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Polish marriage law in the context of social changes and evolution of law in Europe
The conference titled ’Polish marriage law in the context of social changes and evolution of law in Europe’ is organised as part of Central European Professors’ Network 2021 coordinated by the Ferenc Mádl Institute of Comparative Law. The Professors’ Network, with the active participation of experts from seven different countries (ie. Czech Republic, Croatia, Poland, Hungary, Serbia , Slovakia, Slovenia), organises events with the primary aim to draw attention of the European citizens to the topics which are important and significant in connection with the future of Europe, in particular of Central Europe.
During the seminar Dr. hab. Prof. INP PAN Marek Andrzejewski (Adam Mickiewicz University) intends to discuss with the lecturers and students of pedagogy from Faculty of Educational Studies Department, the social changes taking place in Europe which affects the understanding of marriage. The thesis of Marek Andrzejewski talks lies in an observation of an alarming tendency to downplay marriage, both when it comes to contracting it or ending it in divorce.
It is easy to prove that the status of marriage is obscured by new legislations that seem to imply that marriage is a way of life everybody is entitled to, irrespective of sex, mental condition or disability, or, at some cultures, also of age. Another approach, also undermining the status of marriage, and complementing the previous approach though from a different angle, postulates easy procedures leading to its termination. In most western countries the divorce procedure is extremely simplified, as it is possible to cancel marriage on the basis of a request filed by one of the spouses, thus eliminating any need to present any premises for the cancellation. Due to such a simplified procedure, in some countries divorce case takes place not in a court but in a notary or lower-level administrative office. Thus, it is difficult to dispel the impression that such legal procedures reflect in fact the process of deinstitutionalization of marriage, well known to and widely described by sociologists studying contemporary western societies.
Polish law is trying the resist this change. The principle of family law is the stability of a marriage, which, however, should not be confused with its indissolubility. Marriage is seen as a union between a man and a woman (Art. 18 of the Constitution of PR); it cannot be contracted by people affected by serious mental diseases or disabilities. Divorce is granted on the basis of grounds proven in the course of a legal court procedure in order to find out if a complete and permanent breakdown of a marriage has taken place.
In Poland marriage law is vigorously debated in the doctrine of family law, and the future will show whether marriage law will navigate towards liberal solutions or will retain its specificity.
Event reportWebinar hosted by Prof. Marek Andrzejewski “Polish marriage law in the context of social changes and evolution of law in Europe” The webinar was an event organised as part of the Central European Professors' Network, with the main aim of promoting the project. The event took place on 26 May 2021 at the Faculty of Educational Studies of Adam Mickiewicz University in Poznań. The event was attended by the staff members and the students of the Faculty of Educational Studies. The lecture was tailored in such a way as to render legal issues understandable to the audience who was not composed of lawyers. Since participants of the webinar deal with family issues in a pedagogical context, this is why legal considerations were presented in a broader cultural context so as to reveal their social background. The aim was to make the issues raised in the webinar more accessible. About thirty people attended the event. The lecture was followed by the Q&A session, during which participants asked detailed questions concerning divorce judgement, parental responsibility and the links between family law and a canon law. In the beginning Professor Marek Andrzejewski introduced the idea of the project of Central European Professors’ Network in which researchers from Central Europe are looking for what is common in countries located in that part of Europe. He emphasized the very idea that triggered launching this network, which is a cultural specificity of Central Europe (which differs from Western and Eastern Europe). He added that this specificity should be highlighted and revealed so as to protect the identity of the region as well as the identity of particular countries and nations. This does not imply ignoring the obvious differences between the countries. He then pointed out the Ferenc Mádl Institute of Comparative Law in Budapest as the Institution that coordinates the project and at the specificity of what is described as Comparative law. During the webinar, social changes taking place in Europe which affect the understanding of marriage were presented. These changes influence the social rank of marriage, its importance for particular people as well as the ways of entering into marriage and the ways of terminating it. These unfavorable changes are triggered by a whole spectrum of universal phenomena such as consumerism, contemporary currents of thought such as neo-Marxism, gender, secularization, a change of family roles resulting from the process of women empowerment and emancipation, immigration, and many others. These phenomena bring about different transformations, among them an increasing number of divorces, or weakened family ties and their side-effects such as neglect of maintenance obligations or domestic violence. In general, a tendency to downplay marriage has been observed: both as regards entering into it as well as terminating it. It is easy to prove that the status of marriage is obscured by new legislations that seem to imply that marriage is a way of life everybody is entitled to, irrespective of sex, mental condition or disability, or, at some cultures, also of age. In Poland, in accordance with the standards of human rights protection (UN Universal Declaration of Human Rights of 1948) marriage is seen as a union between a man and a woman (Art. 18 of the Constitution of Polish Republic; Art. 1 of the Family Guardianship Code). Unlike in many countries of Central Europe, no legislation on civil partnership was accepted, though there is no constitutional obstacle. Marriage cannot be entered into by persons of the same sex or by people affected by serious mental diseases or disabilities (Art. 12 FGC). In 2016 The Constitutional Tribunal of the Polish Republic of ruled that this law is not a sign of discrimination against these people. Rather, the issue of a potential threat to the stability of the marriage was raised as well as a difficulty to meet marital and parental responsibility by the persons with disabilities. Poland ratified the United Nations Convention on the Rights of Persons with Disabilities of 2006, yet it appealed Art. 23 of this Convention, which talks about full rights of people with disabilities to enter into marriage and start a family. Professor Andrzejewski later said that significant changes in marriage law, though raising many doubts, can be observed not only in the way people enter it but also how they terminate it. An erosion of the permanence of marriage was one of the consequences of introduction of the idea of a divorce at the request of the spouses (as it was done earlier in the case of civil partnerships), which eliminates the need to present any grounds for the cancellation of marriage or to go through some legal procedures. This procedure has already been introduced in most European countries. Because it has been so simplified, in some countries a divorce case takes place not in a court but in a notary or lower-level administrative office. Supporters of the liberal divorce laws point out that marriage dissolution should remind its contraction, which means that it should be a result of concerted will of both parties. This seemingly attractive argument has however one major weakness: the parties that are getting a divorce are in the state of disagreement; they are quarrelling and either spouse can utter some statements that will lead to divorce but we never know if the statements express their free will or whether they are a result of a blackmail (economic or psychic pressure). The statements are formulated during a serious mental crisis, during a breakdown, which may severely impair the thinking process, including due care over children. Changes introduced to provisions regulating the way people enter into marriage or dissolve it in fact illustrate the process of deinstitutionalization of marriage, well known to and widely described by sociologists studying contemporary western societies. This trend is also observed in Poland, though it is not as strong as in the Scandinavian or western European countries.
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