“..in the case Schalk and Kopf V. Austria, the European Court revised its case law in force at that time,
which only accepted that the emotional and sexual relationship of a same-sex couple constitutes “private
life,” but had not considered what constituted “family life,” despite the applicants having lived together in
a long-term relationship. Applying a broader concept of family, the European Court established that “a
cohabiting same-sex couple living in a stable de facto partnerships, falls within the notion of ‘family life’,
just as the relationship of a different-sex couple in the same situation would,” considering it “artificial to
maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy ‘family life’
for the purposes of Article 83”. [Footnotes omitted.]
6.
It also indicates (para. 173), correctly, that, “in the of case X, Y and Z v. United
Kingdom, the European Court of Human Rights, following an ample concept of family,
acknowledged that a transsexual, their female partner and a child may comprise a family,
stating that:
When deciding whether a relationship can be said to amount to “family life”, a number of factors may be
relevant, including whether the couple live together, the length of their relationship and whether they
have demonstrated their commitment to each other by having children together or by any other means.4”
7.
For greater clarity, and also keeping in mind any future recourse to the case law or
rulings of other bodies for the protection of human rights, I shall briefly outline the facts of
each case cited, as well as the EHCR’s conclusions of law.
Case Schalk and Kopf v. Austria
8.
The facts of the case may be summarized as follows: the applicants, born in 1962 and
1960, respectively, are a same-sex couple living in Vienna. In 2002 they began formalities
to be able to marry, but the Austrian authorities considered that they lacked the capacity to
contract marriage, given that both applicants were men and, according to Article 44 of the
Civil Code, only two persons of opposite sex can marry (paras. 7 to 9). In Austria, the
Registered Partnership Act (Eingetragene Partnerschaft-Gesetz) provides same-sex couples
with “a formal mechanism for recognizing and giving legal effect to their relationships,” with
similar characteristics to those of marriage in many aspects (such as “inheritance law, labor,
social and social security law, fiscal law, the law on administrative procedure, the law on
data protection and public service, passports and registration issues, as well as the law on
foreigners” (paras. 16 to 22). However, a number of differences between marriage and
registered partnerships remain in several other aspects, particularly with regard to the
possibilities of adoption or access to artificial insemination.
9.
The legal considerations begin (paras. 24-26) with an analysis of European Union Law
(Article 9 of the Charter of Fundamental5 Rights and various Directives), and in particular of
the laws of the 47 Member States of the Council of Europe (paras. 27 to 34). Only six of
these currently grant same-sex couples equal access to marriage; another 13 States have
“some kind of legislation permitting same-sex couples to register their relationships.” One
3
The judgment in the case Schalk and Kopf v. Austria (No. 30141/04) was delivered by a Chamber of the
European Court of Human Rights on June 24, 2010, and became final on November 22, 2010, according to Art.
44.2 of the Convention (text established by Protocol N° 11).
4
The judgment in the case of X, Y and Z v. United Kingdom (No. 21830/93) was delivered by the Grand
Chamber on April 22, 1997.
5
The text of this provision states: “Article 9 -Right to marry and to found a family – which guarantees “the
right to marry and to found a family, according to the national laws governing the exercise of that right.” As noted,
the reference to “men and women” disappears, but there is a general remit to the provisions of national laws.
3