Same-Sex Couples in Spain and Catalonia

2014 ◽  
Vol 42 (1) ◽  
pp. 47-54 ◽  
Author(s):  
Monica Navarro-Michel
Keyword(s):  
Assisted Reproduction ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Same Sex ◽  
Same Sex Couples ◽  
Spanish Law

This paper aims to provide an overview of the legal regulation of same sex couples in Spain and Catalonia. It will present how regulations have evolved, from legal disregard of same sex couples to the admission of same sex marriages by the Spanish Law in 2005, upheld by the Spanish Constitutional Court. Reference will be made to Catalan law, as it provided the first comprehensive regulation on same-sex cohabitation. And finally, it will highlight some challenges still faced by same sex couples, as regards assisted reproduction.

scholarly journals INTESTATE SUCCESSION AND THE SURVIVOR OF AN UNFORMALISED SAME-SEX CONJUGAL RELATIONSHIP: Laubscher No v Duplan 2017 (2) SA 264 (CC)

Obiter ◽  
2018 ◽  
Vol 39 (1) ◽  
Author(s):  
Michael Cameron Wood-Bodley
Keyword(s):  
Constitutional Court ◽  
Same Sex ◽  
Same Sex Couples ◽  
Lesbian Relationship ◽  
Substantive Equality ◽  
Civil Union ◽  
Opposite Sex ◽  
Domestic Partnerships ◽  
The Right

When a person dies intestate his or her heirs are determined by the provisions of section 1(1) and (2) of the Intestate Succession Act 81 of 1987. Included amongst the heirs is the deceased’s surviving spouse, who either takes the entire estate or shares it with the deceased’s descendants (if any). Historically, the reference to “spouse” in the Act was taken to mean a person to whom the deceased was married in terms of the Marriage Act 25 of 1961. Accordingly, persons who were married to the deceased merely by religious rites and persons with whom the deceased was in a long-term conjugal relationship that was unformalised by marriage were excluded.The advent of constitutional democracy in South Africa resulted in a number of challenges to this status quo through reliance on the equality clause of the Bill of Rights. As a result of these challenges it has now been recognised that the survivor of a Hindu marriage, a monogamous Muslim marriage, and a polygynous Muslim marriage all have the right to inherit on intestacy as a “spouse”. Furthermore, in a groundbreaking decision in Gory v Kolver NO (Starke and others intervening) (2007 (4) SA 97 (CC)) the Constitutional Court recognised that the exclusion of the surviving partner of a gay or lesbian relationship from the right to inherit on intestacy was unconstitutional, and directed that the relevant sections of the Intestate Succession Act be amended by a reading-in of additional words to remedy the unconstitutionality. These words conferred the right to inherit on intestacy on the survivor of a monogamous permanent same-sex partnership in which the partners undertook reciprocal duties of support. At the time of writing no survivor of an unformalised opposite-sex relationship has challenged his or her exclusion from intestate succession. Possibly this reticence has been influenced by the decision in Volks NO v Robinson (2005 (5) BCLR 446 (CC)) (hereinafter “Volks”). In Volks the Constitutional Court held that it is not unconstitutional for the Maintenance of Surviving Spouses Act 27 of 1990 to distinguish between married and unmarried persons by giving the survivor of a marriage a claim for reasonable maintenance against the estate of the deceased spouse but not giving a similar claim to the survivor of a relationship in which the parties did not marry.Paleker has raised the question whether the Gory order “must still be applied in light of the Civil Union Act” but he comes to no firm conclusion, and states tentatively that “if marriage … is a precondition for inheriting, persons in same-sex unions who have not solemnised their relationship after the coming into force of the Civil Union Act … may be precluded from inheriting intestate from each other”. On the other hand De Waal and Schoeman-Malan are clearly of the view that the order in the Gory case still operates and – whilst regarding the current position as “anomalous” – they state that it “will probably continue until the Domestic Partnerships Bill [GN36 in GG 30663 of 2008-1-14] eventually does become law”. This has also been the interpretation accepted by the Master’s office acting on advice from the Senior State Law Advisor. The different treatment accorded same-sex couples by the continued retention of the benefits conferred by Gory has been defended on the grounds of substantive equality, since many practical obstacles still stand in the way of same-sex couples formalising their relationships.The question of the continued applicability of the reading-in order in Gory has now come before the Constitutional Court in Laubscher NO v Duplan (2017 (2) SA 264 (CC)) and it is this case which is the focus of this note.

scholarly journals Interpretación evolutiva de la Constitución y legitimidad del matrimonio formado por personas del mismo sexo = Evolutionary interpretation of the constitution and legitimacy of the marriage formed by persons of the same sex

