Several nations have devised
methods to eliminate marital status discrimination against same-sex couples or other
couples who are unmarried but who are living together in a family unit.
In Baker v. State, the Vermont Supreme Court suggested
that the Legislature might look to some of these jurisdictions as it considers the
possibility of creating a "domestic partnership" system parallel to marriage.
The court stated:
"We do not purport to infringe upon the prerogatives of
the Legislature to craft an appropriate means of addressing this constitutional mandate,
other than to note that the record here refers to a number of potentially constitutional
statutory schemes from other jurisdictions. These include what are typically referred to
as "domestic partnership" or "registered partnership" acts, which
generally establish an alternative legal status to marriage for same-sex couples, impose
similar formal requirements and limitations, create a parallel licensing or registration
scheme, and extend all or most of the same rights and obligations provided by the law to
married partners."
Statutes Enacted into Law
Denmark:
Denmark was the first nation to enact a
comprehensive set of legal protections for same-sex couples. The Danish "Registered
Partnership Act" became effective June 1, 1989. It created a statutory scheme
parallel to marriage, making most of the benefits and obligations of marriage apply to
registered same-sex partners. Notable exceptions included: (1) adoption of foreign
children; (2) artificial insemination for female couples; and (3) church weddings in the
official church of the state. Another distinction from marriage included a requirement
that one of the partners must be a Danish citizen or the couple must have resided in
Denmark for two years.
Norway:
Norway adopted a similar "Registered
Partnership Act" in 1993. It is virtually identical to the law passed in Denmark.
Sweden:
Sweden passed a "Registered Partnership
Act" in 1994. It is similar to the laws adopted in Denmark and Norway with the
exception that it contains a provision giving reciprocity to similar partnerships entered
into in other nations. Sweden has a separate "Domestic Partnership Act" for
unmarried heterosexual couples.
Iceland:
Iceland passed a "Registered Partnership
Act" in 1996. It is similar to the laws in Denmark, Norway, and Sweden, and contains
the same exceptions, but goes farther in one aspect. The law in Iceland allows for a
second-parent adoption of children born to a partner in a previous opposite-sex
relationship.
Hungary:
In 1995, Hungary’s Constitutional Court
declared unconstitutional a law giving various rights and protections to opposite-sex
"common law" couples but denying them to same-sex couples. It ordered the
Parliament to cure the problem by March 1, 1996. The court made it clear, however, that it
was not dealing with ceremonial marriages authorized by civil law. Parliament removed the
restriction in 1996, thereby placing unmarried same-sex couples on the same par as
unmarried opposite-sex couples.
Netherlands:
A "Registered Partnership Act"
became effective in the Netherlands on January 1, 1998. This law is broader than the
others in two respects. First, it is explicitly open to heterosexual couples as well as
gay and lesbian couples. Second, there is no restriction for artificial insemination. The
law, however, does not automatically make a partner the legal parent of his or her
partner’s biological child as marriage law does for a heterosexual married couple. A
separate procedure for joint custody is available to the registered partners.
During the first year of operation, the
registered partnership law was fairly popular with same-sex couples as well as
heterosexual couples. Nearly 4,000 couples registered in 1998, including 1,200 female
couples, 1,500 male couples, and 1,300 heterosexual couples.
A bill was introduced in 1999 to take the
next step, namely, removing the gender restriction from the marriage laws. It is expected
the bill will pass this year and become effective in 2001 or 2002. This would make the
Netherlands the first nation to legalize same-sex marriage. Under the bill, however,
registered partnership would not be abolished. All couples regardless of gender would have
the option of registered partnership or marriage, and the bill contains a provision that
would allow couples to transfer from registered partnership to marriage or vice versa.
The Netherlands has also taken steps to
accommodate the needs of couples who want some legal protections but not all of the rights
and obligations of marriage. Couples may entered into a cohabitation contract to spell out
their rights and obligations to each other, without assuming obligations to third parties
as required by marriage or registered partnership.
Belgium:
Belgium has started the process of reform by
passing a "Cohabitation Contract Act." Such a contract may be formed by two
unmarried adults of the same sex or opposite sex, even if they are related by blood. The
contract must be signed by a notary public and registered with a city clerk. While the
contract is in effect, both parties are jointly responsible for the expenses incurred in
their life together and all reasonable debts contracted for this purpose. The law does not
affect parental authority over children, inheritance without a will, taxes, or immigration
rights.
France:
A new relationship known as a "Civil
Solidarity Pact" was recognized by the law in France effective November 15, 1999.
Passage of this legislation was the result of a ten year process.
The civil solidarity pact is a contract
binding two unmarried adults of the same sex or of different sexes, in order to organize
their common life. Partners must register the contract with the local court where they
live. The pact may be dissolved by common consent of the partners, by marriage of one of
them, by death, or after a three months delay at the request of one of the parties.
Partners are eligible for joint taxation
benefits after three years. Inheritance rights exist after two years. A tenant’s
lease may be transferred to a partner if one of them leaves or dies. The health benefits
one partner are available to the other.