European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association

European Commission’s proposal on property right of married and registered couples: cautious welcome

Today the European Commission launched a communication proposing two regulations dealing with property rights for bi-national married and registered couples. These proposals do not encroach on EU Member States sovereignty on domestic family law matter, but merely provide a framework for the applications of existing law on property regimes alone.

ILGA-Europe welcomes this important initiative by the European Commission which for the first time proposes clear regulations that would provide legal certainty to both bi-national married and registered couples in dealing with property issues following a divorce/separation or the death of one partner.

However, ILGA-Europe is concerned with the fact that the proposal comes in the form of two separate regulations – one for married couples, and the other for couples in registered partnerships. While acknowledging the differences between marriage and registered partnership, ILGA-Europe’s mapping of existing marriage and registered partnership legislations in the EU shows that in virtually all cases, the substance of the property rights regimes are identical under both institutions and as a result the separation of marriage and registered partnership into two separate regulations was unnecessary.

As a matter of fact, there is strong over representation of different-sex couples in marriage, and same-sex couples in registered partnerships. In this context, ILGA-Europe is concerned that separate proposals could give rise to a hierarchy of rights and lead to indirect discrimination on the ground of sexual orientation and marital status, irrespective of the gender neutral language used in the formulation of the two proposals.

Evelyne Paradis, Executive Director of ILGA-Europe, said:

“ILGA-Europe welcomes these important proposals, as well as the Commission’s call on the Council to view these two regulations as closely linked and adopt them as one package. However, ILGA-Europe is concerned that the current proposals may be indirectly discriminatory and therefore calls for an equality impact assessment of the separation of the two regulations based on Article 21 of the Charter of Fundamental Rights which bans discrimination including on the ground of sexual orientation.

Once the proposals meet the test of equality, we call upon the European Council to reaffirm the EU’s equality principles and adopt the regulations and equip bi-national married and registered partners irrespective of sexual orientation with a clear system of resolving property issues in difficult times and therefore improve daily life of millions of people.”

European Commission’s press release on the regulations

European Commission’s proposals