Ewolucja pojęcia małżeństwa w prawie europejskim

Abstract

When the European Communities were created – in the 1950s – the need to protect human rights was not included in the treaties, as these rights were already guaranteed in the European Convention on Human Rights and Fundamental Freedoms, to which the founding countries were parties. In addition, the view prevailed that constitutional courts of individual states would watch over these laws. In the 1980s, under the influence of political changes and the expansion of the EUʼs areas of activity, it was necessary to enshrine observance of fundamental rights to the fundamental principle of the EU. In terms of human rights, a commonly known and articulated definition was used in the Universal Declaration of Human Rights, which in point 1 of Art. 16 says: “Men and women, regardless of any differences in race, nationality or religion, have the right after reaching the age of majority to marry”. In the European perspective, we find a similar provision in art. 12 of the European Convention on Human Rights: “Men and women of marriageable age have the right to marry and to found a family in accordance with the national laws governing the exercise of these rights”. However, the provision in the EU Charter of Fundamental Rights is presented in art. 9 as follows: “The right to marry and the right to found a family are guaranteed in accordance with national laws”. Such a wording does not define a marriage or a family. New quality has been introduced here; the lack of a precise definition opens the way to naming a married couple or family, such relationships that did not fit in previous definitions. This means updating to cover cases where national legislation recognizes other possibilities of family formation than marriage. Such a record does not directly mean that same-sex marriages are granted or prohibited. As we can see, the scope of the concept of marriage and family has been expanded. The goodness of marriage is a natural good, so it cannot be made dependent on the will of the legislator. The path to changing the concept of marriage led through a change in the understanding of the family. The EU Charter of Fundamental Rights was intended to cover cases in which national legislation recognizes other possibilities of family formation than marriage. Thus, the entry in the Charter has been shaped in such a way as to avoid a clear response to the new issue of same-sex relationships; that is, it neither permits nor prohibits because of trends based on social movements. This does not affect the institution of marriage itself, but allows the recognition of other forms of family found in the internal regulations of the states as corresponding to marriage.