2013 ◽  
pp. 541 ◽  
Author(s):  
Francisco Javier Matia Portilla
Keyword(s):  
Legal System ◽  
Constitutional Court ◽  
Same Sex ◽  
Same Sex Couples ◽  
Child Adoption ◽  
Legislative Decision ◽  
Evolutionary Interpretation

La decisión legislativa de abrir la institución del matrimonio a las parejas formadas por personas del mismo sexo y de permitirles la adopción de menores, a través de la Ley 13/2005, generó en nuestro país un, en ocasiones, enconado debate doctrinal. Si la pretensión del Tribunal Constitucional en su Sentencia 198/2012, que resuelve el recurso de inconstitucionalidad promovido contra la citada Ley, era superar dicho debate, no parece que lo haya conseguido. La opción de la mayoría de realizar una interpretación evolutiva de la Constitución, o los argumentos manejados en los Votos Particulares propician nuevas reflexiones, como son las que se ofrecen en el presente estudio.The legislative decision that opened in our legal system the marriage institution to same-sex couples, allowing child adoption, provoked, at some point, an intense doctrinal debate. If the intention of the Spanish Constitutional Court, through the Judgment 198/2012, that settled the constitutional demand promoted against the cited decision, was to finish those debates, it doesn´t seem that the purpose was achieved. The majoritarian option dealing with an evolutive interpretation of the Constitution, or the reasons given in the dissent opinions, brought new considerations, like the ones given in this paper.

When, if not Now? An Update on Civil Partnership in Germany

2016 ◽  
Vol 17 (3) ◽  
pp. 487-508 ◽  
Author(s):  
Anne E.H. Sanders
Keyword(s):  
German Law ◽  
Case Law ◽  
Constitutional Court ◽  
Same Sex ◽  
Same Sex Couples ◽  
Recent Developments ◽  
German Constitution ◽  
German Constitutional Court ◽  
Same Sex Parents ◽  
Open Marriage

Following the article “Marriage, Same-Sex Partnership, and the German Constitution,” which was published in theGerman Law Journalin 2012 (seeAnne Sanders,Marriage, Same Sex Partnership and the Constitution, 13 German L.J. 911 [2012]), this article provides an update on recent developments in relation to same sex partnerships in Germany. The focus of this Article is case law of the German Constitutional Court from 2002 through today, but it also discusses other court decisions in relation to the rights of same sex parents. The Article concludes with an examination of a recent draft law which—if successful—will open marriage to same sex couples. While its chances for success are extremely slim, this Article argues that same sex marriage will eventually be introduced in Germany.

scholarly journals Differences in the legal regulation of the activities of sexual minorities in Europe and Russia

2019 ◽  
Vol 5 (2) ◽  
pp. 268-273
Author(s):  
M. Makhmutova ◽  
A. Cherenkov ◽  
Keyword(s):  
Comparative Analysis ◽  
Military Service ◽  
Sexual Minorities ◽  
Modern Society ◽  
Legal Regulation ◽  
Legal Rights ◽  
Same Sex ◽  
Inheritance Law ◽  
Same Sex Couples ◽  
The Usa

This article provides a comparative analysis of the situation of sexual minorities and their legal rights in Europe, the USA and Russia, as well as their differences, and the attitude of society to people of non-traditional orientation. In addition, the article considered the main problem of modern society is the inability of people to perceive non-traditional relations in military service, in employment at work and much more. Even many liberal countries still do not fully approve of this kind of relationship. Many same-sex couples are prohibited from adopting children, and there are real problems in the field of inheritance law. The article addressed the problem of discrimination of these relations in Russia. This article also examined court practice regarding the underreporting of the rights of sexual minorities.

Same-Sex Marriage and Italian Exceptionalism

ICL Journal ◽  
2019 ◽  
Vol 12 (4) ◽  
pp. 431-456
Author(s):  
Matteo M Winkler
Keyword(s):  
Constitutional Court ◽  
Three Dimension ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Same Sex Couples ◽  
Dimension Analysis ◽  
The Status ◽  
Heated Debate ◽  
Male To Female

