The country does not recognise same-sex marriages or civil unions

Poland is a devoutly Catholic country and its laws on same sex marriage are less tolerant of homosexuality than other EU states that recognise such marriages and civil unions that give gay couples the same benefits as heterosexual married couples.

Nowadays most European countries recognise same sex marriages and those that do not – like Italy and Cyprus – have laws that enable gay couples to commit to one another in civil unions with the same social, inheritance, pension and residence rights and moral and mutual obligations as married couples.

Every country has a civil registration system that enables major life events like births, marriages and deaths to be registered. When people get married their marriage is registered after it is solemnised according to legal requirements that ensure the couple marrying are old enough, have capacity to marry and are not within the prohibited degrees of consanguinity; and in Poland that the couple to be married are man and woman – there is no provision in Polish law that allows same sex marriages or civil unions to be registered.

So a gay couple lawfully married in another member state would be left in a legal vacuum on their return to Poland as a family unit. In private international law marriages that are recognised in one country but not in another are known as limping marriages.

As marriage is a question of status, the EU has no competence to require member states to have laws in place that recognise same sex marriages entered into nationally. Polish law is compliant with EU law as regards same sex marriages entered into in Poland. Recognition of gay marriages by registration could not arise in Poland as such marriages are not legally possible there. But what if a gay Polish couple living in Germany in the exercise of their right to freedom of movement as EU citizens and marry there where gay marriage is legally possible and wish to register their marriage in Poland?

The question arose in an appeal from a decision of a Polish administrative court that upheld a refusal to register a same-sex German marriage certificate of a Polish couple one of whom was also a German citizen. The appeal court referred a question of EU law to the Court of Justice of the EU (CJEU). The question was whether the Polish marriage registration law that precluded registration of a same sex marriage certificate from another member state, where the couple had set up as a family, was in accordance with the freedom of movement rights of EU citizens?

In a judgement handed down on November 25, 2025 the CJEU ruled that it is against EU law for a member state that does not recognise same sex marriages to have laws that preclude registration of marriages lawfully entered into by EU citizens in other member states because it hinders the right of every EU citizen to move freely within the union — and was also in breach of the Charter of Fundamental Rights of the EU that requires respect for family life in the implementation of freedom of movement.

EU law unlike US constitutional law cannot require member states to recognise same-sex marriages even though under European human rights law it is necessary to set up a legal framework for the recognition and protection of same sex couples — at least in the form civil unions or partnerships like those that exist in Italy and Cyprus.

What some states have not fully digested is that although the EU cannot legislate in areas of law outside its competences, it does not follow that national laws do not have to comply with EU law that, like the right of freedom of movement EU citizens, derive directly from EU treaty law.

The fact that many member states recently changed their laws to recognise same sex marriages means that the principle established in the Polish case last week is broader than the facts of that case. Basically, gay couples that set up a family unit and marry in gay friendly member states have to be given the same benefits as heterosexual married couples in other member states if they move there.

The argument put forward by Poland that it was entitled on public policy grounds to protect the fundamental principles enshrined in the Polish legal order that registration of same sex marriages from other EU member states would undermine the institution of marriage was rejected by the CJEU as not proportionate to that purpose. The court was not requiring Poland to change its laws so as to make same sex marriages generally lawful in Poland but merely to register gay marriages of Polish EU citizens in other member states.

In private international law when couples get married in foreign countries, their marriage is recognised under rules that broadly state that procedural requirements are determined by the law of the place of celebration and its substantive validity by the law of the couple’s domicile or nationality. In the Polish case the essential validity of the marriage is governed by Polish law that does not permit same sex marriages. However, the question referred to the CJEU was whether the Polish marriage certification law that precluded the registration of a German same sex marriage certificate — that was assumed to have been lawfully issued — was in accordance with the freedom of movement rights of EU citizens and the CJEU answer was that it was not in accordance with EU law.

Most EU countries either recognise same sex marriages or some form of civil partnerships whereby couples of the same sex can solemnise their commitment to one another officially with the same incidents and benefits as married heterosexual couples.

In UK in 2013 a Conservative government accepted that true equality was only possible if gay couples were allowed to marry just like straight men and women — whereupon there was an explosion of husbands and wives among gay people!