Reform Index Focus: Implementing registered partnerships

Reform Index Focus: Implementing registered partnerships

Photo: ua.depositphotos.com / VadimVasenin
19 April 2023
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The existing laws only cover “conventional” marriages, which prove inadequate in today’s world to legally document various types of relationships where individuals seek to establish a comprehensive set of reciprocal obligations and rights. Consequently, partnerships between individuals with no romantic or sexual links but sharing a household are not covered. Furthermore, same-sex couples do not have any legal avenues to register their mutual rights and responsibilities.

To address these issues, at the close of the 1980s, the global community began to recognize relationships that do not conform to the “conventional” family model. Various countries refer to these unions as registered partnerships, civil unions, common-law marriages, domestic partnerships, or life partnerships. The term “registered partnership” is typically employed in Europe, whereas North America uses “civil union.” The United Kingdom, on the other hand, refers to them as “civil partnerships.”

For reference: Under European law, marriage refers to the official formation of a legal bond between two individuals. It  can be established either civilly (before official authorities and on legal grounds without religious institutions’ involvement), religiously (through registration before a religious authority), or through another method recognized by the applicable national laws. While most countries globally acknowledge civil marriage or legally validate religious marriages, some countries, such as Saudi Arabia, only recognize religious marriages.

Traditionally, marriage has been established between a man and a woman based on cultural, particularly religious, customs, though historical evidence of same-sex marriages from ancient times is also there. However, secularization, which involved separating secular and religious authority, subsequently led to the legal recognition of the union under secular law.

Civil marriage has a universally accepted legal status in all EU member states. While certain EU countries, such as Denmark, Estonia, Greece, Italy, Poland, Slovakia, Spain, and Norway, recognize religious marriage as equal to civil marriage, others, like France, do not acknowledge any marital status consequences stemming from religious marriage.

Apart from statutory marriages, there exist arrangements in which individuals cohabit for a specific period without legalizing their relationship through a civil or religious ceremony – such as the aforementioned civil unions or partnerships. Their acknowledgment by state authorities is governed separately by each country or jurisdiction. The primary distinction between marriage and partnership pertains less to family law and more to partners’ rights in other domains, such as simplified immigration procedures, pension schemes, etc.

Only heterosexual civil marriages are recognized in Ukraine. However, it is possible to prove a de facto marriage, where a heterosexual couple lives together and has a common household without registering their relationship with state authorities. This is done in a court of law because Article 21 of the Family Code of Ukraine states that “living in the same family of a woman and a man without marriage is not a reason for the rights and obligations of spouses to arise in them.”

A civil (registered) partnership is generally understood as a legally recognized relationship between two individuals, whether they are of the same sex or opposite sex and whether they are in a romantic or non-romantic partnership (such as friends, roommates, or acquaintances). This mechanism allows LGBTQ couples to obtain legal recognition and formalization of their relationship, especially in situations where traditional marriage is not an option.

An instance of this is France, where civil partnerships, known as “civil solidarity pacts” (pacte civil de solidarité), have been available since 1999 and have gained popularity among both same-sex and opposite-sex couples (Figure 1). The Netherlands also introduced civil partnerships in 1998, with about 95% of them being between opposite-sex partners in France and 97% in the Netherlands. However, when introduced, 42% of partnerships in France and 65% in the Netherlands were same-sex.

Figure 1. Number of marriages and civil partnerships in France and the Netherlands in 1998-2021

Source: INSEE, CBS

Apart from regulating unions between two people regardless of gender, new forms of relationships are emerging that demand official recognition and legal registration. Consensual non-monogamy is one such challenge, where more than two partners are involved simultaneously. However, there are only a few instances where such relationships have been legally recognized. One example is the recognition of polyamorous domestic partnerships in Somerville, Massachusetts, in 2020, to allow unmarried partners to visit their partners suffering from Covid-19 in the hospital. Other cities in the state have also adopted this practice. Another example is the recognition of a civil union between three persons by a public notary in Brazil in 2012, which met the formal requirements (shared residential address and bank accounts). It is worth noting that such unions do not include polyandry (having more than one husband) or polygyny (having more than one wife), which are permitted under Sharia law in Saudi Arabia but involve a man marrying each woman separately.

