“The State must provide for rights and legal recognition for same-sex couples, but is not forced to extend the marriage to these couples”. Such statement was made by the European Court of Human Rights in the recent decision Chapin and Charpentier vs. France, handed down on 9 June 2016 (affaire CHAPIN v. FRANCE, Requête no 40183/07).
The case arose in France before the approval of the French law No 2013-404 of 17 May 2013 that ensures marriage for all sort of couples. This Act opens marriage to same-sex couples amending article 143 of the Civil Code that now reads: “Marriage is contracted by two persons of different sex or same sex”.
Notwithstanding the previous regime, in 2004 a same-sex couple had actually married, with the support of the mayor of a small town, and had registered the marriage in the registers of the civil status.
The Court of First Instance declared the marriage illegal because sex difference between the spouses was a necessary condition of marriage in France. The Bordeaux Court of Appeal confirmed the decision and the measure was cancelled.
The couple turned to the European Court of Human Rights claiming a violation of Article 8 (Right to respect for private and family life), and Article 14 (Prohibition of discrimination) in connection to Article 12 (Right to marry) ECHR.
Strasbourg however found there was no violation of the ECHR.
In the line argued in Oliari v. Italia, the ECHR stated that a State, according to its cultural and social roots, is not forced to extend the regime of “marriage” to same sex couples, but it is compelled to provide and recognize rights and obligations also to this kind of couples. According to international judges, Article 12 does not include the obligation to provide for marriage for same-sex couples. The decision in Schalk and Kopf v. Austria was also referred to, in which the Court concluded that Article 14, in conjunction with Article 8, could not be understood as requiring the Contracting States the obligation to open marriage to homosexual couples.
Additionally France, also before the recent law No 2013-404 ensuring marriage for all couples, had rules such as PACS that allowed same-sex partners to access to rights and obligations on a similar basis than heterosexual couples. The situation was, therefore, quite different from the Italian one (before the adoption of the recent Cirinnà law) which led Strasbourg to condemn Italy in the Oliari case, because of the lack of any right for same-sex couples.
In consideration of the wide differences in legal systems of the States party to the Convention, the Court confirms that as long as a State provides for a legal regime for same-sex couples, allowing the couples to lawfully live together, benefitting of rights and duties towards each other and towards the State, the lack of a right to “marriage” does not amount to a violation of the Convention.
[article by Valentina Vadacca]