Part of The Student Room Group

  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

A distinct way of testing our approach to marital and non-marital heterosexual relationship is to ask ourselves how many of the same principle might apply to gay and lesbian relationships.

Extracts from this document...

Introduction

A distinct way of testing our approach to marital and non-marital heterosexual relationship is to ask ourselves how many of the same principle might apply to gay and lesbian relationships. Such a question is relatively new on the Family law agenda in this country. Until the Sexual Offences (Amendment) Act 1957, sexual intercourse between males was a criminal offence. Complaints that such law violated the right to respect for private life under Article 8 of the European Convention on Human Rights were routinely found inadmissible during the 1950s and 1960s. However, things started changing in the 1970s by the Court of Appeal decision in 19811, that the total prohibition in Northern Ireland was a breach of Article 8(1) which could not be justified under Article 8(2) as "necessary in a democratic society" either for the protection of morals or the rights and freedoms of others. But that does not mean that same-sex couples have to be accorded the same rights and duties as married or unmarried opposite sex couples. When equality claims of gay men and lesbian women have been rejected by their national courts, they often turn, as a last resort, to the European Court of Human Rights. ...read more.

Middle

Under national legislation the court grants a succession right to the person who lived together as 'husband and wife', but the Court of Appeal interpreted this phrase as meaning 'unmarried different sex partner'. The Commission concluded that the applicant did not have a 'family life' with her deceased partner. The appellant's strongest argument was that she had suffered discrimination in relation to her 'home', in contradiction of Articles 8 and 14 'for no other reason that she was of the wrong sex'. The Commission accepted that she had been treated differently but they found an objective and reasonable justification for such treatment, concluding that it was not 'discrimination' because 'the family (to which the relationship of heterosexual unmarried couples can be assimilated) merits special protection in society and [the Commission] sees no reason why a [government] should not afford particular assistance to families7 In Roosli v. Germany the Commission merely adopted the same reasoning as that in Simpson. The Commission found no reasoning to depart from Simpson, having regard to the German courts reasoning: 'Views on marriage and family had changed in society and justified the extension of the [statutory terms 'family member'] to [unmarried] heterosexual couples. ...read more.

Conclusion

Both cases were decided in the late 1990's when changes, such as the enactment of same sex registered partnership in law in Denmark, Norway, and Sweden, has already taken place in Europe. The ECHR appears not to adopt as harsh an approach as the Commission when considering other forms of 'sexual orientation discriminated'10. In Salgueiro da Silva Mouta v. Portugal, Salguerio (a gay father) challenged a ruling before the ECHR, arguing that the Court of Appeal violated the convention by refusing to award custody of his daughter solely because of his sexual orientation. The ECHR held that the Court of Appeal had created 'a difference of treatment between [the father] and [the] mother, which was based on [the father's] sexual orientation'11 and was therefore a breach of Article 1412. 1 Dudgeon v. U.K (1981) 4 E.H.R.R. 149 2 Wintermute Robert, Legal Recognition of same sex partnership [2001] pg 713 3 Ibid. pg 714 4 Cassey v. UK [1990] 13 E.H.R.R 622 5 [1986] 46 D.R. 274 6 No.28318/95 (15 May 1996) (Com. A.D) 7 Para 7 8 [1998] ICR 449 9 at para 35 10 Helfer, LR. Sexual Orientation and the European Court of Human Rights: New Activism or Cautious incremetalism? (http://archive.adu.org/library/IC/R/2001/ici) 11 Para 35 12 Application No.33290/96 (Eur.CT.H.R December 21 1999) ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our GCSE Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

or


Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related GCSE Law essays

  1. Criminal Law (Offences against the person) - revision notes

    R v Prentice & Sulman (1992) - 2 doctors held jointly responsible for injecting a patient into the spine with a drug that was meant to be introduced via a drip. Both doctors were found guilty of GRIM Appealed and conviction was overturned R v Holloway (1992)

  2. It is a matter of record there is no such thing as a right ...

    the two recent cases will merely assist in the definition of privacy. FUTURE DEVELOPMENT/CONCLUSION Although it can be argued that despite the development of the law of confidence through the incorporation of the ECHR, there are still gaps offered to privacy by the common law.

  1. Vicariouis liability and article 21

    In the case of Bisan Devi v. Sirbaksh Singh12 , where the husband of the claimant was run over and killed by a truck driver by his rash and negligent driving, the owner of the truck was held liable to pay the compensation. This is a remarkable case the owner of the truck tried a lot to

  2. The Constitutionalisation of the Treaties by the European Court of Justice.

    The Doctrine of Supremacy In 1964, in the case of Costa v ENEL21 the Court was faced with the issue of whether a Treaty provision could prevail over conflicting national legislation in the national courts. Initially the Court was again faced with the problem of whether this question really was a matter of interpretation.

  1. The Law Relating to Negotiable Instruments

    The institution is directly obligated t accept and pay its traveler's check according t the instrument's terms. The purchaser must pr( vide his or her authorized signature on the traveler's check at the time it is bought and when is used.

  2. Worlds Apart: Orientalism, Antifeminism, and Heresy in Chaucer's Man of Law's Tale

    1271), which encourages Muslims to think that "they themselves were in a fair way to becoming Christians." A later work expressing the same viewpoint but addressed to a Christian audience is Mandeville's Travels. It opens its discussion of the Saracens with an enumeration of the beliefs and doctrines shared by

  1. prisoners rights

    In Sheela Barse v Union Territory, 1993 (4) SCC 204 it was held that jailing of non-criminal mentally ill persons is unconstitutional and directions were given to stop confinement of such persons. (10) The judicial work done by this Court on the subject at hand would not be complete without mentioning what was held in Mohd.

  2. ‘The present law does not properly recognise, in all their forms, relationships which are ...

    A marriage between a man and a woman who was born a man was not a valid marriage. The criteria for determining a person's gender in order to determine the validity of a marriage remained the three biological criteria set out in Corbett v Corbett (1970), namely chromosomal, gonadal and genital.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work