There is currently no uniform approach at the international level for regulating partnerships. The extent of rights and obligations can vary from country to country, ranging from being similar to those in official marriages to being limited solely to financial and property matters and status. Typically, partners in a registered partnership have fewer legal protections than those in a marriage, with restrictions often involving the adoption of children (both by third parties and by one of the partners) and sharing of a surname. On the other hand, a civil partnership often expands the possibilities for two adults to inherit or enjoy the joint property and obtain the status of close relatives. Additionally, entering into and dissolving a registered partnership is generally easier than doing the same for a marriage.

Olena Luniova, advocacy manager at ZMINA Human Rights Center:

“This primarily pertains to matters regarding property rights and inheritance, as well as emergency medical interventions when a person is ill. These are essentially the same rights granted to married couples; therefore, the laws on registered partnerships must rectify these inequalities.”

How is it done worldwide?

Denmark was the first country in the world to introduce registered partnerships, starting with same-sex couples in 1989 (see Appendix, Table 1). However, in 2012, Denmark legalized same-sex marriage and abolished the registered partnership system.

Currently, 79 countries and territories recognize same-sex marriages and/or civil partnerships.

Countries of the world can be categorized into four groups based on their stance towards this matter, as shown in Figure 2:

  • In 159 countries and territories, only traditional marriages between women and men are recognized. These are primarily Muslim countries of the Middle East, Africa, Asia, and post-Soviet countries, particularly Ukraine.
  • Civil partnerships and traditional marriages are possible in 14 countries and jurisdictions (e.g., Bermuda).
  • All forms of unions, including heterosexual and same-sex marriages and civil partnerships, can be entered into in 44 countries and jurisdictions.
  • Only marriages for both opposite-sex and same-sex couples are permitted in 19 countries and jurisdictions. Two separate territories of the Kingdom of the Netherlands (Curaçao and Sint Maarten) also recognize same-sex marriages concluded abroad.

Figure 2. Distribution of countries worldwide based on their recognition of marriages and partnerships as of March 2023

Source: ILGA World

The recognition of civil partnerships in Canada, Spain, Mexico, Japan, and the United States is regulated at the local jurisdiction level, while Israel only recognizes same-sex marriages that were conducted abroad.

Europe has the largest share (64%) of countries that have introduced same-sex unions (marriages and civil partnerships), i.e., 35 out of 55 countries. The Americas and Oceania follow with 46% and 33%, respectively. In contrast, only 9% and 4% of the countries in Africa and Asia have introduced such unions.

Figure 3. Share of countries with same-sex unions (marriages and/or civil partnerships) in each world region, %

Source: ILGA World

Several countries that formerly permitted civil partnerships have later opted for legalizing marriage for all couples, regardless of gender, following Denmark’s example. These countries include the Scandinavian nations of Sweden, Finland, and Norway, as well as Germany and Ireland. Certain European countries, such as the United Kingdom, Austria, Belgium, and Spain, have allowed couples to choose between marriage and registered partnerships.

In certain European Union countries such as Bulgaria, Latvia, Lithuania, Poland, and Romania, neither registered partnerships nor same-sex marriages are legally recognized due to their constitutions and codes explicitly defining marriage as a union between a man and a woman. In recent years, Latvia, Lithuania, Slovakia, and Romania made attempts to pass laws on civil partnerships, but none of these efforts were finalized.

Vitaliia Lebid, lawyer, legal counsel at the Center for Strategic Affairs of the Ukrainian Helsinki Human Rights Union:

“In recent years, the European Court of Human Rights has examined several cases from various European countries and found violations of Articles 8 and 14 of the European Convention on Human Rights in countries where the rights of same-sex couples were not protected in any way. For example, violations were found in cases involving Italy, Greece, and Russia. Currently, the Court is reviewing a case presented by lawyers from the Center for Strategic Affairs of the UHHRU, which concerns discrimination against same-sex couples in Ukraine due to the inability to legalize their relationships. The Court is expected to decide on this case soon, and based on the practice of the ECtHR, the Court will likely find Ukraine in violation of appropriate legislative regulation of this issue. The European Convention on Human Rights does not require states to extend the right to marry to same-sex couples. However, the practice of the European Court established that the state is obligated to take measures to legalize the relationships of homosexual couples in any form. This means that the state must provide provisions in its legislation that will allow same-sex couples to have relationships that are recognized and protected by law. The specific form in which this right is guaranteed is at the state’s discretion. Currently, among the 46 member states of the Council of Europe, the majority, or 30 states, have introduced various forms of legalization for same-sex couples, establishing a European consensus on this issue.”

Perception of same-sex partnerships in Ukraine

Over the past decade, the attitude towards the rights of LGBTQ+ people has improved significantly in Ukraine, particularly in terms of legalizing their relationships.

