The legal nature of drafting a marriage certificate concluded in a religious form and the meaning of the notion in Article 8 § 3 of the Family and Guardianship Code. Gloss to the Supreme Court resolution of May 10, 2023, III CZP 71/22

Abstract

In the approving gloss, the resolution of the Supreme Court of May 10, 2023, was analysed, III CZP 71/22, in which consideration was given to the nature of drawing up a marriage certificate concluded in a religious form. The resolution in question is a review of existing views in the doctrine. The considerations undertaken by the Court were supported by a dogmatic and comparative analysis. A critical assessment of each standpoint has led to the conclusion that drawing up a marriage certificate by the head of the register of deeds concluded in a religious form is of constitutive character. Against this background, the issue of the meaning of the time limit indicated in Article 8 § 3 of the Civil Code is also particularly outlined. The view adopted by the Supreme Court on the administrative nature of this term constitutes a break in the hitherto accepted line of jurisprudence of this Court. This thesis is not obvious also from the perspective of the dichotomous (so far) division of the doctrine, which characterises the 5-day term indicated in the Polish Family Relations Code as either instructional or lapsed. The author responded positively to the views adopted in the resolution, but enriched the argument with her own observations and postulates.