is a bilateral legal act, and therefore a contract within the meaning of the Civil Code. Under current Po-lish law, there is freedom to marry or not to marry. A feature of the freedom to marry is the ability to freely choose a contracting party. However, this freedom is limited, since under Polish law mar-riage is contracted between a man and a woman. In this regard, it should be emphasized that Ar-ticle 18 of the Constitution does not imply prohibitions on the introduction of regulations per-mitting both partnerships and same-sex marriage. The ability of the parties to basically freely sha-pe the content of the contract was, with regard to marriage, limited to the choice of name and conclusion. The freedom to choose the form of marriage has existed in Poland since 1998, when an alternative civil form and a religious form with civil effect were introduced. If, on the other hand, the marriage is contracted outside Poland, it is sufficient to observe the form required by the native law of both spouses or by the common law of the spouses' place of residence or habitual residen-ce at the time of the marriage.

Autonomia w prawie rodzinnym - sprawy o rozwód

67%

Andrzejewski M.

Rejent

2024

issue 11 (403)

62-78

The article is a voice in the discussion on the so-called out-of-court divorces. The Ministry of Justice, which wants to introduce them in Poland, has the support of the notary corporation, which believes that divorce may become a notarial act in the future. The author disputes this view. He argues against the thesis that divorce carried out based on consensual declarations of the will of the spouses is the realiza-tion of the idea of autonomy of the parties (spouses). He stresses that the concept of autonomy in family law should be understood differently than in contract law. In particular, it is necessary to consider such divorces where one spouse was harmed in marriage, blackmailed, or victimized. Such a person under pressure from their spouse will make the requested statement, which then will be a result of submission to blackmail or violence, not the result of an autonomous will. The mistake of the drafters is to triviali-ze marriage by treating it as a contract and, therefore, downplaying the family context.

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2 Rejent

1 Andrzejewski M.

1 Pietrzykowski K.

2 2024

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Autonomia zawarcia małżeństwa

Autonomia w prawie rodzinnym - sprawy o rozwód