A study conducted by the Center of Social Expertises at the Institute of Sociology of the National Academy of Sciences of Ukraine revealed a significant improvement in attitudes towards the rights of LGBTQ+ individuals in the country, particularly regarding their right to legally register their relationships. The study found that prior to the full-scale invasion of Russia, the share of respondents who were against granting same-sex couples the right to register their relationships decreased from 59% in 2013 to 36% in 2022 (as shown in Figure 4). Conversely, the percentage of respondents who believed such a right should be granted increased from 15% to 27%. The study also found that the younger demographic, aged 18-34, showed the greatest support for expanding LGBTQ+ rights, with the percentage of young people expressing their support increasing from 17% in 2013 to 58% in 2022.

Figure 4. Do you think homosexual couples should have the same right to register their relationship as regular married couples? %

Source: CSEP named after Y. Sayenko 

The KIIS study demonstrated similar findings regarding legalizing same-sex relationships through official registration (Figure 5). The study indicated a rise in the percentage of respondents who support the introduction of registered partnerships for same-sex couples from 5% to 24% between 2016 and 2022. Furthermore, the share of those who oppose such an option declined from 69% to 42% during the same period.

Figure 5. Do you support introducing a registered partnership for same-sex couples, similar to conventional marriage, but without the right to adopt children jointly?

Source: KIIS at the request of the LGBT Human Rights Nash Svit Center

In the most recent study by the National Democratic Institute in January 2023, respondents are more inclined to support LGBTQ+ couples’ right to the civil partnership over their right to marriage (Figure 6). The study found that 56% of respondents favored civil partnerships (completely or rather agree), while 44% supported marriage.

Figure 6. National Democratic Institute’s LGBTQ+ rights survey results in January 2023

Source: National Democratic Institute

As a result, the Ukrainian community has become increasingly accepting of granting LGBTQ couples equal rights and opportunities, despite the presence of citizens who hold extremely radical beliefs. Currently, the terminology used to describe same-sex relationships is of utmost significance, as the concept of “partnership” is more readily embraced by Ukrainians, without the traditional family and religious connotations associated with the term “marriage.” This presents an opportunity to introduce a new institution without necessitating changes to the Ukrainian Constitution.

The introduction of registered partnerships in Ukraine was prompted, in part, by the war, which served as a catalyst for action. One noteworthy example of this was the media attention garnered by Lieda Kosmachova, who expressed her desire to marry a close gay friend in order to address any legal issues that might arise in the event of his death or disappearance (her friend has been in a committed relationship with his partner for over 15 years and has no other close relatives). 

Volodymyr Yavorskyi, an expert at the Center for Civil Liberties:

“The war has spurred a growing necessity for legislative change due to the lack of rights granted to those who are enlisted and their family members who live with them. For instance, if a person is injured, missing, captured, or killed, their partner is not entitled to any information about their status. Additionally, they are denied access to hospitals and often encounter difficulties with inheriting property. Even if the partners have cohabitated for two decades, the state does not acknowledge them as part of the family. Hence, the need for legislative reform is crucial to safeguard the rights of thousands of individuals who endure ongoing discrimination.”

Legislative initiatives regarding registered partnerships

Adopting the National Human Rights Strategy in 2015 marked the initial stage of progress in this domain. The government devised an Action Plan to implement the strategy, including creating the proposed law. This law aimed to legalize civil partnerships for both heterosexual and same-sex couples in Ukraine, with provisions for property and non-property rights such as inheritance, property ownership, partner maintenance in case of incapacity, and the right to refuse to testify against a partner. The proposed law’s completion deadline was set for the second quarter of 2017. However, the Ministry of Justice officially declared in 2018 that the preparation of the relevant legal instrument was “untimely” because “the issue requires further study and elaboration.” The truth is that the resistance came from local self-government bodies, the public, and religious organizations advocating “traditional family values.”

During that period, various draft laws on civil partnerships were created, such as MP Kateryna Lukyanova’s “On Civil Partnership” in collaboration with the Leviathan analytical group and various versions of family partnership draft laws by the LGBT Human Rights Nash Svit Center. The Ukrainian Helsinki Human Rights Union also worked with public and human rights organizations to develop the law’s concept. Despite these efforts, none of these proposals were registered in the Verkhovna Rada.

