30 January 2013

The ever-evolving case-law of the European Court of Human Rights (ECtHR) has now shifted towards the recognition of new forms of families beyond the heteronormative norms. Despite the final decision of Schalk and Kopf v Austria (Application no. 30141/04) not being a total victory for same-sex couples since the ECtHR ruled that Austria did not violate Article 12 (right to marry) and Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention of Human Rights (ECHR), by not allowing same-sex couples to contract marriages, it is widely considered as a milestone case as it was the first time where the ECtHR recognised that same-sex couples fall within the category of “family” for the purposes of the ECHR.

In 2002 Mr Schalk and Mr Kopf have requested the competent authorities in Austria to allow them to contract a marriage as a same-sex couple. Nevertheless, their request was rejected on the basis that marriages could only be contracted between opposite-sex couples. On a later constitutional complaint, their claim for violation of their right to private life and protection against discrimination was rejected by the ECtHR given that Austria was not obliged to make any amendments in their legislation, in order to allow same-sex couples to contract marriages on the basis of protection of same-sex relationships under the ECHR.

Nevertheless, perhaps one of the most significant conclusions that emerged from the decision of Schalk and Kopf v Austria relates to the ECHR being a living instrument, which develops and evolves in accordance with the emerging needs of the societies of the contracting states of the Council of Europe. According to the judgement of the ECtHR a growing recognition of same-sex unions has taken place in a number of European States.[1] Accordingly, the Court held that “In view of this evolution the Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy ‘family life’ for the purposes of Article 8. Consequently, the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of ‘family life’, just as the relationship of a different-sex couple in the same situation would.”[2] Although it seems that the ECtHR is prepared to accept the unions of same-sex couples, at the current stage is not willing to enforce the recognition of such unions in any form in all the contracting parties of the council of Europe since it is indicated by the ECtHR itself that this issue is to be dealt with from the national level.

As with respect to the Cypriot legislation, article (3)1 of Marriage Law 2003 (104(I)/ 2003) provides that “Marriage means the agreement for union in marriage that is being contracted between woman and man ...” Thus, a same-sex couple cannot contract a marriage in the Republic of Cyprus nor can a marriage of a same-sex couple that has been contracted in another State be recognised under the Cypriot legislation. Additionally, Cypriot legislation does not include any provisions for the recognition of registered partnerships and accordingly a registered partnership of a same-sex couple cannot be accepted as a recognised union in order to be regulated under the Marriage Law 2003 (104(I)/ 2003) of the Republic of Cyprus.

As recent as in 2010, the Supreme Court of Cyprus in the case of Thadd Correia v The Republic of Cyprus[3]was faced with the question of recognition of a marriage of a same-sex couple that has been contracted between a Cypriot and a Canadian national in Ontario, Canada and on that basis the Cypriot partner has requested a residence permit for the Canadian national in Cyprus. In examination of the facts of the case the Supreme Court held that neither of the defendants had locus standi for the request that the Cypriot partner has filed with the competent authorities. In addition to this and in examination of the substance of the case, it was held that in any case the Canadian National cannot be considered as a member of the family of a Cypriot National since Cyprus does not recognise marriages between same-sex couples. According to Honourable Judge Nathanael, Law 7(I)/2007 applies only to EU citizens, and thus, it cannot apply to a Canadian National. In any case, according to Honourable Judge Nathanael, Directive 2004/38/EC that has been incorporated into Cypriot Law with the Law 7(I)/2007 does not apply to nationals that wish to stay in the State of their Nationality and thus, it is not applicable in the case of the Cypriot national. Furthermore, Honourable Judge Nathanael explained that even those rights which are provided under section 4(2) of Law 7(I)/2007, whereby the entrance and residence of the partner that maintains a stable relationship with an EU citizen shall be facilitated in the Member States of the EU, does not imply the recognition of the marriage. Honourable Judge Nathanael explained that this facilitation can take other forms. However, the decision did not provide with further information as to which forms could this facilitation take if marriage is not to be considered as a stable de facto relationship.

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  As it is currently the case, 16 of the 27 Member States of the European Union have provided with some form of legal recognition of same-sex unions, either in the form of marriage or in that of a civil partnership. Both the European Court of Human Rights and the Court of Justice of the European Union throughout their case-law seem rather reluctant towards the imposition of the mutual recognition of same-sex unions in the entire Union. Nevertheless, as it was clarified in the judgement of Schalk and Koph, a significant contributing factor towards the mutual recognition of same-sex unions is the wider recognition from European States primarily on the national level. Thus, the establishment of legal recognition of same-sex unions appears to be a matter that both the ECtHR and the CJEU wish to leave to be dealt with from the National level rather than proceed with the imposition of legal recognition of such unions from the Supranational level at least until the stage that wider consensus will be met.

Furthermore, it must not be forgotten that the European Union lacks competence in order to intervene within the family law of the Member States. However, it emerges that this is not merely an issue of family law but, it further challenges one of the four fundamental freedoms of the European Union; the freedom of movement within the Member States of the EU. This is illustrated with the difficulties that can arise in such cases as that of Thadd Correia where the lack of mutual recognition of same-sex unions, amongst the Member States of the European Union, has been argued to challenge the concept of the freedom of movement since the limits which are being set, exclude the so-called “new families”. Several issues arise in this regard including inheritance rights, benefits and allowances which only derive under the recognition of a legally recognised union and thus, same-sex couples cannot live freely in all the Member States of the EU, with all the rights and benefits that opposite-sex couples would have enjoyed had they moved in any EU Member State, as their marital status varies in accordance with the legislation of the State in which they move. This issue remains rather vague and a clarification possibly remains a matter of case-law.

The government through the voice of the Ministry of Interior has recently expressed an interest in drafting legislation with respect to civil partnerships. The legislation that has been discussed aims to offer legal recognition for both same-sex and opposite-sex couples and if passed this legislation will be one of the most groundbreaking pieces of legislation that has ever been incorporated into Cypriot law. Further details are yet to be announced but it seems that the proposed registered partnership will aim to offer all couples an alternative and very different option where both the contracting as well as the dissolution of the partnership will consist of much simpler and less bureaucratic processes. 

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