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Case law Family law in Europe
- Instelling
- Maastricht University (UM)
Korte samenvatting per arrest van Family Law. Belangrijke rechtsregel samen met kleine feitenschets. Engelstalig. Alle 29 voorgeschreven arresten.
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1. Marcks v. BelgiumMother was not married and therefore she had to acknowledge the child instead of getting
automatically legal parentage. This was discrimination between married and unmarried
women, so art. 14 ECHR was violated. First time for a state to have a positive obligation for
family life to provide for legal framework.
2. Hämäläinen v. Finland
A married person wanted to change its gender. This was not possible because of the
marriage. However, if they switched the marriage to a registered partnership, it would have
been possible. Therefore there was no violation of art. 8 or of art. 14, since the legal
framework was already provided and the necessary change of legal form was not
disproportionate since the results were similar.
3. Schalk und Kopf
The right to marry states in art. 12 ECHR. This does not imply the same-sex marriages has
to be allowed in all member states. Article 12 ECHR does not impose an obligation on the
respondent states to grant a same-sex couple such as the applicants access to marriage.
4. Vallianatos
Marriage between two men was allowed. Greece should have made a legal framework for
same-sex marriages. However there was a possibility for same-sex couples to have a
registered partnership, art. 14 and art. 8 were still violated. The states has a positive
obligation to provide access to marriage for same-sex couples under art. 14 and art. 8
ECHR.
5. Oliari
It concerned a same sex couple who wanted to get married in Italy but it wasn’t possible in
Italy. However, in Italy it was possible to arrange a registered partnership within a same sex
couple. There was a possibility to register their relationship, but there wasn’t a specific model
in which they could fit so it only had a symbolic meaning. According to the court of Human
Rights there was a lack of legal framework for protection and recognition of their union and
partnership. It was a violation of article 8. There has to be a protection for same sex
relationships. The State had overstepped the margin of appreciation by not guaranteeing a
legal framework. Does this mean there has to be a right to marry to fulfil this legal
framework? What about article 12? No, there is no positive obligation since there is no
consensus in the European Union, as already stated in Schalk and Kopf.
6. Orlandi
It concerned a same-sex couple who wanted to marry abroad in Toronto. They could marry
there but they wanted to move back to Italy. There they wanted the marriage to be
recognized. A registered partnership was possible, however the rights and other legal
aspects were not the same as a marriage. Therefore art. 8 and art. 14 were violated. Italy
had to provide a suiting legal framework.
7. Reed v Netherlands
The term ‘spouse’ only extends to those within a ‘marital relation’. A companion, in a stable
relationship, of a worker who is a national of a member states and is employed in the territory
, of another member states must in certain circumstances be treated as his ‘spouse’. It was
decided that a member states which grants such an advantage to its own nationals cannot
refuse to grant it to workers who are nationals of other member state without being guilty of
discrimination on grounds of nationality.
8. Kingdom of Sweden
Spouse is only defined within a marriage between different sexes. The registered partnership
and a marriage should have the exact same legal conditions to fulfill the art. 8 and art. 14
ECHR case law. Under art. 12 ECHR there is no right for same sex couples to marry.
However here there was a big distinction between the registered partnership and a marriage
and that was not allowed.
9. Coman
Mister Coman was resident lawfully in Belgium with his husband. Free movement of an EU
citizen who is married to a third country national and they want to move as a couple. The
status of registered partnership does not have the same recognition in the new state. Unlike
spouse, registered partnership needs to be defined by the host member states. Member
states are allowed to decide whether or not to allow marriage for persons of the same sex
but they cannot rely on its national law as justification for refusing to recognise in its territory.
A marriage concluded by the national with another EU citizen of the same sex in another
member state in accordance with the law of the state.
10. Garcia Avello
A Spanish man married a Belgian lady. The children had both nationalities. Under Belgian
law the surname of the father was given. But according to Spanish law this would look like
the children would be siblings to the father instead of children. Under Spanish law, surnames
are always combined. He wanted to add the name under Belgian law so his Spanish tradition
would stay intact. A request for modification of a family name to make the name according to
Belgian law identical to the name according to Spanish law may not be refused, because the
children had both nationalities and it did not concern a recognition but only a modification.
11. Grunkin-Paul
Two Germans get a child, they live in Denmark. The child gets both his parents surnames.
Denmark refused the recognition. This was not allowed since the inconvenience of the child
would be a breach of his right of free movement. The refusal was not proportiate. The right of
free movement of persons determines that another MS recognises the surname that has
been recognised in another member state.
12. Sayn-Wittgenstein
Austrian woman adopted by German because she wanted a title added to her name to be
more successful in her career. Austria refused when the woman came back because they
had forbidden titles because of equal treatment. Normally Grunkin-Paul would be applicable,
but here the refusal was proportionale due to the public policy of Austria.
13. Metock
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