Same sex marriages in international family law

Same sex marriages in
international family law
– a clash of legal cultures?
Academica 2014
University of Tartu, Faculty of Law
Monday, October 13, 2014
Prof. Dr. Volker Lipp
 Same sex couples in family law and the law of
 Same sex marriage and registered partnership
in a comparative perspective
 Legal issues in international cases
 Views on some international instruments and
their approaches
Prof. Dr. Volker Lipp
 Same sex marriage - promoted, prohibited,
 Same sex marriage and law of succession
o Spouse as legal heir
o Reserved share of spouse
 The legal situation of international couples of
the same sex - a clash of legal cultures?
Prof. Dr. Volker Lipp
Same sex marriage in family law
 Right to privacy: no state interference with
private life
 Cohabitation
 Registered partnership
o For all couples (e.g. French PACS)
o For same sex couples only (e.g. Germany)
 Same sex marriage
(e.g. Norway, Sweden, The Netherlands, Spain)
Prof. Dr. Volker Lipp
Same sex marriage
2000 Netherlands
2003 Belgium
2004 Massachusetts (USA)
2005 Spain, Canada
2009 Norway, Sweden
2010 Argentina, Iceland, Portugal
2012 Danmark
2013 France
2013/14 UK (except Northern Ireland)
Prof. Dr. Volker Lipp
Same sex marriage in the US
 Federal Defense of Marriage Act 1996
o Same sex marriage = state legislation
o No state obliged to recognise same sex
marriage concluded in another state
 Same sex marriage
o Allowed in 6 states and D.C.
o Prohibited in 45 states (in 30 states by state
o Some recognise, others do not
Prof. Dr. Volker Lipp
Europe (Council of Europe)
 Same sex marriage: 10 countries
 Registered partnership: 12 countries
 Nothing of the above: 29 countries
Prof. Dr. Volker Lipp
International family law issues
 Conclusion of marriage / registered
o Where? - Where it is known!
o Which law?
Personal law (nationality, domicile,
habitual residence)
Law of place where it is concluded
(lex loci celebrationis)
Prof. Dr. Volker Lipp
International family law issues
 Recognition of marriage / partnership
concluded abroad
o What does „recognition“ mean?
 Status as such
 Effects of status for maintenance,
property, law of succession etc.
o Standard issues if it is known in other state
o Special problem if it is unknown in other
Prof. Dr. Volker Lipp
Hague Convention No. 26 of 1978
 Validity and recognition of the validity of
 Ratified by 3 countries only
(Australia, Luxembourg, Netherlands)
 Does not cover same sex marriage
(not known in 1978)
Prof. Dr. Volker Lipp
ICCS Convention No. 32 of 2007
 On the recognition of registered partnerships
 Of couples of the same or different sex
 Modelled after the Hague Marriage
Convention No. 26 of 1978
 Recognition of partnership registered in one
member state by all other member states
 Grounds for non-recognition
 Not yet in force
Prof. Dr. Volker Lipp
EU Regulation 2201/2003
(Brussels II bis)
 Proceedings of divorce, legal separation, and
annulment of marriage
 Same sex marriage not included
(known in only 2 member states)
Prof. Dr. Volker Lipp
EU Regulation 1259/2010
(Rome III)
 Applicable law for divorce and legal separation
of marriage
 Same sex marriage not included
(no consensus)
 No member state is obliged to separate or
divorce a same sex marriage if it does not
know it (Preamble 26)
Prof. Dr. Volker Lipp
EU Succession Regulation
 On the succession to the estate of a deceased
 Succession right of spouse or partner and
right to reserved share (Art. 23 § 2 lit. b and h)
 „marriage“ and „partnership“ as preliminary
Prof. Dr. Volker Lipp
EU Succession Regulation
 Succession Regulation does not apply to
o family relationships
o „relationships deemed by the the law
applicable to such relationships to have
comparable effects“
 „marriage“ and „partnership“ left to national
(conflict) laws
Prof. Dr. Volker Lipp
EU Succession Regulation
 Conflicts likely
 e.g. if a member state regards same sex
marriage / registered partnership as valid and
surviving spouse / partner would have right of
succession or to a reserved share under that
law, but law of succession does not?
Prof. Dr. Volker Lipp
Proposal for EU regulations on the
property of international couples
 2 proposals, one for matrimonial property,
one for property in registered partnerships
 Inclusion of recognition of foreign marriage
and partnership rejected, only property issues
 Definition of registered partnership includes
couples of same and of different sex
 No definition of marriage
Prof. Dr. Volker Lipp
Proposal for EU regulations on the
property of international couples
 Commission: property in same sex marriage
should be left to national (conflict) laws
 But are there other problems than with
property in registered partnerships?
Prof. Dr. Volker Lipp

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