Partially critical gloss to the resolution of the Supreme Court – Civil Chamber (7) of May 10, 2023, III CZP 71/22

Abstract

In the thesis to the resolution under comment, the Supreme Court assumed that “regardless of whether the requirements provided for in Article 8 of the Family and Guardianship Code have been met, a marriage is concluded when a man and a woman who enter into marriage in accordance with the internal law of a church or some other religious association declare their intention, in the presence of a clergyman, to simultaneously conclude a marriage in accordance with the Polish law, following which the head of births, marriages and deaths registry office draws up a marriage certificate”. While such a thesis deserves approval, one cannot agree with the position of the Supreme Court expressed in the justification of the resolution, according to which the drawing up of the marriage certificate is constitutive in nature and has retroactive effect. According to the Court, this is an exception to the principle of declarativeness of certificate of personal status. According to the author of this gloss, a marriage certificate of marriage concluded in a confessional form loses its constitutive character at the moment it is drawn up by the head of the registry office. As a result of the application of legal fiction regulated in Article 1 § 2 sentence 2 of the Family and Guardianship Code, it then becomes a declarative act, as the marriage is deemed to have been concluded at the moment of the declaration of will by the spouses at the presence of a clergyman.