Among the 21 European countries surveyed for the LawsAndFamilies Database (www.lawsandfamilies.eu), there is a clear trend (fortified by European law) of offering same-sex couples the opportunity... Show moreAmong the 21 European countries surveyed for the LawsAndFamilies Database (www.lawsandfamilies.eu), there is a clear trend (fortified by European law) of offering same-sex couples the opportunity to formalise their relationship as marriage and/or as registered partnership, and of attaching more and more rights and responsibilities to the informal cohabitation, the registered partnership and/or the civil marriage of two people of the same sex. This chapter focusses on the timing of all these changes. In a five periods analysis, it establishes whether major partnership rights were extended to same-sex couples at the time of the introduction of registered partnership, or before, or at the time of the opening up of marriage, or between those two moments, or after the opening up of marriage. Thereby, and by calculating the same-sex legal recognitionconsensus among the countries surveyed for each of 26 selected rights, it finds nine typical sequences: Attitudes before rights; Rights before status; Bad-times rights before good-times rights; Responsibilities before benefits; Individual partner rights before couple rights; Partnership before marriage; Immigration rights among the first to be gained; Parenting rights among the last to be gained; Legal recognition before social legitimacy. Show less
This article (also online at www.articolo29.it/genius) gives a compact overview of developments in national and European law regarding same-sex partners. Over the last decades, new legal family...Show moreThis article (also online at www.articolo29.it/genius) gives a compact overview of developments in national and European law regarding same-sex partners. Over the last decades, new legal family formats (such as registered partnership and de facto union) have been made available in a growing number of countries. The number of countries that have opened up marriage to same-sex couples is also growing. Authors of comparative family law have proposed various classifications of the new legal family formats. Meanwhile, an increasing number of EU laws now acknowledge non-marital partners. The European Courts have been asked several times to rule on controversial differentiations between different legal family formats or between same-sex and different-sex partners. In the case law of the European Court of Human Rights one can find examples of affirmative eloquence which suggest that more steps towards full legal recognition of same-sex families could be expected. This article also appeared in GenIUS – Rivista di studi giuridici sull’orientamento sessuale e l’identità di genere 2014/2, p. 42-56. An earlier version of this text appeared as chapter 4 of the report: O. Thevenon & G. Neyer (eds), Family Policies and Diversity in Europe: The state-of-the-art regarding fertility, work, care, leave, laws and self-sufficiency, Stockholm: Stockholm University 2014 (FamiliesAndSocieties Working Paper Series, nr. 7, p 42-55), and in C. Casonato & A. Schuster (eds.), Rights On The Move – Rainbow Families in Europe (Proceedings of the Conference, Trento, 16-17 October 2014), Trento: University of Trento 2014, p. 121-134. Show less
This article criticises the new Dutch provisions (in force since 1 April 2014) that make it possible for a woman to become the second mother of the child of her female partner without having to go... Show moreThis article criticises the new Dutch provisions (in force since 1 April 2014) that make it possible for a woman to become the second mother of the child of her female partner without having to go through an adoption procedure. The author argues that it would have been better - and possible - to make no distinction at all between a child born to a woman with a female partner and a child born to a woman with a male partner. He proposes a new provision for the Civil Code that would be both gender neutral and orientation neutral. The married or registered partner of the birth mother should automatically become the second legal parent of the child, unless another person - with permission of both partners - will have formally acknowledged the child before its birth. When this article was included in this Liber Amicorum (online at rechtwijs.nl/jcvslxla), the editors left out the footnotes by mistake. A copy of the article including the footnotes is available in the Leiden University Repository. Show less
This article is available online at http://opil.ouplaw.com. International protection for same-sex partnership is a topic that has seen important developments recently, reflecting more extensive... Show moreThis article is available online at http://opil.ouplaw.com. International protection for same-sex partnership is a topic that has seen important developments recently, reflecting more extensive national developments in a growing number of countries. These national and international developments are likely to continue and to reinforce each other. The current state of international law seems to be quite clear on two points: discrimination between unmarried different-sex cohabitants and unmarried same-sex cohabitants is prohibited, and exclusion of same-sex couples from marriage is (probably) still permissible. In between those two points the field is less clear. There is growing support for the proposition that a registered partnership or same-sex marriage validly contracted in one country should be recognized by international organizations and — for certain purposes — also by other countries. And there are reasons to expect that international bodies will apply the prohibition of indirect discrimination to situations where same-sex partners are being excluded from certain legal benefits, because these are only available to married partners. This indirect discrimination argument, which focuses on providing specific benefits, rather than on obtaining status, has been accepted already in several domestic courts. In the short run, persuading international human rights courts and bodies to apply it will probably be the most effective way of increasing the international protection of same-sex partnership. Several countries have, in response to claims that marriage should be opened up to same-sex couples, introduced a form of registered partnership. Assuming that international human rights law will not soon require all countries in the world to open up marriage to same-sex couples, and assuming that many legislatures will be reluctant to attach all rights and obligations of marriage to non-registered cohabitation, it seems possible that some day international human rights courts and bodies will start to require that countries should introduce some alternative to marriage. Any claims in this field deserve serious attention, because, as the European Court of Human Rights has consistently put it, the right to respect for private life encompasses ‘the right to establish and develop relationships with other human beings’. Show less
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... Show moreThis 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. Show less
The article resulting from this paper is online at www.articolo29.it/genius. This paper gives a compact overview of developments in national and European law regarding same-sex partners. Over the... Show moreThe article resulting from this paper is online at www.articolo29.it/genius. This paper gives a compact overview of developments in national and European law regarding same-sex partners. Over the last decades, new legal family formats (such as registered partnership and de facto union) have been made available in a growing number of countries. The number of countries that have opened up marriage to same-sex couples is also growing. Authors of comparative family law have proposed various classifications of the new legal family formats. Meanwhile, an increasing number of EU laws now acknowledge non-marital partners. The European Courts have been asked several times to rule on controversial differentiations between different legal family formats or between same-sex and different-sex partners. In the case law of the European Court of Human Rights one can find examples of affirmative eloquence which suggest that more steps towards full legal recognition of same-sex families could be expected. An earlier version of this paper appeared as chapter 4 of the report: O. Thevenon & G. Neyer (eds.), Family Policies and Diversity in Europe: The state-of-the-art regarding fertility, work, care, leave, laws and self-sufficiency, Stockholm: Stockholm University 2014 (FamiliesAndSocieties Working Paper Series, nr. 7, p 42-55). An updated and expanded version of this that chapter appeared as 'Great diversity and some equality: non-marital legal family formats for same-sex couples in Europe' in the book the book: M. van den Brink et al. (eds.), Equality and human rights: nothing but trouble? – Liber amicorum Titia Loenen, Utrecht, Netherlands Institute of Human Rights 2015 (SIM Special 38, p. 223-245 & 414) and in the journal: GenIUS – Rivista di studi giuridici sull’orientamento sessuale e l’identità di genere 2014, p. 42-56. Show less
Chronological overview of countries (and parts of countries) that have taken some major steps in legally recognising same-sex couples: legal recognition of non-registered same-sex cohabitation,... Show moreChronological overview of countries (and parts of countries) that have taken some major steps in legally recognising same-sex couples: legal recognition of non-registered same-sex cohabitation, introduction of a form of registered partnership, opening up of adoption and/or marriage for same-sex partners. Show less
