This is a report from a fascinating and wide-ranging conference held at the Faculty of Law in the University of Cambridge on the 10 and 11 July 2015. It was co-hosted by Dr Jens Scherpe of the University of Cambridge and Dr Andy Hayward of Durham University and sponsored by, inter alia, Queen Elizabeth Building barristers’ chambers and the International Academy of Matrimonial Lawyers.
Over two days we heard presentations on the current law and likely future changes, in thirteen jurisdictions. The common structure for State involvement in, and recognition of, adult relationships is that all recognise marriage (which is now ruled by State legislation rather than the canon law of the Church of previous centuries). In each country, there are a greater or lesser number of cohabitants (some of whom have legal rights and some don’t), and all countries have registered partnership (whether for same-sex couples or heterosexual couples, or both). We generally use a common language to refer to registered partnerships rather than civil partnerships or unions. The impact of the law on cohabitation is generally defined at the end of the relationship, whereas the act of marriage or registration of partnerships means they are defined from the start. We learned that a Polish national cannot (by Polish law) legally enter into a same-sex marriage anywhere in the world.
I have not addressed the situation of the children of adult relationships, as this was not covered in all presentations, and would only add to the length of this already wordy review.
Somewhat naively, I had expected the presentations to follow a geographic pattern, so the Nordic countries (I thought they might be the most advanced), then Western Europe, then the UK and Ireland (we share a common heritage, after all) and finally some outliers such as Australia and New Zealand. So I was at first a bit perplexed when the order of speakers did not follow this outline. The running order became clear when the speakers explained the recognition of adult relationships in their countries.
Nordic countries – registered partnerships as a functional equivalent to marriage
Supporting my expectation about the countries most likely to recognise a greater variety of relationships, we heard first from the Nordic countries. We heard excellent speakers from Denmark, Norway, Sweden and Iceland. In these countries registered partnerships are a functional equivalent of marriage.
Denmark is the Las Vegas of Europe, anyone can marry there without any formality as to nationality, domicile or residence. In October 1989 the first registered partnership in the world between two men was formed in Denmark. Since June 2012, there has been gender neutral marriage, at a cost of 65 euros. Marriage and registered partnership co-exist happily, with similar rights on termination. But cohabitation is not recognised, and does not therefore protect the financially weaker party.
In Norway, marriage remains the traditional form of adult relationship. Same-sex couples, who could have a registered partnership from 1993 onwards, could only have a marriage from January 2009 when registered partnership was abolished. Most legal consequences are the same. Cohabitation has no comprehensive legislation, and yet it is the fastest growing form of adult relationship. Non-spouses are treated as being single. There are no mutual maintenance obligations, or marital property regime.
In Sweden, in 1981 a government appointed committee considered that cohabitation is not a second class marriage, and to regulate some forms of cohabitation in 1995 the Registered Partnership Act was passed. Following Denmark, gender-neutral marriage has been the law since May 2009. Same-sex marriage is much more popular than registered partnership ever was.
The outlier of these countries, Iceland, has the same three forms of relationship: marriage (open to same-sex couples as from 2010), registered partnership which only requires notification to the National Registry and is open to both same-sex and opposite sex couples (previously confirmed partnerships were possible but not since 2010) and cohabitation. While the first two forms carry certain obligations, and more for marriage than for registered partnerships, for cohabitants there is only a very uncertain legal status.
Western Europe – registered partnerships as an alternative to marriage
Presentations from the Netherlands and France showed us how these countries offer registered partnerships as an alternative to marriage. If you expected Belgium and Spain to be in this category see below, as they do have a different view.
In the Netherlands there are a substantial number of registered partnerships that are not marriage. Registration of a partnership (available since January 1998) has brought the same legal protection as marriage. Not surprisingly the Netherlands was the first country in the world to allow same-sex marriage in 2001. The two institutions are evolving in the same direction. When the relationship ends, if both agree and there are no children then an administrative process obviates the need for courts.
Many of us are more familiar with the French form of registered partnership, pacte civil de solidarité (commonly known as PACS) available to and popular with both same-sex and opposite sex couples. But without marriage, there are fewer legal protections, for example some tax benefits are only available to married couples. Cohabiting couples have some specific social and welfare rights, but there are no mutually enforceable legal rights and duties.
The UK and Ireland – civil partnership in a time of transition
What celebrations there were when Ireland’s voters came out in force to answer the referendum with a resounding yes to same-sex marriage. For constitutional reasons, this means that Ireland will not be able to continue to offer registered partnerships, only marriage for same-sex and opposite sex couples. Dr Brian Tobin suggested that for other countries where the popular view may be different to that of politicians, a referendum does offer a clear mandate for change. Legislation from 2010 has recognised ‘qualified cohabitants’ (five years together, or two if there are children) when a financially dependent cohabitant can apply to court for some financial relief at the end of the marriage. Cohabitation agreements are legally enforceable.