There exist two algorithms to incorporate civil (registered) partnerships into legislation, namely the “exceptions model” and the “list model.” The “exceptions model” involves enshrining in law that registered partners have identical rights and responsibilities to those of married partners, except for explicitly defined exceptions. On the other hand, the “list model” consists of a comprehensive list of rights and obligations that apply to partners in a registered partnership. 

During the summer of 2022, the matter of registered partnerships was reignited. Anastasiia Sovenko’s petition for the legalization of same-sex marriage garnered the requisite 25,000 signatures and was reviewed by the President of Ukraine. Volodymyr Zelensky announced that the government was “exploring ways to legalize civil partnerships in Ukraine while also ensuring the approval and protection of human rights and freedoms.”

In early 2023, Sviatoslav Sheremet, an expert on LGBTQ issues, revealed that the Ministry of Justice had commenced drafting a law on civil partnerships and aimed to finalize it by December of the same year. He added that the proposal was based on the concept devised by public organizations.

Valeriia Kolomiets, the Deputy Minister of Justice for European Integration, confirmed the government’s drafting of the civil partnership law in early March. While the text of the proposed piece of legislation has not been released, she disclosed that the concept would establish a registered civil partnership only for same-sex couples, set out a comprehensive list of their rights and obligations, and regulate the partnership agreement. Additionally, marriages between Ukrainian citizens of the same sex that took place overseas would be equivalent to a registered partnership in Ukraine. The Verkhovna Rada’s legislative agenda for 2023 includes considering this proposal (task No. 297) in the 4th quarter.

On March 13, 2023, the Verkhovna Rada officially registered MP Inna Sovsun’s alternative draft law No. 9103, submitted on March 7. As the text of this proposal is now available, we can examine what it offers to Ukrainians.

What is the bill about?

The “Institute of Registered Partnerships” draft law comprises five chapters. It outlines the legal position, privileges, and responsibilities of partners, the legal status of their assets, social safety, inheritance, and privileges in the event of their death or disappearance, and specifically addresses the registration and dissolution of the registered partnership.

Unlike the Ministry of Justice’s proposal, this version defines registered partnerships as a family union between two adult individuals of the same or opposite sex. Therefore, this regulation will also apply to couples consisting of a man and a woman who, for some reason, did not enter into an official marriage. Moreover, they are not required to cohabit.

Registered partnership terms:

  • each partner must have reached the age of majority (18 years), regardless of their gender;
  • on the day of registration, neither person can be married or in another registered partnership;
  • partners who are relatives (including parents and children, grandparents and grandchildren, full and half-siblings, cousins, aunts, uncles, nephews, and nieces) are not eligible for registered partnership;
  • a registered partnership between an adopter and an adopted child is prohibited unless the court cancels this status. Similarly, a registered partnership between a natural and adopted child of the same person or between adopted children of the same person can only be established with the court’s permission.

As per the proposed legislation, the partnership registration process will commence within ten days of the application submission to the civil registration office, which can be facilitated through the Diia app. It is important to note that the registered partnership is not equivalent to marriage and does not restrict the possibility of marriage. If the registered partners of different genders choose to marry each other, the partnership will automatically come to an end. However, it is imperative to terminate the registered partnership before a member can marry someone else who is not part of the partnership.

The registered partnership will bestow upon the partners the status of close relatives and provide them with various rights and social guarantees, such as the right to identify the body in case of death, family leave, pension, social assistance, and more, particularly in the event of the death of one of the partners during military service. To further regulate their partnership’s rights and obligations, the partners can enter into a contract similar to a marriage contract. If such a contract is absent, the property acquired during the registered partnership will be considered joint property.

The termination of a registered partnership can occur in several ways: through the death of one of the partners, by a joint statement of both partners or by the statement of one of the partners, or by a court decision. Unlike marriage, there are no provisions for reconciliation or an inquiry into the reasons for the dissolution of the partnership.

The draft law does not address partners’ rights concerning the adoption or guardianship of children, nor does it cover their rights in administrative, criminal, or tax matters. 

Registered partnerships between two individuals that were established outside of Ukraine will be acknowledged. Additionally, marriages between same-sex couples that were entered into outside of Ukraine will be considered equivalent to registered partnerships within Ukraine.

Experts generally have a positive evaluation of both the idea behind the draft law, as it is long overdue, and the text of the law itself. 

Vitaliia Lebid, lawyer, legal counsel at the Center for Strategic Affairs of the UHHRU:

“The first impression of this draft law is very positive: it’s clear and logical. At the moment, it’s difficult to talk about any obvious shortcomings or risks. However, as the bill is still under consideration before its second reading, possible inconsistencies will be carefully weighed and analyzed, and appropriate changes or additions will be made if needed. Given that this draft law affects a wide range of rights, it’s crucial that corresponding changes be made to all existing laws related to its scope.”

