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FAMILY LAW IN EUROPECourse Overview 2021/2022
Dr Michael Wells-Greco
Exam/assessment
• Written assessment: 15 December 2021
• Topics: Those covered in tutorials and lectures, including reading material prescribed
• Bring to the exam
– Conventions, regulations, treaties in the Conventions Reader
– Translation dictionaries
• Good luck!
Family Law in Europe - Overlapping layers
Marriage and Partnerships I
• ECHR (“living instrument” + interpreted in the light of “present-day conditions”)
– Article 12 (+ Article 14)
• Evolution of definition of marriage (Schalk and Kopf, Hamalainen v
Finland)
• Margin of Appreciation and European consensus (e.g. same-sex marriage)
, → Before the Strasbourg court answered if there was a right to
marry for SSC. First was the question of transgender marriages.
Thanks to the Goodwin decision said that if in law required is fulfilled than
the transgender is allowed to marry. So the biological criteria. The court said
this knowing there was a increasing trend in change of sex.
The role of the court is not a court of last resort! No immediate breach if a
State does not follow the decision. Example Goodwin did not require all other
States to change the domestic law so transgenders can marry. The court has
no erga omnes effect. There is a margin of appreciation to satisfy a ECHR
right
→ Man and woman can only marry the opposite sex but art. 12
ECHR could mean otherwise. Schalk and Kopf said that art. 12 ECHR
can not in all circumstances mean marriage between DSC, so it could be
applicable for SSC. But in this case, at that time the question if SSC is
allowed is left to the domestic law. The door is left open to the right to marry
under art. 12 ECHR for SSC. The court was cautious. At the time the court
was seized that Austria was in the process of introducing a registered
partnership for SSC. So Schalk leaves the door open but the court says very
little.
Hamalainen v Finland; remain married for transgender. Art. 12
ECHR is a lex specialis for the right to marry, so not under art. 8 ECHR.
Expressly provides for marriage under national law. The Convention needs to
be looked at at the time of seized. So the court has
– Article 8 (+ Article 14)
• Positive obligation to provide a legal framework of protection for same- sex
couples / recognition of a foreign union? (Schalk and Kopf, Vallianatos,
Oliari, Orlandi)
The extent of the right of SS marriage. The court said in these
decisions collected: under specific circumstances states are obligated to
introduce some form of legal framework for SSC. The court has not said that
there is a right to introduce SS marriage under article 8 or 12 ECHR. But
there needs to be some form of legal recognition but what form is left to the
party to decide; what is appropriate there to the traditions etc.
Schalk and Valliantos; tell that there is private and family life for SSC that
has a stable relationship the same way as a DSC has. So SSC fall in the
same benefits of art. 8 ECHR as DSC do.
Example Schalk, SSC was not allowed for legal documents even
though they lived together. But that was family life for art. 8 ECHR.
– Positive obligation to provide a legal framework of protection for unmarried
couples?
No European consensus enough for same sex marriage. Oliari read the
opinion, is of interest to consider the extent to which the Italy was ready to accept
same sex couples. Judgment can be read broader, difficult for a EU member state
not to introduce a legal framework for SS. So there is a positive obligation to provide
some form of legal framework for same sex couples.
For unmarried couples?
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