Others may follow: the introduction of marriage, quasi-marriage and semimarriage for same-sex couples in european countries

• Author: Kees Waaldijk
• Position: Senior lecturer and research fellow at the E.M. Meijers Institute of Legal Studies of the Faculty of Law of Leiden University in the Netherlands
• Pages: 104-124

OTHERS MAY FOLLOW: THE INTRODUCTION OF

MARRIAGE, QUASI-MARRIAGE AND SEMI-

MARRIAGE FOR SAME-SEX COUPLES IN EUROPEAN

COUNTRIES

KEES WAALDIJK*

I. INTRODUCTION

The legal recognition of same-sex partners living together as

husbands or wives has gradually emerged in the law of several

European countries.1Initially, this was done through the process of

recognizing de facto cohabitation for a number of specific legal

purposes. The earliest examples of such recognition and regulation

of same-sex partnerships are found in the 1970s.2This model of

regulating informal cohabitants can be categorized in many ways.

The most accurate categories are given by Wintemute, who speaks of

unregistered cohabitation,3and by Forder who speaks of

cohabitation protection arising by operation of law.4The categories

can be piecemeal or more systematic.5Sometimes this model is

simply referred to as domestic partnership,6but that is confusing

since many so-called domestic partnership schemes require

registration.7It ist tempting to introduce the wordpara-marriage to

104 [5:1Judicial Studies Institute Journal

* Dr.Kees Waaldijk is a senior lecturer and research fellow at the E.M. Meijers Institute of

Legal Studies of the Faculty of Law of Leiden University in the Netherlands. For further

information please visit http://www.emmeijers.nl/waaldijk. This article is based on the text of

an affidavit written by the author in October 2003, at the request of the Department of Justice

Canada, for the Supreme Court of Canada, in the matter of a reference by the Governor in

Council concerning the proposal for an act respecting certain aspects of legal capacity for

marriage for civil purposes, as set out in Order in Council P.C. 2003-1055, dated July 16,

2003. In this reference the Canadian government is asking the Supreme Court of Canada for

an advisoryopinion on proposed legislation to extend the definition of civil marriage to same-

sex couples (after appellate courts in two common law provinces ruled that the exclusion of

same-sex partners from marriage is unconstitutional, and a superior court in civil law Québec

ruled the province’s statutory bar to be similarly unconstitutional). The hearing on the

reference is scheduled for October 2004.

1. This evolution has also taken place in Canada, Australia, South Africa, and elsewhere.

2. The first piece of legislation was in reference to Dutch rent law. See Law of June 21, 1979

(Stb. 1979, 330) (amending the Civil Code, arts. 1623h, 1623i) (allowing a tenant’s partner,

of any sex, to become co-tenant after two years of cohabitation in a “lasting joint household.”)

Even before this legislation, the immigration practices or rules of some countries, including

Sweden, and the Netherlands in the 1970s, allowed for a residence permit for the same-sex

partner of a national.

3. Robert Wintemute, Conclusion,in LEGAL RECOGNITION OF SAME-SEX PARTNERSHIPS:ASTUDY

OF NATIONAL, EUROPEAN AND INTERNATIONAL LAW759, 764 (Robert Wintemute & Mads

Andenaes eds., 2001).

4. Caroline Forder,European Models of Domestic Partnership Laws: The Field of Choice,17

CAN.J. FAM.L. 371, 376 (2000).

5. Michael Coester,Same-Sex Relationships: A Comparative Assessment of Legal

Developments Across Europe, 4 EUR.J. FAM.L. 589-91 (2002).

6. Id.at 590.

7. YUVAL MERIN,EQUALITY FOR SAME-SEX COUPLES: THE LEGAL RECOGNITION OF GAY

PARTNERSHIPS IN EUROPE AND THE UNITED STATES 245 (2002).

capture this phenomenon of unregistered cohabitation.8

Recently, a further level of legal recognition occurred in some

jurisdictions through marriage and/or through a status similar to

marriage. It is possible to distinguish between three types of status’

that are being made available to same-sex couples. The first is

marriage,which may be defined as a traditional legal form of

partnership that is created by a formal act of registration and results

in a great number of rights and obligations in private and public

law.9The second available status is quasi-marriage,anew legal form

of partnership that is created by a formal act of registration and

results in almost all of the rights and obligations of marriage.10

Finally, there is the semi-marriage:Anew legal form of partnership

that is created by a formal act of registration and results in only a

limited selection of the rights and obligations of marriage.11

As far as European countries are concerned, marriage has

now been opened up to same-sex couples in two countries, the

Netherlands and Belgium. Nine European countries, including these

two, have introduced a form of quasi-marriage—Denmark, Norway,

Sweden, Iceland, Finland, and the Netherlands—or of semi-

marriage—France, Belgium, and Germany.This Article will explore

these nine countries.12

2005]

Others May Follow:

The Introduction of Marriage, Quasi-Marriage,

and Semi-Marriage for Same-Sex Couples in

European Countries

105

8. See Kees Waaldijk, Taking Same-Sex Partnerships Seriously: European Experiences as British

Perspectives?,INT’LFAM.L. 86 (2003).

9. To distinguish legal marriage from religious marriage, the former can sometimes best be

referred to as “civil marriage.”

10. Quasi-marriage corresponds to what Forder and Wintemute call “registered partnership.”

See Forder, supra note 4, at 390; Wintemute, supra note 3, at 764. Like Coester, I prefer to

use the terms “registered partnership” and “civil union” loosely as an umbrella term referring

to quasi-marriages and semi-marriages. See Coester, supra note 5, at 591-92.

11. Semi-marriage corresponds to what Yuval calls “light versions of registered partnerships,”

and what Wintemute calls registered cohabitation. See MERIN,supra note 7, at 136;

Wintemute, supra note 3. Forder distinguishes between “optional cohabitation protection”

and “enrolled contract.” See Forder, supra note 4, at 283-86. I will refer to her examples in

both of these categories as “semi-marriages.”

12. This article does not discuss European countries where marriage, quasi-marriage or semi-

marriage has only been made available in certain provinces. Such is the case in Spain,

Switzerland, Canada, United States, Australia, and Argentina. Countries where such

legislation is now being prepared at the national level, such as Switzerland, England, Wales,

Scotland and Liechtenstein, also fall outside the scope of this article, as do countries where

same-sex couples are only recognized in legislation on unregistered cohabitation, such as

Hungary and Portugal. Finally, the purely symbolic pseudo-marriages,which do not result in

any legal rights or obligations arenot covered here. Furthermore, the focus is on civil marriage,

not on religious marriage. For an overview of developments throughout Europe, see LEGAL

RECOGNITION OF SAME-SEX COUPLES IN EUROPE (Katharina Boele-Woelki & Angelika Fuchs

eds., 2003) [hereinafter EUROPE]; LEGAL RECOGNITION OF SAME-SEX PARTNERSHIPS:ASTUDY OF

NATIONAL EUROPEAN AND INTERNATIONAL LAW(Robert Wintemute & Mads Andenaes eds.,

2001); MERIN,supra note 7; see also Kees Waaldijk, Civil Developments: Patterns of Reform

in the Legal Position of Same-Sex Partnership in Europe,17 CAN.J. FAM.L. 62, 62-88 (2000);

Kees Waaldijk, Chronological Overview of the Main Legislative Steps in the Process of Legal

Recognition of Homosexuality in European Countries,INT’LFAM.L. 91-95 (2003) (also

available at http://www.emmeijers.nl/waaldijk).