Nowa ustawa o prawie prywatnym międzynarodowym a małżeństwa i związki osób tej samej płci.

Abstract

The Author describes the turbulent fate of the amendment to the 2011 PIL Act (O.J. of 15.04.2011, No 80, item 432) presented both in the Parliament and the Senate, concerning same‑sex marriages and cohabiting couples. Pursuant to the amendment, those concerned that the conflict of laws rule provided in the article 48 of said act („The ability to conclude a marriage is determined towards each of the parties by the law of his or her nationality as of the day when the marriage is concluded”) would lead to a necessity of recognition of foreign homosexual relationships, opted for introduction of a legal definition of marriage understood as a relationship between a man and a woman, as well as for addition of a specific ordre public clause forbidding the application of any foreign rules of law on homosexual relationships. As a matter of fact, such proposal’s goal is to create a legal gap in the conflict of laws rules, as well as gaps in the provisions of the applicable systems of law, with an expectation that one may ignore foreign homosexual marriages and registered partnerships. The author criticizes the amendment, shows the irrationality of the idea of purposeful creation of legal gaps. She also explains why a conflict of laws act should not introduce substantive definitions of certain juridical concepts. Further, she objects the idea of “recognition” or “non‑recognition” of foreign marriages or registered partnerships on the conflict of laws level, which is contradictory to the long‑established approach of determining an applicable law for particular social situations and relationships. While showing the fundamentals of the ordre public idea, she stresses the inadmissibility of creating strict bans on application of specific provisions of foreign law, which do not take into account their contents and the consequences of their application in a particular case.