Same-Sex Relationships

by Jens M Scherpe

1. Overview

The legal recognition of same-sex relationships is one of the most remarkable developments in European family law in the 20th century. After all, in almost all European jurisdictions, homosexual acts were still criminalized at the beginning of that century, and in some, particularly eastern European countries, the relevant criminal law provisions were repealed only very recently. Nevertheless, discrimination because of sexual orientation, both socially and legally, still exists in many European countries (discrimination (general); discrimination (employment law)).

a) Legal recognition of same-sex relationships

Same-sex relationships are not yet recognized by the law in all European jurisdictions. Even where they are, the legal rules often differ significantly from those available to opposite-sex couples. Basically three forms of formal legal recognition of same-sex relationships can be found in Europe.

(1) Opening up marriage to same-sex couples. The Netherlands, Belgium, Spain, Norway, Sweden, Portugal and Iceland fall into this category.

(2) The introduction of a legal regime exclusively for same-sex couples that is (more or less) functionally equivalent to marriage. Examples for this are the ‘civil partnership’ in the United Kingdom, the registreret partnerskab/rekisteröidystä parisuhteesta in Denmark and Finland, the Eingetragene Lebenspartnerschaft in Germany and the Eingetragene Partnerschaft in Austria and Switzerland.

(3) The introduction of a legal regime which is open to both same-sex and opposite-sex couples, the legal consequences of which often are of a significantly lower impact than that of marriage. Some of these regimes, like the French pacte civil de solidarité (PACS) require a contract or registration, others apply when certain facts exist (eg Croatia). In some such jurisdictions, the legislature has used the same legal solution for two family law ‘problems’: namely, the growing need for the legal recognition of same-sex couples on the one hand and, more generally, of cohabiting couples/extra-marital relationships generally on the other. The utility of this is questionable as the (legal) interests of the two groups involved (couples who cannot marry because they are of the same sex and couples who do not want to marry) often are quite different (cohabitation).

b) Same-sex relationships and children

In some European countries (eg the Netherlands, Belgium, Sweden, Iceland, Spain and the United Kingdom), same-sex couples can adopt children jointly (adoption) and/or lesbian couples have full access to assisted reproductive technology and can become joint parents (parentage), eg in the United Kingdom and Iceland. In other jurisdictions, it is only possible to become joint parents in relation to a child of the other partner from a previous relationship (or adoption) through step-child adoption, and in some jurisdictions no legal rules concerning the acquisition of parentage for same-sex partners exist. Finally, in several jurisdictions it is possible for partners in a same-sex relationship to obtain parental responsibility in part or in full for children of the other partner from a previous relationship.

2. Legal development in Europe

In 1973, the Swedish lagutskottet (committee on legal affairs) stated that ‘from society’s point of view, two persons of the same sex living together as a couple was a perfectly acceptable form of family life’. This was a remarkable step at the time, considering that in most European jurisdictions (and in Sweden until 1944), homosexual acts were still criminalized. In 1977, a commission was set up to investigate the legal situation of homosexuals in Sweden, and the report delivered in 1984 led to the existing rules for cohabitation of opposite-sex couples being extended to same-sex couples. The introduction of same-sex marriage or a functional equivalent at that time was rejected. Nevertheless, Sweden was the first jurisdiction in Europe where same-sex relationships were expressly recognized by family law.

In Denmark, a commission in 1984 was given the task of making recommendations on how to end legal discrimination on grounds of sexual orientation; the remit expressly included exploring the possibility of creating a legal regime specifically for long-term relationships of same-sex couples. The commission in the end voted against the implementation of such a legal regime (by a 6:5 vote), but nevertheless included a draft bill in their report. On the basis of this draft, some members of parliament introduced a bill to create a ‘registered partnership’ for same-sex couples, and the bill was accepted by parliament with a large majority. The Lov om registreret partnerskab entered into force on 1 October 1989, making Denmark the first country in the world to have a formal legal regime for same-sex couples, which was an (almost) fully functional family law equivalent of marriage. Thus, Denmark assumed a pioneering role of considerable significance.

