Leiden University Scholarly Publications

Waaldijk, C. 2015

Great diversity and some equality: non-marital legal family formats for same-sex couples in Europe

Part of book or chapter of book

open access

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

Waaldijk, C. 2014

Same-Sex Partnership, International Protection (update 2013)

Part of book or chapter of book

some documents under embargo until 2024-10-01

2024-10-01T00:00:00Z

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