ABSTRACT

 

The story of the changes made in the legal regulation of homosexual relationships goes back to the previous century, but has really taken off in the last ten years. A number of factors, apart from the enormous energy and determination of the gay movement, have contributed to changes which have made it possible for the current stage to be reached. In particular the crisis in marriage, measured by the rising rate of divorce, the increasing numbers of couples preferring to live together than to marry and the high levels of births outside marriage have been influential. These developments have little or no relevance to homosexual couples, who have been excluded from marriage and on whose doorstep the complaints about the rising rates of birth outside marriage cannot be laid. But those changes have led to an environment in which questions can and should be asked about the role of marriage in society. And those questions include, in some countries, examining the content of marriage and exploring who should be allowed to participate in the institution, as well as exploring alternative ways of regulating relationships outside marriage.

This paper is in three parts. In the first part international developments regarding the recognition of homosexual relationships will be examined. The second part consists of a scrutiny of the factors which led to change in some domestic legal systems in Europe. The third part gives a brief overview of the various kinds of legal regulation of homosexual relationship which are found in Europe.

By way of conclusion it is recommended that in Italy, where there is a developed tradition of human rights, the line developed in recent European Court of Human Rights case law regarding homosexuality could be developed. It is conceivable that the three human rights issues: private and family life; the right to marry; and the right not to be discriminated against could form an important part of the dialogue in Italy about the next steps to be taken regarding the protection of human rights of same sex partners. There is at present no obligation upon a States Party to the ECHR or any other Convention to provide for a family form for same sex or opposite sex couples. Nevertheless the reasons which the European Court gives for non-recognition of human rights are not reasons based on principle but upon the political reality that such recognition would not find support in the States Parties. It should not be forgotten that the European Convention on Human Rights aims to guarantee a minimum level of rights, and that a States Party is always at liberty to develop a higher level of protection for its citizens. This step is invited in Article 60 of the Convention.

The survey of the developments in the domestic legal systems of Europe reveals that many different kinds of step are possible; some have even been in force for some time. It is not necessary for a country to immediately face the question whether marriage should be made open to same sex partners; the options of partnership registration, enrolment of contract of solidarity, or optional or automatic form of cohabitation protection also exist. Some countries have taken the step in a big leap; in the Netherlands there is no regulation of cohabitation but the question was raised about marriage. It has been made clear that not all these measures give an equal amount of protection. It has also been stressed that solutions addressed purely to same sex couples cannot in any circumstances present any threat to marriage. The institution of marriage will only be strengthened by allowing more couples to join in a marriage-like relationship. But even a cohabitation protection could be a step forward which might create a feeling of inclusion for a group which has long felt itself to be excluded, and which might pave the way for a greater step later on. The example given by Sweden is a good one in this respect. It began in 1987 with the introduction of cohabitation protection for same and opposite sex couples. In 1995, after experts in Sweden had been able to observe the operation of partnership in other countries, the step was taken to introduce partnership. A final option is to consider forms of relationship which stress, more than is the case with marriage, the mutual care of the partners, or other forms of emotional and/or financial inter-dependence.