Norway (1993), Sweden (1994), Iceland (1996) and Finland (2001) introduced legal regimes identical or very similar to the Danish, so that one can speak of a ‘Nordic Model’. The acts on registered partnerships in the Nordic countries are very short and principally refer to the legal rules applicable to marriage with only a few exceptions (initially mainly relating to children, although most of these were later abolished) being stipulated in the relevant acts. Recently, Norway (2009), Sweden (2009) and Iceland (2010) have gone one step further and have opened up marriage to same-sex couples, abolishing registered partnership at the same time. Thus same-sex couples in Norway, Sweden and Iceland can now only enter into a marriage, not a registered partnership. Existing registered partnerships remain valid, but the couple can apply for their registered partnership to be converted into a marriage. The reason for these changes was that despite the legal rules applicable to married couples and those in a registered partnership being virtually identical, it was felt that the different name of the legal regime nevertheless constituted an unjustifiable differential treatment (discrimination (general)) of same-sex couples.

In several other European countries, including Germany (Eingetragene Lebenspartnerschaft, 2001), the United Kingdom (civil partnership, 2004), Switzerland (Eingetragene Partnerschaft, 2007), Austria (Eingetragene Partnerschaft, 2010) and the Republic of Ireland (2011), formal legal regimes for same-sex couples have been introduced, but in some of these the rights and duties afforded by the legal regime to same-sex couples differ significantly from those of spouses. However, here the respective legislatures opted for a technically different approach from that of the Nordic countries and did not include a general reference to the laws governing marriage. Instead, rather bulky (and on occasion rather patchy) acts were passed, which nevertheless in the end create a legal regime broadly similar to that of marriage (but in many jurisdictions with relevant exceptions, particularly relating to child law). The reason for this approach was the desire of the legislature, for presumed constitutional but also manifestly political reasons, to make clear that the new legal regime was only comparable to marriage, but nevertheless a separate and supposedly independent one (‘different but equal’). While in Norway, Sweden and Iceland, even though the legal rights and duties of registered partners were virtually identical to those of spouses, such differential treatment was seen as an impermissible discrimination and led to the opening up of marriage (see above), this argument was rejected by the English High Court in Wilkinson v Kitzinger [2006] EWHC 2022 (Fam).

In other European jurisdictions, such as Slovenia (2006) and the Czech Republic (2006), there also are formal legal regimes exclusively for same-sex couples, but here the legal effect of these regimes is much less significant than that of marriage.

Finally, in some European jurisdictions there are regimes of registered partnership that are open to both same-sex and opposite-sex couples (see also cohabitation). The Dutch geregistreerd partnerschap (1998) more or less has the same legal consequences as a marriage (with some exceptions, particularly as to its dissolution). Other jurisdictions deliberately decided to create a legal regime that was different and had fewer legal consequences than marriage, eg the French pacte civil de solidarité (PACS, 1999), the Luxembourgian partenariat légal (2004), the Belgian wettelijke samenwoning/cohabitation légale, the Andorran unió estable de parella (2005) and some legal regimes in the Spanish autonomous communities. Where the legal regime is open to both same- and opposite-sex couples, it cannot be denied that same-sex couples are nevertheless treated differently: they can only opt for one, arguably ‘inferior’ legal regime, whereas opposite-sex couples can choose whether they want to enter into that legal regime or into marriage. This argument has led to the opening up of marriage to same-sex couples in the Netherlands (2001) and Belgium (2003). Spain also opened up marriage to same-sex couples in 2005 and Portugal followed in 2010.

In addition to the formalized regimes available to same-sex couples, there are rules in a number of European jurisdictions that apply to both same-sex and opposite-sex couples irrespective of a formal act if the parties’ relationship fulfils various factual criteria (eg Sweden, Scotland, Croatia, Portugal and the Republic of Ireland) (cohabitation).

