'Legal Family Formats for (Same-Sex) Couples', chapter 4

Abstract

This paper describes in a comprehensive but compact manner the legal recognition that same-sex couples have been gaining in Europe. In 40 years a growing number of European countries has started to make marriage and/or other ‘legal family formats' available to same-sex couples. Simultaneously the number of pieces of European Union legislation that acknowledge non-marital partners (of any gender-combination) has been growing as well. The terminology used for the various new legal family formats is very diverse, and authors of comparative family law have proposed various classifications of these family formats - so far without convincing each other. This paper argues in favour of using ‘registered partnership' and ‘informal cohabitation' as the most appropriate terms to characterise the new range of non-marital family formats. All this has been accompanied and encouraged by a stream of case law in which the European Court of Human Rights and the Court of Justice of the European Union have been requiring some degree of equal treatment between unmarried different-sex and same-sex couples, and sometimes also between registered same-sex couples and married different-sex couples. This case law is still limited, but it does contain many statements that explicitly validate same-sex and non-marital family life and that recognize the need for legal recognition of such partnerships. Eventually, this affirmative eloquence of the highest European courts could become relevant to same-sex partners in jurisdictions and situations where many rights and benefits are still the exclusive privilege of married different-sex partners.