Three drafts of Civil Partnership Acts

Writing these words I am watching a parliamentary “debate” on the drafts of Civil Partnership Acts (first reading of three bills by the representatives of Palikot’s Movement, Democratic Left Alliance and Civic Platform). I must admit that it is difficult for me to comment on these drafts in the atmosphere which was caused by this “debate”. Unfortunately, the statements of some representatives concerning these bills show not only enormous lack of knowledge but also the will to hurt homosexual Poles and some of them are just pure manifestations of political decay of good manners, which is difficult for me to accept as I am a lawyer. It is difficult to find out why Poles choose people who do not tell the truth in public debate and are willing to humiliate their “employers”, that is the members of Polish society as their representatives. For instance – representative Krystyna Pawłowicz was supposed to say (I quote after “Gazeta Wyborcza” portal): “The phenomenon of one-sex relationships is against nature. The bills are against the constitution, they are harmful, unjust and breach the rule of equality. (…) They make it possible to flaunt sexual likings in public and, in this way, they disturb the sense of aesthetics and morality of the majority of Poles”. In this short statement, we can find so many lies, attempts to manipulate and two (successful) attempts to humiliate millions of homosexual employers who support the thought-provoking activity of this lady by paying taxes.

First of all, one-sex relationships are not against nature because they are its immanent part. Secondly, the bills are not against the constitution. According to some lawyers, whose opinions were broadly negated, for example, by such an authority as professor Wyrzykowski – a retired judge of the Constitutional Tribunal – and who expressed their views in this case, these bills require a right reflection during legislative work. Thirdly, civil partnerships are not harmful but useful because they stabilise interpersonal relations and formalising them will make the lives of people who live in such relationships easier, which should, as a consequence, increase the social welfare. Fourthly, civil partnerships are not unjust, unless we consider it unfair when citizens are treated in a non-discriminative way. Fifthly, for the same reasons, civil partnerships obviously do not breach the rule of equity. Sixthly, civil partnerships do not mean “flaunting sexual likings” because they do not consist of having sex with somebody on the lawn, in spite of reprehensible suppositions of the above mentioned representative (maybe modest experience of this single representative makes her think of the results of the institutionalisation of such interpersonal relationships like marriage or civil partnership in this way, but the reality is different). Seventhly, civil partnerships do not breach the sense of aesthetics or morality (although for sure they are against the views of catholic Church hierarchy, but it should not broadly influence the standpoint of the legislator of the independent country) and such a statement is so deeply offensive and undignified that it shocks, especially if a lawyer was its author.

It is very sad that open, intelligent, mature and tolerant society votes for people who are not mature enough to hold legislative power and participate in a public debate. Some representatives’ statements expressed during the debate on drafts of civil partnership acts prove that Polish society made decisions in 2011 which deny its sense. Our society does not deserve such disappointing representatives. As a lawyer and a Pole, I am ashamed of what I have heard from parliament representatives.

Putting emotions aside, I would like to briefly familiarise you with guidelines and differences between the three bills. But I must admit that to some degree I contributed to creating each of them.

Let’s start with explaining the issue of names. Palikot’s Movement and Democratic Left Alliance proposed two bills based on different axiological assumptions, however, they coincide when it comes to the scope of legal consequences of concluding them, which will appear within distinct acts.

The first bill (let’s call it “imperative”) assumes (in Article VI) that the discipline of right and duties within the scope of civil partnership is determined by the act and, basically, (apart from the issue of creating the property community) there is no possibility to modify the act regime, according to which “partners have equal rights and duties in a civil relationship, they help and support each other as well as take care of maintaining the bond of shared life”. Lawyers appointed by non-governmental organisations and informal groups, which are active for the rights of LGBT community, are the authors of this bill. The second bill patronised by the so called Initiative Group (let’s call it “consensual”) is based on a quite innovative assumption, according to which (Article VI) “partners determine their mutual rights and financial or personal duties in order to organise their life together in the agreement of civil partnership concluded in the form of notarial deed”. The bills are different when it comes to axiological frame – the first assumes that civil partnership would be regulated by the legislator, the second one trusts citizens’ sense. At last, the third bill (proposed by the representatives of Civic Platform) assumes that civil partnership would be regulated by the agreement between two parties (consensually), but the draft of the act’s regulation assumes in an imperative way the equity of both parties and duties of loyalty, help, support and cooperation of the parties.

The bill of Civic Platform can be called consensual-imperative and at the same time – taking the scale of interference in existing legal system – it is the most conservative one (and let’s call it this way).

