Same sex marriages in
international family law
– a clash of legal cultures?
Academica 2014
University of Tartu, Faculty of Law
Monday, October 13, 2014
Prof. Dr. Volker Lipp
1
Overview
 Same sex couples in family law and the law of
succession
 Same sex marriage and registered partnership
in a comparative perspective
 Legal issues in international cases
 Views on some international instruments and
their approaches
Prof. Dr. Volker Lipp
2
Introduction
 Same sex marriage - promoted, prohibited,
tolerated
 Same sex marriage and law of succession
o Spouse as legal heir
o Reserved share of spouse
 The legal situation of international couples of
the same sex - a clash of legal cultures?
Prof. Dr. Volker Lipp
3
Same sex marriage in family law
 Right to privacy: no state interference with
private life
 Cohabitation
 Registered partnership
o For all couples (e.g. French PACS)
o For same sex couples only (e.g. Germany)
 Same sex marriage
(e.g. Norway, Sweden, The Netherlands, Spain)
Prof. Dr. Volker Lipp
4
Same sex marriage
2000 Netherlands
2003 Belgium
2004 Massachusetts (USA)
2005 Spain, Canada
2009 Norway, Sweden
2010 Argentina, Iceland, Portugal
2012 Danmark
2013 France
2013/14 UK (except Northern Ireland)
Prof. Dr. Volker Lipp
5
Same sex marriage in the US
 Federal Defense of Marriage Act 1996
o Same sex marriage = state legislation
o No state obliged to recognise same sex
marriage concluded in another state
 Same sex marriage
o Allowed in 6 states and D.C.
o Prohibited in 45 states (in 30 states by state
constitution)
o Some recognise, others do not
Prof. Dr. Volker Lipp
6
Europe (Council of Europe)
 Same sex marriage: 10 countries
 Registered partnership: 12 countries
 Nothing of the above: 29 countries
Prof. Dr. Volker Lipp
7
International family law issues
 Conclusion of marriage / registered
partnership
o Where? - Where it is known!
o Which law?
Personal law (nationality, domicile,
habitual residence)
Law of place where it is concluded
(lex loci celebrationis)
Prof. Dr. Volker Lipp
8
International family law issues
 Recognition of marriage / partnership
concluded abroad
o What does „recognition“ mean?
 Status as such
 Effects of status for maintenance,
property, law of succession etc.
o Standard issues if it is known in other state
o Special problem if it is unknown in other
state
Prof. Dr. Volker Lipp
9
Hague Convention No. 26 of 1978
 Validity and recognition of the validity of
marriage
 Ratified by 3 countries only
(Australia, Luxembourg, Netherlands)
 Does not cover same sex marriage
(not known in 1978)
Prof. Dr. Volker Lipp
10
ICCS Convention No. 32 of 2007
 On the recognition of registered partnerships
 Of couples of the same or different sex
 Modelled after the Hague Marriage
Convention No. 26 of 1978
 Recognition of partnership registered in one
member state by all other member states
 Grounds for non-recognition
 Not yet in force
Prof. Dr. Volker Lipp
11
EU Regulation 2201/2003
(Brussels II bis)
 Proceedings of divorce, legal separation, and
annulment of marriage
 Same sex marriage not included
(known in only 2 member states)
Prof. Dr. Volker Lipp
12
EU Regulation 1259/2010
(Rome III)
 Applicable law for divorce and legal separation
of marriage
 Same sex marriage not included
(no consensus)
 No member state is obliged to separate or
divorce a same sex marriage if it does not
know it (Preamble 26)
Prof. Dr. Volker Lipp
13
EU Succession Regulation
(650/2012)
 On the succession to the estate of a deceased
person
 Succession right of spouse or partner and
right to reserved share (Art. 23 § 2 lit. b and h)
 „marriage“ and „partnership“ as preliminary
question
Prof. Dr. Volker Lipp
14
EU Succession Regulation
(650/2012)
 Succession Regulation does not apply to
o family relationships
o „relationships deemed by the the law
applicable to such relationships to have
comparable effects“
 „marriage“ and „partnership“ left to national
(conflict) laws
Prof. Dr. Volker Lipp
15
EU Succession Regulation
(650/2012)
 Conflicts likely
 e.g. if a member state regards same sex
marriage / registered partnership as valid and
surviving spouse / partner would have right of
succession or to a reserved share under that
law, but law of succession does not?
Prof. Dr. Volker Lipp
16
Proposal for EU regulations on the
property of international couples
 2 proposals, one for matrimonial property,
one for property in registered partnerships
 Inclusion of recognition of foreign marriage
and partnership rejected, only property issues
 Definition of registered partnership includes
couples of same and of different sex
 No definition of marriage
Prof. Dr. Volker Lipp
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Proposal for EU regulations on the
property of international couples
 Commission: property in same sex marriage
should be left to national (conflict) laws
 But are there other problems than with
property in registered partnerships?
Prof. Dr. Volker Lipp
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