Same Sex Couples - Comparative Insights on Marriage and Cohabitation
Estefanía Vela Barba, Başak Başoğlu, Ayelet Blecher-Prigat, Toni Holness, Natalia Ramírez-Bustamante, Macarena Sáez, José María
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Until the end of the twentieth century marriage was the only union considered legitimate to form a family. Today more than 40 countries have granted rights to same sex couples, including at least 19 that have included same-sex marriage within their family law systems.1 Every day there is a new bill being discussed or a new claim being brought to court seeking formal recognition of same-sex couples or of families formed by individuals of the same sex.
This worldwide trend is creating new rights for individuals of diverse sexual orientations and gender identities. In countries where marriage has been granted to same-sex couples, a whole new set of rules has emerged. Immigration regulations, tax statutes, inheritance rights, adoption, surrogacy, and presumption of paternity favoring the husband are some of the areas that have been deeply changed by same-sex marriage. These legal changes have benefited thousands of gays and lesbians who now have access to rights and benefits traditionally exclusive to the heterosexual married family.
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forms of marriage, the age at which it may be entered into and the required capacity therefore, the rights and duties of the spouses, the grounds for separation and dissolution, and the consequences thereof. There is no definition of marriage in the CE and it does not mention its elements. 27 Rather, it establishes the right to marry and involves an institutional guarantee following Article 53.1 CE: “the rights and liberties recognized in Chapter Two of the present Title are binding for all
(available at http://rgd.legalaffairs.gov.tt/laws2/alphabetical_list/lawspdfs/45.02.pdf). 72. Parliamentary Legislative Session, Jun. 12, 2008 (Trinidad and Tobago) (available at http://www.ttparliament.org/hansards/hh19980612.pdf). 73. Property (Rights of Spouse) Act, 2006 (Jamaica) (available at http://www.moj.gov.jm/sites/default/files/laws/Property%20%28Rights%20of%20Spouse%29%20Act.pdf). 74. Sexual Offences Act, 1986, Cap 11:28 (Trinidad and Tobago)
como cónyuge a otra persona del mismo sexo y de optar entre el matrimonio y una unión libre (análisis crítico de la constitucionalidad del matrimonio homosexual y del llamado divorcio express). In La reforma del matrimonio (Leyes 13 y 15/2005), ed. J.V. Gavidia Sánchez. Madrid: Marcial Pons. 19. Gavidia Sánchez, J.V. 2001. Uniones homosexuales y concepto constitucional de matrimonio. Revista Española de Derecho Constitucional 61: 11–58. 20. Gomes Canotilho, J.J., and V. Moreira. 2007.
Appeal against constitutionality nr. 6864-2005, relative to Act 13/2005, of 1st July, amending the Civil Code with regards to the right to marry. Accepted for consideration by decision of the TC of 25th October 2005. Boletín Oficial del Estado (BOE) N. 273 of 25th November 2005, pp. 37313–37313. 4 Report of the Council of State n. 2628/2004, of 16th December 2004, available at http://www.boe.es/buscar/doc.php?id=CE-D-2004-2628. The Council of the State is an advisory body which main duty
diferente>: Sobre a inconstitucionalidade das normas expressas pelos artigos 1577°, e 1628°, alínea e), do Código Civil, op.cit. p. 59. However, DUARTE SANTOS, even admitting the power of such symbolism, gave more weight to the idea of marriage as potentially procreative, see SANTOS, D.: Mudam-se os tempos, mudam-se os casamentos? O casamento entre pessoas do mesmo sexo e o Direito português, op.cit. p. 326 and 328 and ff. 105For a summary of the political debate and initiatives in Portugal, see