If we had to appraise these three bills according to which benefits they bring to people, then undoubtedly “consensual” and “imperative” projects show more far-reaching solutions. They propose changes of 153 existing acts, starting with codes (code of administrative proceedings, civil code, code of civil procedure, criminal code and code of criminal procedure) and ending with e.g. the act on salaries of European Parliament representatives

(a change in this act involves the extension of the scope of representative’s property statement on the property which is the part of legal community of civil partnership). The “conservative” bill assumes changes in 57 existing acts. However, it should be noticed that basically the differences between draft of changes in existing acts, between “consensual” and “imperative” bills and “conservative” bill amount to the eradication (in the case of the latter bill) of certain consequences of entering into civil partnership, which also appear in the case of entering into marriage. It is mainly about the right to mutual settlement of income tax, the right to being counted to the first tax group in the scope of inheritance tax (so, to the right to be exempted from tax in the case of inheriting from a late partner), the right to compensation after partner’s death, the right to be covered by a partner’s health insurance and the right to attendance allowance while taking care of sick partner or the right to family pension after partner’s death. Taking into account the fact that people in civil partnership (according to “conservative” bill) are people who remain in “permanent shared life”, these faults of the conservative bill are difficult to explain and can arouse reservations from constitutional non-discrimination rule’s point of view (especially, when we consider the output of the jurisdiction of European Court of Human Rights and the Court of Justice of the European Union, which also decodes the constitutional standard existing in Poland, especially in the case of a possible abstract control over constitutionality of the act), although they can be defended, appealing to the need of differentiating the level of “favouring” constitutionally protected marriages and civil partnerships which are deprived of explicitly stated constitutional protection.

None of these bills interferes in the institution of marriage and does not assume adopting children by people in civil partnerships. What is more, “consensual” and “imperative” bills are designed in such a way, that they assume that there is no legal bond between a partner and his or her partner’s family members – it also concerns partner’s children. This quite unnatural idea (which results e.g. in no privilege in the scope of providing childcare by one partner if his or her partner dies and leaves a minor child) is however the answer to social expectations in the scope of excluding the so called “child adoption by homosexual couples”. Although this idea is imperfect and difficult to imagine in real life (in the case described above, a child will be adopted by strangers or will end up in an orphanage and will not be with a partner with whom it actually created a family), it seems that restraint of the authors of the bill was sociologically justified. It must also be added that all three projects assume the accessibility of institution (or agreement) of civil partnership for homosexual and heterosexual couples. “Consensual” and “imperative” bills assume also (apart from other prerequisites) the possibility to annul at the request of prosecutor a civil partnership agreement, which was concluded for the sake of appearances. It is of great importance because when earlier on there were discussions on formalising civil partnerships in Poland, there were concerns (though far-reaching) about concluding such partnership agreements only to avoid giving testimonies by persons active in crime groups and concerns about abusing this institution in any other way. What is more, these two bills assume that in such a case when parties benefited in any way from public funds (while they were in a civil partnership), by virtue of act, they would be burdened with maintenance obligation (for ex-partner) after the relationship is over – which was predicted with respect to the criticism that civil partnerships are “privileges without responsibilities”. Finally, all three bills assume the possibility to terminate a civil partnership in a consensual way (by parties’ consensual declarations of will), and additionally by partner’s death and by legal termination. “Consensual” bill additionally gives the possibility of unilateral dissolution by means of “notice”.

It seems that “imperative” bill is the most natural and congruent with Polish tradition and legal culture and with expectations of people involved (homosexual and heterosexual couples) because it combines and balances the elements of flexibility and stability. In fact, it is a kind of a compromise between conservative bill of Civic Platform and progressive “consensual” bill. Consensual bill is “the most up-to-date” (after all, it assumes independent creation of a set of rights and duties in a civil partnership and also allows it to be unilaterally terminated by means of notice). “Conservative” bill assumes burdening a civil partnership with a lot of duties and “inconveniences” (for example the obligation to exclude an officer in a case concerning a partner, the loss of benefits connected with employment relationship e.g. company flat if employee’s partner lives in a given town, restrictions on employment in educational and higher education institutions if it had to result in direct official subordination between partners, the obligation to disclose partners’ benefits in Benefit Register filled in by persons performing some public functions etc.), and it gives

the fewest entitlements and benefits (let me mention only the issue of joint taxation or inheritance taxation after a partner). As such, the bill has supposedly the biggest chances to be passed and the Minister of Finances should be its biggest supporter (after a careful reading). However, even such a conservative bill has many opponents. It is sad that they cannot lead an honest discussion but they prefer lying and using verbal abuses as well as manipulating public opinion.

These are author’s own opinions are not representative of institutions and subjects in which he practises his profession or is employed or with which he is connected in any other way.

The text has been originally published on liberte.pl

 

Translation: Anita Stradomska

Proof – reading: Katarzyna Różańska

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