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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.

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