1. Same sex marriages in international family law – a clash of legal cultures? Academica 2014 University of Tartu, Faculty of Law Monday, October 13, 2014 Prof. Dr. Volker Lipp1

2. Overview  Same sex couples in family law and the law of succession  Same sex marriage and registered partnership in a comparative perspective  Legal issues in international cases  Views on some international instruments and their approaches Prof. Dr. Volker Lipp2

3. Introduction  Same sex marriage - promoted, prohibited, tolerated  Same sex marriage and law of succession o Spouse as legal heir o Reserved share of spouse  The legal situation of international couples of the same sex - a clash of legal cultures? Prof. Dr. Volker Lipp3

4. Same sex marriage in family law  Right to privacy: no state interference with private life  Cohabitation  Registered partnership o For all couples (e.g. French PACS) o For same sex couples only (e.g. Germany)  Same sex marriage (e.g. Norway, Sweden, The Netherlands, Spain) Prof. Dr. Volker Lipp4

5. Same sex marriage 2000 Netherlands 2003 Belgium 2004 Massachusetts (USA) 2005 Spain, Canada 2009 Norway, Sweden 2010 Argentina, Iceland, Portugal 2012 Danmark 2013 France 2013/14 UK (except Northern Ireland) Prof. Dr. Volker Lipp5

6. Same sex marriage in the US  Federal Defense of Marriage Act 1996 o Same sex marriage = state legislation o No state obliged to recognise same sex marriage concluded in another state  Same sex marriage o Allowed in 6 states and D.C. o Prohibited in 45 states (in 30 states by state constitution) o Some recognise, others do not Prof. Dr. Volker Lipp6

7. Europe (Council of Europe)  Same sex marriage: 10 countries  Registered partnership: 12 countries  Nothing of the above: 29 countries Prof. Dr. Volker Lipp7

8. International family law issues  Conclusion of marriage / registered partnership o Where? - Where it is known! o Which law?  Personal law (nationality, domicile, habitual residence)  Law of place where it is concluded (lex loci celebrationis) Prof. Dr. Volker Lipp8

9. International family law issues  Recognition of marriage / partnership concluded abroad o What does „recognition“ mean?  Status as such  Effects of status for maintenance, property, law of succession etc. o Standard issues if it is known in other state o Special problem if it is unknown in other state Prof. Dr. Volker Lipp9

10. Hague Convention No. 26 of 1978  Validity and recognition of the validity of marriage  Ratified by 3 countries only (Australia, Luxembourg, Netherlands)  Does not cover same sex marriage (not known in 1978) Prof. Dr. Volker Lipp10

11. ICCS Convention No. 32 of 2007  On the recognition of registered partnerships  Of couples of the same or different sex  Modelled after the Hague Marriage Convention No. 26 of 1978  Recognition of partnership registered in one member state by all other member states  Grounds for non-recognition  Not yet in force Prof. Dr. Volker Lipp11

12. EU Regulation 2201/2003 (Brussels II bis)  Proceedings of divorce, legal separation, and annulment of marriage  Same sex marriage not included (known in only 2 member states) Prof. Dr. Volker Lipp12

13. EU Regulation 1259/2010 (Rome III)  Applicable law for divorce and legal separation of marriage  Same sex marriage not included (no consensus)  No member state is obliged to separate or divorce a same sex marriage if it does not know it (Preamble 26) Prof. Dr. Volker Lipp13

14. EU Succession Regulation (650/2012)  On the succession to the estate of a deceased person  Succession right of spouse or partner and right to reserved share (Art. 23 § 2 lit. b and h)  „marriage“ and „partnership“ as preliminary question Prof. Dr. Volker Lipp14

15. EU Succession Regulation (650/2012)  Succession Regulation does not apply to o family relationships o „relationships deemed by the the law applicable to such relationships to have comparable effects“  „marriage“ and „partnership“ left to national (conflict) laws Prof. Dr. Volker Lipp15

16. EU Succession Regulation (650/2012)  Conflicts likely  e.g. if a member state regards same sex marriage / registered partnership as valid and surviving spouse / partner would have right of succession or to a reserved share under that law, but law of succession does not? Prof. Dr. Volker Lipp16

17. Proposal for EU regulations on the property of international couples  2 proposals, one for matrimonial property, one for property in registered partnerships  Inclusion of recognition of foreign marriage and partnership rejected, only property issues  Definition of registered partnership includes couples of same and of different sex  No definition of marriage Prof. Dr. Volker Lipp17

18. Proposal for EU regulations on the property of international couples  Commission: property in same sex marriage should be left to national (conflict) laws  But are there other problems than with property in registered partnerships? Prof. Dr. Volker Lipp18