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Equal Marriage, Unequal Civil Partnership: A Bizarre Case of Discrimination in Europe

Draghici, C. (2017). Equal Marriage, Unequal Civil Partnership: A Bizarre Case of Discrimination in Europe. Child and Family Law Quarterly, 313,

Abstract

The fact that heterosexual couples still cannot form civil partnerships after the introduction of gender-neutral marriage contravenes Articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Albeit optional under the Convention (like adoption, parental leave or child benefits), civil partnership is an institution engaging the right to respect for family life and its domestic regulation demands conformity with Convention principles, including non-discrimination. This article contrasts states' wide margin of appreciation in matrimonial matters under Article 12 with the limited discretion under Article 8 and discusses the strict proportionality test applicable to differences in treatment exclusively based on sexual orientation. It dismisses the justifications espoused by executive and judicial authorities in recent litigation for the indefinite postponement of reform, namely the overestimated costs of legislative amendment, the subordination of the equality principle to the number of takers, and attempts to gauge social demand through post-2014 statistics on gay partnerships. Finally, it provides arguments for removing discrimination by opening civil partnership to opposite-sex couples rather than abolishing it: obviating hardship for family units lawfully constituted abroad, ensuring privacy for individuals whose disclosure of civil status reveals sexual orientation, and fostering a pluralist, tolerant society, accommodating ideological objections to marriage.

Publication Type: Article
Additional Information: Published by Jordan Publishing, 2017.
Departments: The City Law School > Academic Programmes
The City Law School > International Law and Affairs Group
URI: http://openaccess.city.ac.uk/id/eprint/18517
[img] Text - Accepted Version
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Available under License Creative Commons Attribution Non-commercial.

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