3. European Law and European Convention on human rights

As early as 1994, the European Parliament in its ‘Resolution on equal rights for homosexuals and lesbians in the EC’ ([1994] OJ C61/40) called upon Member States to provide lesbians and gay men with legal protection against discrimination; the European Parliament in the same Resolution asked the Commission to address the problem that same-sex couples could not enter into a marriage or into an equivalent form of legal relationship with ‘full legal rights and duties’ through registration. However, there currently are still no European legal rules dealing with the legal status of same-sex relationships as such.

In D and Kingdom of Sweden v Council of the European Union (ECJ Joined Cases C-122/99 and C-125/99 [2001] ECR I-4319), a civil servant of the EU living in a registered partnership entered into in Sweden claimed a household allowance available to spouses only. Although the ECJ rejected his claim as ‘such arrangements for registering relationships between couples not previously recognised in law are regarded in the Member States concerned as being distinct from marriage’ (para 36), this case prompted the European Union to change its internal regulations governing its civil servants, and same-sex relationships are now fully recognized if the couple is in a marriage or formal functional equivalent (see above). Hence, where a couple had the option of entering into marriage (eg in Belgium) but opted for a form of registered partnership instead (in Belgium the wettelijke samenwoning/cohabitation légale), the relationship will not be given the same status as marriage; in this regard, same-sex couples and opposite-sex couples are now treated equally.

Several legal actions have been brought to the courts regarding the differential treatment of same-sex and opposite-sex couples, based on Arts 8 and 14 (and, where applicable, Art 1 of Protocol 12) ECHR or Arts 7 and 21 of the Charter of Fundamental Rights of the European Union (human rights and fundamental rights (ChFR and ECHR)). This has occurred both in national (see eg Wilkinson v Kitzinger and others [2006] EWHC 2022 (Fam)) and before European Courts (see eg ECJ Case C-249/96 – Lisa Jacqueline Grant v South-West Trains Ltd [1998] ECR I-621 and Schalk and Kopf v Austria (ECtHR No 30141/04)). Where the aim was to force the legislature to open up marriage to same-sex couples, these actions have so far been unsuccessful, unlike in non-European jurisdictions such as Canada, South Africa, California or Iowa. Where in Europe marriage was opened up to same-sex couples or registered partnerships etc were introduced, this was always the result of Parliamentary reform and, hence, political initiatives rather than legal action.

However, where the case has concerned discrimination on the basis of sexual orientation in a specific context, legal actions generally have been more successful. Sexual orientation and one’s sexuality have consistently been held by the European Court of Human Rights (ECtHR) to be part of private life and, hence, to be respected according to Art 8 ECHR (see eg Dudgeon v United Kingdom, No 7525/76). While de facto relationships of two persons of the same sex were originally held by the Court not to fall within the ambit of the right to respect for family life under Art 8 ECHR (see Mata Estevez v Spain, No 56501/00), decisions such as Burden v United Kingdom (No 13378/05) and Courten v United Kingdom (No 4479/06) seemed to indicate that the Court was willing to accept a formally registered same-sex relationship (such as a registered or civil partnership or their equivalent) as protected by the right to respect for family life in Art 8. In 2010, in Schalk and Kopf v Austria (above), the Court then expressly abandoned the position taken in Mata Estevez and declared that ‘a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would’ (at para 94). Hence, same-sex couples now generally enjoy the protection of the right to respect for their family life under Art 8 ECHR.