Abstract This article unveils Italy’s exceptionalism in recognising and protecting same-sex couples by adopting a three-dimension analysis: constitutional, comparative and supranational. It maintains that, compared to other countries whose courts were sympathetic with the legal claims raised by lesbian and gay people, Italy’s Constitutional Court adopted a totally different approach, reinforcing the heteronormativity of marriage in a way that delayed all efforts to pass a law on same-sex registered partnerships. The Constitutional Court, in particular, interpreted the Constitution, the experience of other nations and supranational law according to heteronormativity, an example that is unique in the comparative context. As an illustration, this article addresses the case Bernaroli vs Ministry of the Interior. In Bernaroli, a male-to-female transgender person wanted to remain married to her wife notwithstanding the transition. The case ignited a heated debate among scholars and questioned the courts’ opinions as to the human rights dynamics surrounding same-sex marriage and, more importantly, about the current role of heteronormativity in marriage law. This article concludes that the legal existence of Bernaroli’s marriage represents a constant challenge to the status quo and highlights the permanent crisis of heteronormativity. After the Austrian Constitutional Court’s recent ruling that declared the law on same-sex domestic partnership to be discriminatory, heteronormativity’s defence became even more untenable, making Italy’s a true exception in the continent’s legal landscape.

scholarly journals The Crusade against Same-Sex Marriage in Colombia

2018 ◽  
Vol 8 (1) ◽  
pp. 32-49
Author(s):  
Mauricio Albarracín ◽  
Mauricio Albarracín
Keyword(s):  
Popular Culture ◽  
Gay Marriage ◽  
Disciplinary Action ◽  
Constitutional Court ◽  
Same Sex ◽  
Public Officials ◽  
Same Sex Marriage ◽  
Same Sex Couples ◽  
Definition Of ◽  
The Relationship

In 2011 the Colombian Constitutional Court laid the groundwork for gay marriage, ruling it unconstitutional to exclude same-sex couples from the benefits of legal marriage. Instead of extending marriage to same-sex couples, however, the Court’s decision left it to Congress to pass a law regulating such unions. Sharply divided on the issue, Congress failed to act. The then-Inspector General, a conservative Catholic, launched a wide-ranging legal and moral attack on marriage rights for same-sex couples, an attack which lasted until the Constitutional Court in 2016 expressly authorized these weddings. The attack included not only briefs and legal actions but also disciplinary action against public officials that celebrated same-sex weddings. This article seeks to unpack both the subtle and overt ways in which religious homophobia reflects and is reflected in popular culture and argues for a complex understanding of the relationship between homophobia in popular culture, religious definition of homosexuality as sinful, and the recourse to Constitutional Law by advocates for and against same-sex marriage.

scholarly journals The best interests of the child in medically assisted reproduction: A moral-constitutional overview

2021 ◽  
pp. 37
Author(s):  
Fereniki Panagopoulou - Koutnatzi
Keyword(s):  
Human Rights ◽  
Assisted Reproduction ◽  
Elderly Women ◽  
Single Parents ◽  
Best Interests ◽  
Same Sex ◽  
Borderline Cases ◽  
Medically Assisted Reproduction ◽  
Same Sex Couples

The infinite and constantly developing options of medically assisted reproduction (MAR) reasonably raise the issue of its permitted range. Proponents of human rights fight for the strengthening of the reproductive right, the access to it by even more people, such as single parents, same-sex couples, elderly women, HIV carriers etc. Still concerning, however, is the fact that the defenders of human rights often forget the rights of the fetus or the child, which cannot be expressed with the same intensity. In the framework of the present study, we investigate the true interests of the child in MAR, in relation to the reproductive right in the light of some borderline cases.

Taiwan's Road to Marriage Equality: Politics of Legalizing Same-sex Marriage

2018 ◽  
Vol 238 ◽  
pp. 482-503 ◽  
Author(s):  
Ming-sho Ho
Keyword(s):  
Political Process ◽  
Electoral System ◽  
Democratic Progressive Party ◽  
Constitutional Court ◽  
System Reform ◽  
Marriage Equality ◽  
Same Sex ◽  
Same Sex Couples ◽  
Lgbt Movement ◽  
Progressive Party

AbstractIn May 2017, Taiwan's Constitutional Court reached a landmark decision that marriage should be opened to same-sex couples within two years, making Taiwan potentially the first country in Asia to realize marriage equality. How can we explain the success of the LGBT movement here? I argue that explanations based on cultural proclivity, public opinion, and linkages to world society, are inadequate. This article adopts a “political process” explanation by looking at changes in the political context and how they facilitate the movement for marriage equality. I maintain that electoral system reform in 2008, the eruption of the Sunflower Movement in 2014, and the electoral victory of the Democratic Progressive Party in 2016, stimulated Taiwan's LGBT mobilization, allowing it to eventually overcome opposition from the church-based countermovement.

scholarly journals Expanding same-sex couples’ access to assisted reproduction

2016 ◽  
Vol 106 (3) ◽  
pp. e111
Author(s):  
S. Daneshmand ◽  
C.E. Bedient ◽  
F. Garner ◽  
B.S. Shapiro
Keyword(s):  
Assisted Reproduction ◽  
Same Sex ◽  
Same Sex Couples
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