Human Rights and Same Sex Marriages

Several of the Articles contained in the European Convention on Human Rights may be applicable to same sex marriages. These include:

• Article 8, which states that an individual has the right to respect for their private and family life. This has been held to include the right to choose one’s sexual identity.
• Article 12 which gives individuals the right to marry and start a family. Whilst a country is permitted to regulate marriage, by the introduction of relevant laws, it may not take this right away. The right to start a family includes the right to adopt children.
• Article 14 concerns the right to be free from discrimination in the way that the other Convention rights are applied. Under Article 14 an individual should not be deprived of the other Convention rights because of their race, nationality, age, gender or “any other status”- which includes sexual orientation.

All of these rights were incorporated into UK law when the Human Rights Act came into force.

The UK Civil Partnership Act

In 2005 the Civil Partnership Act 2004 came into force in the UK. This Act gave people in same sex relationships the right to enter into a legally recognised civil partnership. By entering into a civil partnership people in a same sex relationship would acquire many of the same rights and responsibilities as heterosexual, married couples.

Amongst the rights enjoyed by the parties to a civil partnership are:

• the right to joint access to many state benefits and pensions;
• recognition of the partnership for immigration and nationality purposes;
• the right to be treated as next of kin both in relation to medical treatment and when one partner dies intestate; and,
• the right to receive benefits or compensation payable upon the death of one partner.

Parties to a civil partnership also acquire similar rights, and responsibilities, in respect of any children of the partnership or of either partner.

Is a Civil Partnership the Same as a Marriage?

A civil partnership is not, technically, the same as a marriage. A civil partnership becomes legally binding after both participants sign a registration certificate. Unlike a marriage this does not have to take place at a public ceremony and there is no set format which must be followed for a civil partnership ceremony.

Unlike a marriage, a civil partnership may be a relatively private affair between the parties involved. However, they must still make a public announcement of their intention to join in a civil partnership before the union can be recognised. Further a record of the civil partnership will be held on a Register, which is a public document. There is also no religious aspect to a civil partnership.

The procedure for ending a civil partnership is slightly different, but similar, to the procedure for ending a marriage. Unless one of the partners dies or the partnership is annulled, a civil partnership can only be ended by a formal dissolution - rather than a divorce. An application for the dissolution of a civil partnership may be made one year after the partnership was formed. The grounds for dissolution are similar to the grounds for divorce.

But Doesn’t the Civil Partnership Act Discriminate Against Heterosexual Couples?

When the Civil Partnership Act came into force some heterosexual couples said that it discriminated against them as only same sex couples can enter into a civil partnership. In 2009 a heterosexual couple in the UK, who were denied the right to enter into a civil partnership, said that they would take their fight to the European Court of Human Justice.

The couple received support from gay rights campaigners who believed that the rules on civil partnerships discriminated against heterosexual couples – because they are not allowed to enter into civil partnerships - and against same sex couples – because the rules on civil partnerships differ to those on marriages between men and women.

European Human Rights Law and Same Sex Marriages

In June 2010 the European Court of Human Rights heard a case concerning the right to same-sex marriages. The case was brought by two Austrians who said that their human rights had been breached when they were refused a marriage licence in 2002.

The European Court of Human Rights decided that there is no obligation on European states to recognise same sex marriages or civil partnerships. (Of the 27 European Union member states 16 currently allow same sex marriages or civil partnerships.) The European Court of Human Rights said that different European countries often have divergent views on the issue of same sex relationships and that it was up to the individual countries whether, and to what extent, they recognised same sex marriages.