Same-sex marriage

(Application No. 30141/04), 26 June 2007

Find Court’s judgement here.

• The applicants, a same-sex couple, complained that the authorities’ refusal to allow them to contract marriage violated Article 12 of the Convention.
• ILGA-Europe, together with FIDH, ICJ and AIRE Centre submitted the following:
  • There is a need for guidance on whether “family life” in Art. 8 should be interpreted as including same-sex couples. They consider that Karner v. Austria (2003) implies that same-sex couples (without children) enjoy “family life”. Furthermore, national courts in European and other democratic societies have treated unmarried same-sex couples (without children) as families.
  • If the European Convention does not yet require equal access to legal marriage for same-sex couples, it is indirect discrimination based on sexual orientation to limit a particular right or benefit to married different-sex couples, but provide no means for same-sex couples to qualify. There also is a growing consensus in European and other democratic societies that same-sex couples must be provided with some means of qualifying for rights or benefits attached to marriage.
• The European Court of Human Rights delivered its judgment on 24 June 2010.
• The Court considered that Article 12 does not impose an obligation on the respondent Government to grant a same-sex couple such access to marriage (para 63). However, the case is important because the Court held that the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would (paras 94-95). Further, the Court observed that legislation gave the applicants a possibility to obtain a legal status equal or similar to marriage in many respects. 

Tenancy for surviving same-sex partner

(Application No. 40016/98), 12 March 2002 

Find Court’s judgement here. (Violation of Article 14 of the Convention taken in conjunction with Article 8)

• The applicant claimed to have been a victim of discrimination on the ground of his sexual orientation in that he was denied the status of “life companion” of the late Mr W., thereby preventing him from succeeding to Mr W.’s tenancy.
• ILGA-Europe, together with Liberty and Stonewall, submitted the following:
  • There is a sufficiently broad European consensus that unmarried same-sex partners (with or without children) enjoy “family life” in the same way as unmarried different-sex partners (with or without children).
  • This requires that, where an unmarried different-sex partner qualifies to succeed to the tenancy of an apartment or house after the death of their partner (the legal tenant), an unmarried same-sex partner must receive the same protection against having the loss of their partner, and the trauma of bereavement, compounded by the hardship of suddenly losing their home.
• The European Court of Human Rights delivered its judgment in 2003.
• The Court recognised that the subject matter of the application involved an important question of general interest not only for Austria but also for other States Parties to the Convention. In this connection the Court referred to the submissions made by ILGA-Europe, Liberty and Stonewall, whose intervention in the proceedings as third parties was authorised as it highlighted the general importance of the issue (para 27). The Court reiterated that differences based on sexual orientation require particularly serious reasons by way of justification. It found that the Government had not offered convincing and weighty reasons justifying the discriminatory treatment against the partner of the same sex, which thus constituted a violation of Article 14 of the Convention taken in conjunction with Article 8.