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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polygamous marriages in different countries. Second, marriage was once the only source of family relations and its main function was procreation. Now, Article 39 CE protects the family regardless of the existence of a marriage bond and infertility is no longer a ground for annulment. Moreover, gender neutral marriages already exist in other jurisdictions. Asúa González holds that the lack of a precise definition of “marriage” in the Spanish Civil Law is the result, in part, of the deliberate
paradigm, this could not to be construed in a way that impeded recognition of same-sex marriage. It is an undeniable fact that in previous times –not too long ago–, homosexual persons remained hidden, didn’t show themselves as such, given the social disapproval of them; this condition until recently was even considered a “pathology” […] [For this reason,] evidently, in such documents –the Federal Constitution and international treaties–, their existence wasn’t even conceivable or recognizable,
to the role marriage played in the life of each person, instead of the role marriage played in the structure of society. Heterosexuality was not, therefore, essential to marriage and neither was procreation. What prevailed was the right of individuals to make decisions regarding their life plans. Even the 2012 decision of the Colombian Constitutional Court reached this conclusion, even though this decision did not make same-sex marriage available in Colombia. Chapter 5 explains the development of
decisions backing a range of family formations that exceed the traditional nuclear family; on the other, a push for marriage in the terms of the traditional biparental unit for LGBTI couples. Another way of understanding this tension is by understanding each side’s commitments. The first side is grounded in a pragmatic understanding of the family based on the actual practice of families. Conversely, the second side takes a traditional approach to the concept of family as a legally determined,
http://www.eltiempo.com/gente/ARTICULO-WEB-NEW_NOTA_INTERIOR-10913132.html accessed July 21st, 2012; “Iglesia y academia chocan sobre la adopción de parejas gay” Semana, April 26th, 2012 In: http://www.semana.com/nacion/iglesia-academia-chocan-sobre-adopcion-parejas-gay/176188-3.aspx, accessed July 21st, 2012. 62Colombia, Constitutional Court, Decision T-276/2012. 63“Homosexual recupera a sus hijos adoptados” El Tiempo, December 13th, 2011,