20 Sep Recognition of same-sex unions

In the case of Buhuceanu and Others v. Romania (applications nos. 20081/19 and 20 others, 23.05.2023) the European Court of Human Rights held, by 5 votes to 2, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

The applicants are all same-sex couples. The case concerned access to legal recognition for the applicants’ relationships. 

The Court reiterated that the member States were required to provide a legal framework allowing adequate recognition and protection of the relationship of same-sex couples. It referred in this connection to its Grand Chamber judgment Fedotova and Others v. Russia (nos. 40792/10 and 2 others) and the clear ongoing trend within the member States. States had some discretion (“margin of appreciation”) as regards the form of the recognition and the type of protection granted. Pursuant to Romanian law, only one form of family union – an opposite-sex marriage – was legally recognised. Several attempts to change this legal situation had failed in the Romanian Parliament, and the Government had given no indication of their intention to widen access to legal protections for other relationships, stating that the “prevailing interest” was in not giving such unions protection under Article 8, in stark contrast to the situation in a large number of other Convention States. 

The applicants, like other couples in their situation, were unable to access numerous social and civil rights available under the law to married couples, and to regulate areas such as property, maintenance and inheritance within the couple. The Court noted the Government’s argument that these rights could be replicated by private contractual arrangements, but held that the argument lacked detail, and in any case had already been rejected in the Court’s case-law. 

Furthermore, the Court stated that negative attitudes on the part of the heterosexual majority could not override the applicants’ interests in having their relationships recognised, and that allowing recognition of same-sex unions would not harm the institution of marriage, as opposite-sex couples could still marry. Overall, none of the arguments put forward by the Government to justify the restriction on legal unions to heterosexual marriage could outweigh the applicants’ interest in having their relationships recognised. There had therefore been a violation of Article 8 of the Convention.

Reference from the official website of the European Court of Human Rights