Private International Law Aspects of Registered Partnerships and Other Forms of Non-Marital Cohabitation in Europe

• Author: Katharina Boele-Woelki
• Position: Professor of Private International Law and Comparative Law, University of Utrecht, the Netherlands.
• Pages: 1053-1059

Page 1053

Professor of Private International Law and Comparative Law, University of Utrecht, the Netherlands.

I New Forms Of Non-Marital Cohabitation In Europe

During the last decade, a number of European countries have introduced the concept of a "registered partnership" for same-sex couples or have alternatively enacted similar statutory regulations for this purpose. Denmark took the lead in 1989 with the introduction of the registered partnership, followed by Norway (1993), Sweden (1995), Iceland (1996), and the Netherlands (1998).¹ The hallmark of the registered partnership is that, in principle, all legal consequences of marriage are equally applicable to registered partners, with the exception of consequences arising from the right of legal status as a child. Similar, but less far-reaching unions, intended for homosexual couples, have applied since October 23, 1998, in Catalonia,² while France implemented the Pacte Civil de Solidarité (PaCS) on October 16, 1999.³ In Belgium, the Statutory Cohabitation Act was published on January 12, 1999, in the Bulletin of Acts, Orders and Decrees.⁴ Elsewhere in Europe, statutory regulations are being prepared to regulate cohabitation, especially between same-sex couples. In Germany, a bill on the eingetragene Partnerschaft concerning same-sex couples is expected very shortly.⁵ The Max Planck Institute in Hamburg has been commissioned by the German Ministry of Justice to compile a comparative law report in which the developments in the countries which have introduced this institution are analyzed and compared so that a proposal may be elaborated in this respect. Influenced by the comprehensive discussion over the Page 1054 PaCS in France, the Spanish Government, at the beginning of 1998, introduced a bill concerning the implementation of a contrato de union civil which was intended for heterosexual, homosexual, and asexual couples. Finally, in Switzerland, on February 23rd of this year, a symposium was held on cohabitation outside the confines of marriage.⁶ Further legislative initiatives will undoubtedly follow in other European countries. It is merely a question of time.

Given the increasing internationalization of relationships, these new statutory regulations provide sufficient reason to study and to make proposals concerning rules of jurisdiction, conflicts, and recognition. In the Netherlands, this subject has received extensive attention in the form of a proposal by the Netherlands Standing Committee on Private International Law for a number of private international law (conflicts of law) provisions on registered partnerships. This proposal was published in May 1998.⁷ As far as the Belgian situation is concerned, Erauw and Verhellen have recently made some proposals dealing with questions concerning the applicable law.⁸ Finally, it should be mentioned that at the Fifth European Conference on Family Law, which was held in the Hague in March 1999, and organized by the Council of Europe and the Dutch Ministry of Justice, this issue was discussed at great length.

II Various Answers To The Private International Law Questions Arising From The New Regulations

The countries which have introduced the institution of the registered partnership, or have otherwise regulated stable unions, have attached divergent legal consequences thereto.⁹ To date, not one single national regulation is completely in conformity with another national regulation. Two major differences must be mentioned. First, there are the regulations covering registered partnerships, as well as those covering legalized cohabitation for distinct couples (solely for homosexuals or also for heterosexuals). Second, in a number of countries, the new regulations are considered merely to create a simple contractual relationship,¹⁰while in other legal systems, the regulations determine personal status.

All this does not make things easier for private international law. Apart from this, it can be observed that among the European countries there has been no mutual Page 1055 collaboration concerning the introduction of a new institution such as the registered partnership or other comparable regulations. Despite extensive comparative law studies, the fear remains that this situation will not change. This also holds true for the countries which are preparing legislation in this field. As a consequence, private international law will have to enter the framework as a makeshift solution because, in a united Europe, international non-marital relation-ships between homosexuals and heterosexuals will, in any case, not remain at bay. The question arises whether the problems of private international law must be solved by the national legislators and the national courts independently of each other. Should these problems not be solved collectively on a regional or inter-national basis?

Before this question is analyzed, a short overview of the various approaches regarding the private international law aspects will be presented. If one were to compare the proposed Dutch private international law regulations concerning the registered partnership with the statutory regulations in the Scandinavian countries, it would appear that different approaches have been chosen. In the Dutch proposal, practically all the conceivable private international law questions concerning the registered partnership are regulated in 35 articles; whereas the Scandinavian legislators have basically restricted themselves to regulating the question of who can enter into a registered partnership. They impose the condition that at least one of the partners must be a national of their country and must permanently reside there.¹¹ As far as the mutual recognition of their registered partnerships is concerned, only oral agreements have been made between the Ministers of Justice of Denmark, Norway and Sweden.¹² The question is how these countries view the Dutch registered partnership, the French PaCS, and the Catalonian Stable Couples Act-which differ from the Scandinavian regulations because they also encompass heterosexual couples-considering the fact that before the agreement between their Ministers, these countries did not mutually recognize such partnerships. If problems of...