At the same time, questions remain regarding specific provisions, such as the feasibility of registered partnerships for opposite-sex couples.

Olena Luniova, advocacy director at ZMINA Human Rights Center:

“There’s a fundamental question regarding the relationship between the institution of registered partnerships and the institution of marriage. The draft law’s current version allows registered partnerships between partners of different sexes, not just same-sex partners. However, the question remains as to what advantage civil partnerships offer to heterosexual partners. These matters can be discussed in the committee.”

Reaction to the draft law

The release of the draft law has sparked a significant debate in Ukraine. Some conservative social groups are vehemently opposed to the idea of a registered partnership, while others on social media argue that such changes are not yet necessary. The All-Ukrainian Council of Churches and Religious Organizations has even released a statement calling for rejecting draft law No. 9103. On March 13, a petition was also circulated online, urging the President of Ukraine to veto the draft law on civil partnerships that would allow same-sex marriage registration, despite the draft law not including same-sex marriage provisions.

 On the other hand, various public organizations and human rights centers are showing support for the bill’s registration in the VRU. They have even created a petition in its favor, which was made public on March 28, 2023.

Olena Luniova, advocacy director at ZMINA Human Rights Center:

“Adopting the law on registered partnerships would remove discriminatory provisions from our legislation, representing a crucial step towards becoming a more civilized country. Discriminating against an entire population group based solely on their sexual orientation cannot be acceptable in a progressive European nation. Therefore, passing this draft law and establishing registered partnerships alongside other recognized institutions in Ukraine is a positive step that we fully endorse. Those seeking a civil partnership should not have to answer to religious institutions. It would be inappropriate for parliamentarians to reject the law based solely on the Council of Churches’ position. In a legal and democratic country like we’re all fighting for, such discussions should not even be entertained.”

Appendix

Table 1. Registered partnerships and same-sex marriages in Europe

No Country Level of rights in registered partnerships The year of introduction of the registered partnership The year of introduction of the same-sex marriages
1 Andorra Limited rights since 2005. The same applies to marriage since 2014 2005-2022 2023
2 Austria Similarly to marriage 2010 (for same-sex couples only) 2019
3 Belgium A defined list of rights 2000 2003
4 United Kingdom Similarly to marriage 2005 (for same-sex couples only), 2019 (for heterosexual couples) 2014
5 Denmark A defined list of rights 1989-2012 (for same-sex couples only) 2012 
6 Greece Similarly to marriage 2008 (for heterosexual couples), 2015 (for same-sex couples)  
7 Estonia Limited rights 2016  
8 Ireland Similarly to marriage 2011-2015  2015 
9 Spain Similarly to marriage 1998 (at the level of individual local jurisdictions) 2005 
10 Italy Similarly to marriage 2016  
11 Cyprus Similarly to marriage 2015  
12 Liechtenstein Similarly to marriage 2011  
13 Luxembourg Similarly to marriage 2004 2015 
14 Malta Similarly to marriage 2014 2017 
15 Monaco Limited rights 2020
16 Germany A defined list of rights 2001-2017  2017 
17 Netherlands Similarly to marriage 1998 2001 
18 Norway A defined list of rights 1993-2008  2009 
19 Portugal Similarly to marriage (relationship registration is not required) 1999 (for heterosexual couples), 2001 (for same-sex couples) 2010 
20 San Marino Limited rights 2019  
21 Slovenia Similarly to marriage 2006 (only in terms of property rights), 2017 (extended rights) 2022 
22 Hungary Similarly to marriage, with some exceptions 2009  
23 Finland Similarly to marriage 2002-2017  (for same-sex couples only) 2017 
24 France Limited rights 1999 2013 
25 Croatia Similarly to marriage 2014 (same-sex couples only)  
26 Czech Republic Limited rights 2006 (for same-sex couples only)  
27 Montenegro Limited rights 2021 (for same-sex couples only)  
28 Sweden A defined list of rights 1995-2009  (for same-sex couples only) 2009 
29 Switzerland Similarly to marriage 2007-2022 (for same-sex couples only) 2022 

Source: rivniprava.com, rainbow-europe.org, Human Research Watch, country authorities’ websites

When a specific timeframe is provided, it implies that entering into a registered partnership is no longer possible because marriage is now permitted.

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