Same sex marriages in Slovakia
Presently, Slovakian legislation does not provide a legal framework to allow same-sex (LGBT) couples to formally and legally have their relationships recognised in any form, marriage or registered partnership.
As family lawyers we can arrange some form of legal actions and documents stipulating the rights of partners using existing frameworks and European judgments.
European Court Judgment
The European Court found in its judgment of Schalk and Kopf v. Austria, that “same-sex couples are just as capable as different-sex couples of entering into stable committed relationships”. The Court also held that same-sex couples are “in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship”, and have “the same needs in terms of mutual support and assistance as different-sex couples”.
The ECtHR held that “a difference in treatment is discriminatory under Article 14 if it has no objective and reasonable justification”, in other words if it does not pursue a “legitimate aim” or if there is no “reasonable relationship of proportionality between the means employed and the aim to be realised”. Thus in the case of Taddeucci and McCall v. Italy, concerning Italian authorities’ refusal to grant a residence permit to an unmarried gay couple on family grounds, the Court found that without “any objective and reasonable justification the Italian State failed to treat heterosexual couples differently and take account of their ability to obtain legal recognition of their relationship and thus satisfy the requirements of domestic law for the purposes of granting a residence permit for family reasons, an option that was not available to the applicants.
Oliari and others v. Italy the Court established a positive obligation upon the States to implement a general legal framework regulating same-sex relationships, regardless whether civil unions already exist for different-sex couples. It ruled that the legal protection then available in Italy to same-sex couples failed to provide for the core needs relevant to a couple in a stable committed relationship. Indeed, since December 2013 same-sex couples have had the possibility of entering into “cohabitation agreements”, which were however rather limited in scope. These agreements, however, failed to provide for some basic needs fundamental to the regulation of a stable relationship between a couple, such as mutual material support, maintenance obligations and inheritance rights. Moreover, such agreements were open to any cohabiting persons which meant that they did not primarily aim to protect same-sex couples. Furthermore, they required the couple concerned to be cohabiting, whereas the ECtHR had already accepted that cohabitation was not a prerequisite for the existence of a stable union between partners given that many couples – whether married or in a registered partnership – experienced periods during which they conducted their relationship at long distance, for example for professional reasons.
Ultimately, in the recent Chamber judgment in the case of Fedotova v. Russia, the Court held that the Russian State had violated Article 8 ECHR by failing to provide same-sex couples with the opportunity to have their relationships formally acknowledged in the form of a marriage, or any other form. Three same-sex couples wished to get married in Russia. Their requests were inevitably rejected on the ground that the Russian Family Code (also endorsed by the Russian Constitutional Court) stated that marriage is a “voluntary union between a man and a woman”. They then brought the claim that it was impossible for them to enter marriage and thus obtain legal protection for their relationships. The Court clearly held that, a State that fails to provide the opportunity for same-sex couples to have their same-sex relationships legally acknowledged, violates Article 8. The applicants, as other same-sex couples, were not legally prevented from living together in couples as families. However, they had no means to have their relationship recognized by law. Domestic law provided for only one form of family unions – a different-sex marriage. Without formal acknowledgment, same-sex couples were prevented from accessing housing or financing programs, from visiting their partners in a hospital, deprived of guarantees in criminal proceedings (the right not to be a witness against their partner), and rights to inherit the property of the deceased partner. That situation created a conflict between the social reality of the applicants who lived in committed relationships based on mutual affection, and the law, which failed to protect the most regular of “needs” arising in the context of a same-sex couple. That conflict could result in serious daily obstacles for same-sex couples.