Same-sex couple take case to Strasbourg after Poland refuses to recognise overseas marriage

A Polish same-sex couple have lost their long-running effort to have their overseas marriage recognised by Poland’s legal system. They have now pledged to take the case to the European Court of Human Rights in Strasbourg.

Agata Kowalska, a journalist, and Emilia Barabasz, a lawyer, married in Germany in 2018. When they returned to Poland, they sought to register their marriage certificate in the Polish civil registry.

However, the registry office refused, on the basis that same-sex marriage is not recognised in Poland. The couple appealed the decision but saw their case rejected first by the governor of Masovia Province – a government appointee – and then by the provincial administrative court in Warsaw.

This week, they saw their final domestic route of appeal closed, after the Supreme Administrative Court (NSA) decided to uphold the previous decisions to reject the registration of their marriage.

In its justification for the ruling, the NSA pointed to the “unambiguous” content of article 18 of Poland’s constitution, reports news outlet OKO.press. That article states that: “Marriage as a union between a man and a woman…[is] under the protection and care of the Republic of Poland.”

At the same time, however, the court found that article 18 does not prevent parliament from introducing the institution of same-sex civil partnerships in future. A similar ruling was recently issued by the NSA when it rejected a bid by another same-sex couple to have their foreign marriage recognised.

“We are not surprised by the verdict,” Kowalska told OKO.press. “Courts fear political consequences. Our arguments were completely ignored. The possibility of introducing civil unions does not apply to us at all. The court did not address the problem of incorrect civil status records that we still have to use.”

Kowalska notes that the lack of recognition of their marriage has left her and Barabasz in a “legal vacuum”. When dealing with state offices, banks or other institutions, the couple must “tick the box saying we are unmarried”, which is a “lie”, says Kowalska.

“It’s humiliating,” adds Barabasz. “It’s 2022. We are in the EU. A neighbouring country, Germany, issued us a document that we are obliged to notify the Polish registry office about. We did it. And our state, instead of simply putting a note in our files that it was issued, prefers to look away and leave us in a legal vacuum.”

Their lawyer, Anna Mazurczak, told news outlet Noizz that the couple are not arguing that Poland should “recognise all the effects of their marriage”, but simply that it should formally record the fact that they married abroad.

The pair now say they will take the case to Strasbourg, as they believe their right to respect for private and family life – which is protected under article 8 of the European Convention on Human Rights – has been violated.

For the last three years running, Poland has been ranked as the worst country in the EU for LBGT people by ILGA-Europe, a Brussels-based NGO. As well as being unable to marry, same-sex couples cannot form any legally recognised partnerships or adopt children.

The current national-conservative Law and Justice (PiS) government has in recent years led a vociferous campaign against what it calls “LGBT ideology”, which it presents as a dangerous set of ideas being imposed by the West that threatens to destroy Poland’s culture, identity, families and even the state itself.

After the European Commission this month announced plans to ensure that the rights of same-sex parents are recognised in all member states, Poland’s justice ministry announced that it would veto them.

Main image credit: Dawid Zuchowicz / Agencja Gazeta

Daniel Tilles

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.