Marriage as a union between a female and a man. Constitutional perspective – is the title of the collective publication, which was published by the Publishing home of the Institute of Justice. Monography is circumstantial memento dedicated to matrimony from a constitutional perspective.
"Marriage as a union between a female and a man, a family, motherhood and parenthood are protected and cared for by the Republic of Poland" – in this passage of the Basic Act dated 2 April 1997, 1 of the basic principles of primaries was formulated, which is an component of constitutional axiology of the Republic of Poland. "By formulating the above standard, the body was undoubtedly guided by the awareness of the value of matrimony and household and their importance for the existence and functioning of the nation," we read in the introduction to the publication, whose technological editor is Prof. Paweł Sobczyk.
The position of matrimony as a union between a female and a man in the Polish legal strategy has been confirmed respective times by the Constitutional Court. The publication cites many judgments of the Constitutional Court, specified as judgments of 8 May 2001, 4 May 2004 and 18 May 2005, erstwhile the Constitutional Tribunal pointed out that "in the light of the axiology adopted in the Constitution in force in Poland, household and matrimony are values which occupy a peculiarly advanced rank in the hierarchy of constitutional values". In another judgement (11 May 2005) The Constitutional Court ruled that according to the Constitution, there is only a relation between a female and a man. This wording is crucial due to the establishment of a constitutional definition of matrimony and the protection and care of the state. A contrario (the other conclusion) matrimony is not a union of 2 or more persons of the same sex, specified union does not benefit from state protection and care. According to the analyses presented, the definition of matrimony could be changed in Poland only on the basis of changes made in the basic law.
"Marriage as a relation of a female and a Man in the Constitution of the Republic of Poland" is the title of a chapter that straight refers to the title of this multi-authored monograph. In this chapter, Prof. Jarosław Szymanek writes that "to rise the institution of matrimony to the rank of a constitutional resolution means, first of all, that it was a applicable social and legal institution that found its constitutional dimension for at least a fewer reasons. Firstly, due to the fact that it is 1 of the forms of implementation of the fundamental rights of the individual, i.e. the right to marry. Secondly, it is, in the opinion of the authority creating the basic law, an crucial institution not only legal, but above all socio-political, which in turn means that it exceeds the dimension of individual law, addressed exclusively to the individual. Thirdly, due to the fact that the constitutional legislature explicitly advocates a circumstantial quantum of value. The founders of the constitution were committed to affirming those solutions and institutions that are appropriate and needed in their opinion, and at the same time disapproval of those that are considered inappropriate, undesirable or even harmful."
Professor Szymanek recalls that the Constitution of the Republic of Poland of 1997 was the first fundamental law which contained a provision relating to expressis verbis to a matrimony defined as a relation between a female and a man. Earlier, it was not essential to clarify the category of constitutional matrimony in this way, due to the fact that there was a common belief that the concept of household or matrimony was a well-known and without any interpretational doubts. The authors of the Constitution of the Republic of Poland consciously and deliberately advocated the conventional explanation of marriage, according to which matrimony is simply a union of 2 people who accomplish completeness at the levels of physical, emotional, disposable, spiritual, social and economic.
Prof. Anna Tunia writes that the constitutional definition of matrimony is fragmentary, as it does not mention all the characteristics of matrimony (except for the characteristic of heterosexuality and the indirectly expressed characteristic of monogamy), nor does it specify its intent or indicate the legal effects of its conclusion. However, this definition is adequate to explain what a matrimony is in Polish law. "In Article 18 of the Constitution the normative definition of marriage, according to which it is simply a relation between a female and a man, a monogamous and heterogeneous relationship, is included, and that only so understood matrimony union does the body warrant protection and legal care, thus excluding the anticipation of recognising and guaranteeing the same-sex marriage, as well as the actual homosexual and heterosexual unions," the prof. emphasises.
The chapter by Prof. Anna Tuni entitled "Normal concept of marriage" recalls that the legitimacy of defining the word "marriage" at the level of the Constitution was questioned in the course of legislative work on its text. In the first text of Article 18 of the Constitution, the phrase “marriage as a union between a female and a man” was not used, but was added only in constitutional work (in the second reading of the draft by the National Assembly). The definition of matrimony as a union between a female and a man was included in the Constitution with a conscious intention to defend against possible changes, as confirmed, for example, by a discussion on the Constitutional Commission of the National Assembly on 4 April 1995. Initially, it was argued that "marriage" was an existing concept, that is, 1 whose meaning was shaped through the years of human development, and there is no uncertainty that matrimony is simply a union between a female and a man, for it is an apparent concept, a natural law. However, in order to destruct any interpretational doubt, it was yet decided to specify the concept of matrimony in a constitutional provision in order to regulation out another marriages than a relation between a female and a man.
"The authors of Article 18 of the Constitution preferred to prevent attempts to legalise single-sex marriages against the legal tendency to recognise same-sex marriages in any European countries. As it is noted in the case-law and doctrine, the institution of matrimony created by a female and a man who, due to his uniqueness, manifests itself as a form of individual union between 2 people both in the private and legal spheres, excludes the anticipation of any form of weakening the sustainability of marriages by average legislation, in peculiar by introducing rules governing the actually increasingly common social extramarital relationships, including single-sex unions (...). In the Constitution, the institution of matrimony cannot modify the legislative authority, even by ratification of an global agreement besides carried out in a qualified form. The Constitution, due to its peculiar power, remains the highest law of the Republic of Poland and benefits from the primacy of application and application in its territory" – says Prof. Anna Tunia.
The book besides discusses the problem of "judge activism", present at various levels of the case law applied by various transnational organisations, attempting to impose a distorted definition of matrimony on society. In consequence to these demagogue attempts to disorderly the authors mention the past of the legal position of marriage, originating from natural law and presenting its binding in Roman law. It is besides pointed out that the change within the meaning of the matrimony institution in Poland took place at the time of the partitions, erstwhile the authorities of individual possessive states under the influence of fresh trends, initiated during the Reformation period, introduced civilian marriages. The question of matrimony as the unity of man and female is besides raised in the light of the teaching of the Church.
Source: KAI / Paweł Grabowski
Sacrament, not contract. matrimony and annulment
