As of December 2015, thirteen out of the nineteen countries that have now legalised same-sex marriage across the globe are in Europe. In fact, almost all states in Western Europe now recognise same-sex unions in the same way as heterosexual ones, but notably, two of the largest - Germany and Italy - are not among them. All Central and Eastern European countries continue to ban gay marriage. On the face of it, the two halves of Europe have to some extent been travelling in opposite directions.
The Netherlands paved the way for the legalisation of same-sex marriages, with the first being performed in Amsterdam City Hall on 1 April 2001. Since then, countries across Europe, including Belgium (2003), Spain (2005), Sweden (2009), Portugal (2010), France (2013), the United Kingdom (2014) and Greece (2015), have followed suit. Civil partnerships, which grant legal recognition of relationships but fall short of marriage, are recognised in all EU states except Bulgaria, Cyprus, Latvia, Lithuania, Italy, Poland, Portugal, Romania and Slovakia.
A significant divide in the approach to marriage equality has arisen between the core members of the European Union and those which joined in the "big bang" enlargement on 1 May 2004, symbolising the unification of Eastern and Western Europe. Many jurisdictions in Central and Eastern Europe have become increasingly nationalistic and conservative, and indeed Poland and Hungary (as well as most other jurisdictions in the former communist bloc), have placed constitutional protections which define marriage as the union of one man and one woman. These anti-equality provisions essentially mirror the Defense of Marriage Act (DOMA) which was enacted in the United States in 1996.
Northern Ireland is the only jurisdiction in the United Kingdom where gay marriage is not legal. Whilst the majority of members in the Northern Ireland Assembly have voted in favour of gay marriage, it has been blocked on the basis that it did not have the requisite degree of cross-community support.
The position in Northern Ireland represents a stark contrast to that in the Republic of Ireland which, in May 2015, became the first country in the world to legalise same-sex marriage through a popular referendum. Sixty-two per cent of Irish voters voted “yes” to amend the Constitution of Ireland to provide for full marriage equality.
In Greece, the influence of the historically conservative Greek Orthodox Church has long curtailed family law reform, including the introduction of any sort of equality legislation. Greece’s recently elected Syriza government has, in December 2015, passed a bill allowing civil partnerships for same-sex couples in spite of opposition from the Church and right wing parties. Alexis Tsipras, the Greek Prime Minister, said the bill closed “a circle of embarrassment for the state”.
In an effort to illustrate the considerable progress which has been made in relation to marriage equality in Europe since the first same-sex marriage was celebrated in April 2001, the following will summarise the position in 15 European jurisdictions:
Same-sex marriage does not exist in Austria. Indeed, until recently, there was no legal basis for same-sex partnerships in Austria. This situation changed with the Act on Registered Partnerships, which came into effect in January 2010 giving a legal basis for the cohabitation of gay couples. However, Austrian registered partnerships simply provide limited rights to same-sex couples and the institution differs markedly from marriage in that jurisdiction.
From 1989 to June 2012, under Danish law same-sex couples could register a civil partnership which had the same legal effects as marriage. From June 2012, same-sex couples have been able to marry, and the possibility to register a civil partnership no longer exists. Couples who entered into a civil partnership before 2012 can convert their civil partnership into a marriage.
The Act on Registered Partnerships came into force in 2002 and, for the most part, contains the same legal provisions as those that govern marriage. Whilst the rights and obligations of those in civil partnerships and in opposite sex marriages are similar, the denial of the institution of marriage to same-sex couples was seen by many Finns as discriminatory.
A bill legalising same-sex marriage in Finland was approved by the Finnish parliament on 12 December 2014. This legislation provides that same-sex marriages will be available in Finland from March 2017.
Since 17 May 2013, the right to marry has been recognised for same-sex couples in France. Two persons can now contract marriage if the personal law or the law of the place of domicile or habitual residence of at least one of them permits it.
There is no provision for same-sex marriage in Germany, however, same-sex couples have the ability to enter into same-sex partnerships. Whilst opinion polls show that around 75% of the German public supports same-sex marriage, Angela Merkel’s administration remains opposed to pushing for legalisation over fears that it could upset voters on the right.
The recent civil partnership legislation in Greece is regarded as a milestone in a country where the rights of its gay and lesbian citizens have never been high on the political agenda.
In Guernsey, legislation providing for same-sex marriage was approved in December 2015. Future legislation to bring the law into effect will be drafted in the coming months.
In Jersey, the legislature “the States” has supported the proposition that same-sex couples should be allowed to marry. Legislation to bring this into effect is scheduled for introduction by January 2017.
Same-sex marriages are not recognised under Hungarian law, however, since July 2009 same-sex couples can enter into registered partnerships.
In January 2012, a constitutional amendment restricting marriage to opposite-sex couples came into effect.
REPUBLIC OF IRELAND
As indicated above, same-sex marriage is available in the Republic of Ireland.
Currently in Italy, same-sex couples do not have the right to marry or even register a civil partnership.
Following the recent recognition of civil partnerships in Greece, Italy is the last remaining country from the EU15 that still fails to provide any sort of relationship equality for same-sex couples.
On 1 April 2001, the institute of marriage was opened to two people of the same sex.
In Polish law, there is no regulation concerning civil partnership or same-sex marriages. However, in certain circumstances one of the partners can benefit from some law regulations on the basis of "remaining in cohabitation" status. Article 18 of the Polish Constitution limits the institution of marriage to opposite-sex couples.
In July 2005, traditionally conservative and Roman Catholic Spain introduced legislation providing for same-sex marriage. Same-sex spouses have exactly the same rights and obligations as heterosexual spouses. There is no legal equivalent under Spanish law to the concept of civil partnership as understood in other European jurisdictions.
UK: ENGLAND AND WALE
The Marriage (Same-Sex Couples) Act 2013, which became effective in March 2014 provides for marriage equality for same-sex couples in England and Wales. Same-sex married couples are treated in the same way as opposite sex married couples, except that religious organisations may choose whether or not to opt in to marrying same-sex couples according to their rites and marriage procedures.
Civil partners are now able to convert their civil partnership into a same-sex marriage.
The Marriage and Civil Partnership (Scotland) Act 2014 (2014 Act) came into force on 16 December 2014 and allows same-sex couples to formalise their relationship as a marriage instead of a civil partnership. Therefore, Scotland now legally recognises and regulates three types of relationship for both same-sex and heterosexual couples: cohabitation, civil partnership and marriage.
This article was published in Family Advocate in April 2016 and co-written with Katie-Claire Lloyd, trainee solicitor at Penningtons Manches LLP.