Same-sex couples and the harmonisation of EU matrimonial property regimes: unjustifiable discrimination or missed opportunities? [2013] CFLQ 19

Keywords: Same-sex couples - matrimonial property - recognition - fundamental rights - registered partnerships

On 31 May 2012 the Fundamental Rights Agency delivered an Opinion on the Commission's proposed harmonisation measures for private international law relating to the property consequences of marriages and registered partnerships. This Opinion accuses the proposals of breaching the European Charter of Fundamental Rights because they provide for different treatment of registered partnerships, which predominantly affect same-sex couples, as opposed to marriages.

This article considers the impact of the proposals, particularly for same-sex couples, and the historical and practical reasons for according different treatment. On balance, the divergences could be considered justifiable to take account of inherent different treatment under national Member State law. The article also considers the potential pitfalls of attempting to provide for equal treatment and finds that such an attempt may well lead to disadvantages for same-sex couples. The article concludes that, given the requirement for unanimity in the Council of Ministers to progress these proposals, the advantages of the proposed rules for registered partnerships are such that the differences between the two proposals should be tolerated, rather than any measures being taken which might further impede the progress of these important initiatives.  

The full version of this article appears in issue 1 of 2013 of Child and Family Law Quarterly.