In the same case, the Court confirmed the position held in previous decisions, namely that differential treatment because of sexual orientation requires particularly weighty justification (see eg in the context of adoption EB v France, No 43546/02, parental responsibility Salgueiro da Silva Mouta v Portugal, No 33290/96, and succession to tenancy (family home) Karner v Austria, No 40016/98; on the latter see also the House of Lords decision in Ghaidan v Godin-Mendoza [2004] UKHL 30). Likewise, cases based on discrimination on account of sexual orientation have been successful before the ECJ. In a 2008 case concerning a state scheme for the provision for dependants (ECJ Case C-267/06 – Tadao Maruko v Versorgungsanstalt der deutschen Bühnen [2008] ECR I-1757), the ECJ held that the differential treatment of married couples and those in an Eingetragene Lebenspartnerschaft was a breach of Dir 2000/78 (establishing a general framework for equal treatment in employment and occupation, [2000] OJ L303/16): where a surviving spouse and a surviving Lebenspartner were in a comparable situation with respect to the survivor’s pension, there was no apparent justification to treat them differently.

4. Private international law

In light of the proliferation of differing legal regimes available to same-sex as well as opposite-sex couples, both for formal and informal/de facto cohabitation, the need to deal with the international recognition of such regimes is becoming more and more pressing. Therefore, on 5 September 2007, the Commission Internationale de l’État Civil (CIEC; International Commission on Civil Status (CIEC)) adopted a Convention on the recognition of registered partnerships (Convention (no 32) sur la reconnaissance des partenariats enregistrés). The Convention deals with the recognition of formalized relationships other than marriage, both of couples of the same and of the opposite sex. However, since the legal rules already in place in many jurisdictions are much broader than the scope of the Convention, it is not surprising that it has so far only been signed by Spain and Portugal and only been ratified by Spain.

In 2011 the European Commission put forward a proposal for a Council regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships (COM (2011) 27/2).

5. Future development

There is a clear development in Europe towards the legal recognition of same-sex couples, despite there being strong resistance to this particularly in some southern European and eastern European countries. In view of the emerging case law of both the ECJ and, particularly, the ECtHR, this trend is likely to continue. A major driving factor will also be the European Union and the free movement of workers, as the above-mentioned proposal for a Council regulation shows. Same-sex couples who, for example, marry in Spain or register their partnership in Denmark cannot enjoy genuine freedom in choosing their place of work in the European Union until they can be certain their legal relationship will be recognized in all Member States.

Literature

Justitiedepartementet, Statens offentlige utredningar (SOU) 1984:63 (Sweden)—Homosexuella och samhället. Betänkande av utredningen om homosexuellas situation i samhället (1984); Betænkning nr 1127/1988 om homoseksuelles vilkår, afgivet af kommissionen til belysning af homoseksuelles situation i samfundet (Denmark) (1988); Bundesamt für Justiz, Die rechtliche Situation gleichgeschlechtlicher Paare im schweizerischen Recht/La situation juridique des couples homosexuels en droit Suisse (1999); Jürgen Basedow, Klaus J Hopt, Hein Kötz and Peter Dopffel (eds), Die Rechtsstellung gleichgeschlechtlicher Lebensgemeinschaften (2000); Robert Wintemute and Mads Andenæs (eds), Legal Recognition of Same-Sex Partnerships—A Study of National, European and International Law (2001); Katharina Boele-Woelki and Angelika Fuchs (eds), Legal Recognition of Same-Sex Couples in Europe (2003); Ministère de la Justice, Le pacte civil de solidarité. Réflexions et propositions de réforme, Rapport remis à Monsieur Dominique Perben (France) (2004); Cristina González Beilfuss, Parejas de hecho y matrimonios del mismo sexo en la Unión Europea (2004); Ian Curry-Sumner, All’s Well That Ends Registered? The Substantive and Private International Law Aspects of Non-marital Registered Relationships in Europe (2005); Jens M Scherpe and Nadjma Yassari (eds), Die Rechtsstellung nichtehelicher Lebensgemeinschaften—The Legal Status of Cohabitants (2005); Stephen Cretney, Same Sex Relationships: From ‘Odious Crime’ to ‘Gay Marriage’ (2006).