Looking at the constituent parts of the UK, Northern Ireland does not allow same-sex marriage but has allowed civil partnership (only to same sex couples) since 2004. There was no presentation for Northern Ireland.
Scotland recognises three forms of domestic relationship. Until 1939, only the church could create a marriage, but since then the State has also had the power. 2014 legislation opened marriage to same-sex couples. Civil Partnership remains restricted to same-sex couples, and has been available since 2004. You can have a religious ceremony, and there is no nationality, domicile or habitual residence requirement. Cohabitation is completely unregistered but since 1981, the law has increasingly recognised consequences, mainly since 2006.
In England and Wales, there are the usual three structures. Marriage (open to same-sex couples since 2014), civil partnerships for same-sex couples only (available since 2005) (which both carry full rights and entitlements) and cohabitation that has some regulation (eg for immigration, housing, welfare benefits and succession). But the legislature has struggled with the introduction of wider rights for cohabitants on relationship breakdown.
Belgium and Spain, New Zealand and Australia – alternative models for registered partnerships – beyond conjugality, beyond formality?
Western Europe came back into the conference room, and now we heard about Belgium and Spain.
Belgium does not insist on conjugality for the purposes of relationship recognition. So any couple can register a partnership, be they friends, siblings, aunt/niece etc. Same-sex and heterosexual couples can choose between marriage and registered partnerships. There is a status of legal cohabitation, for which a couple do not have to actually live together, but they do need to declare their cohabitation. If they do live together, they are recognised for tax, immigration and other purposes. Dissolution is effected by making a unilateral statement or by making a joint statement to a public official. Judges do have jurisdiction to make rulings in case of problems. Cohabitation ends on conversion to registered partnership or marriage or death of one of the parties. Cohabitants are forbidden from using each other’s name. There is no maintenance obligation or right of succession.
Spain too looks more widely at adult relationships. Marriage is universally recognised. It is important to remember that some regions have different rules. Formal partnerships based on consent or factual partnerships based on cohabitation are both possible. Since 2005 same-sex marriage has been legal. Formalised partnerships have a set of ‘opt-in’ rules, and again it depends on which region/autonomous community.
Now we leave Europe and travel south. New Zealand and Australia have differing systems with some common factors.
New Zealand has the three forms of adult relationships: marriage, registered partnerships and what they call ‘de facto’ ie informal and unregistered. Since August 2013 marriage has included same-sex marriage. Since 2004 registered partnerships have been possible, both for same-sex and opposite sex couples. There is no legal recognition of domestic relationships between non-couples. A registered partnership can only be dissolved where one party lives in New Zealand, and the couple have lived apart for at least two years.
In Australia, the federal government rules over recognition of relationships specifically marriage, and the States and Territories deal with other matters such as de facto and other non-marital relationships. There is no same-sex marriage. The Family Law Act 1975 gave de facto couples the same parenting and property remedies as married couples. Such couples can register their relationships where at least one party is living in the relevant jurisdiction. Tasmania permits registration between family members in a ‘caring relationship’. All such registered partners have access to benefits, tax, healthcare and immigration rights.
Greece – registered partnerships, discrimination and human rights
The situation in Greece was presented separately. The three forms of relationship are again available. Only in 1983 were husband and wife seen as equal in this country so influenced by the Greek Orthodox religion, and made divorce without fault possible. Marriage carries obligations to support your spouse’s parents in case of need. In 2008 civil unions became possible, but without benefits such as pensions or social security. Greece registers non-conjugal partnerships (eg friends or family members), a concept which is regularly rejected by other countries. Only opposite sex couples can enter into registered partnerships. The European Court of Human Rights ruling in Vallianatos v Greece  says this is not legal, but Greece has yet to change the law. Registered partnership can be dissolved on any ground, unilaterally, and there is no obligation to support your in-laws. Cohabitation is not regulated, but maintenance after cohabitation is possible.
For reasons of space, I will not give details of presentations on the European Court of Human Rights, on the EU Perspective, comparative observations or the closing address.
Looking at the form of adult relationships, the coverage and the consequences of the various forms, in a structured and lively setting was really interesting. Highlighting only parts of the excellent work by the various speakers is always invidious, but I hope I have given a flavour of what we heard. Academics who present with knowledge and passion always manage to leave the audience enlightened and enlivened.
Read the original article in Lexis Nexis here