José M. L. Villaverde
The evolution of society in Europe has led in the past few years to an evolution in the conception of partnership, marriage and family. From this evolution some Member States have provided legal recognition to same-sex couples, in very different ways: either by opening the institution of marriage to same-sex couples (Spain, Belgium, the Netherlands and, recently, Norway and Sweden) or by enacting legislation on registered partnerships, with a very different content, depending on the country (Britain, Denmark or France, for instance). In the other hand, the starting legal and political context in each country was different.
The first objective of this project is bringing a comparative approach to the legal situation of same-sex couples with the analysis of the national law of three jurisdictions in this matter: the Spanish law, the Danish law, and the law of a third country (to be determined).
• Spain: the Act 13/2005, that amended the Civil Code of 1889,opened the marriage institution to same-sex couples. Also Spain, made up by 17 Autonomous Communities (CCAA), each with a Parliament and Autonomous High Tribunals. Before the Act 13/2005, some of the CCAA passed legislation on same-sex unions, with different contents (Navarra and The Basque Country allowed joint adoption, for instance).
• Denmark: the first country that legally recognised same-sex couples by passing the Registered Partnership Act No 372 of 1989. However, these unions are not equal to marriage (joint adoption is not allowed, for instance) and they are only open to same-sex couples.
The analysis of these different legal answers would lead to the possibility of extracting some common principles in the matter and continuing to the second objective: analysing and defining the aspects and problems of Private International Law. It is a more common situation that couples (including same-sex couples) have an external element involved (i.e. a marriage between two parties with different nationality, or those who have established their habitual residence in another Member State). But, in the case of same-sex couples, this creates a complicated situation as only some EU countries have legislated on the subject, and this legislation differs from country to country.
Can the national law of the Member States effectively solve these conflicts of laws and jurisdictions and so giving a satisfactory answer to the rights of these couples and families without a major EU harmonisation or is that harmonisation necessary? If harmonisation is needed, is it possible? How can common-grounds for such harmonisation be found and what would they be?