Johanna Westeson - The ICHRP

prevailed as a matter of fact in the past between J and A.” A shared Residence Order was
granted.
5. Concluding remarks
There is a tendency in the region to recognize other kinds of family units than the
traditional institution of a marriage consisting of a man and a woman. Different countries
have opted for different solutions. Going beyond traditional marriage can mean several
different things. It can mean extending rights to same-sex couples, including opening up
marriage to same-sex couples, or it can mean extending family rights to unmarried couples,
whether of the same or the opposite sex. One model balanced between same-sex marriage
and equal rights to cohabitants is registered partnership – recognizing a union between two
persons of the same or opposite sex and attaching significant rights to this union, but
making it a model clearly separate from that of marriage.
The Dutch case is worth paying attention to. While the Netherlands also recognizes samesex
marriage, it is important to note that its regime for cohabitation virtually puts
cohabitants on equal footing with married couples. This provides couples, whether samesex
or opposite-sex, with a real choice regarding how to regulate their co-living. It also
signifies that all persons living in a couple are granted the same level of state protection
and have the same rights and obligations, which is an important expression of nondiscrimination.
Another interesting case is the Swedish model that allows for same-sex marriage. In
practice the Swedish regime will not have different effects than its Spanish or Dutch
equivalents. However, the Swedish choice to remove references to gender altogether is
symbolically relevant. Instead of tagging along same-sex couples to the traditional concept
of marriage, that is, between a man and a woman, the Swedish legislature chose to redefine
marriage as a concept (“those two who marry each other will be spouses”). Sweden
became the first country in Europe to present a definition of marriage that does not build
on the old, opposite-sex institution, but in a subtle sense tries to redefine it altogether.
With regard to the EU regulations, these still do not unconditionally establish that
registered partners and de facto couples be included in the family concept. However, the
provisions referred to constitute an important step forward, from a non-discrimination
point of view. EU law has slowly started to recognize that, within certain limits, rights
historically only awarded to spouses now shall extend to partners living in other
constellations than traditional marriage, thus illustrating a gradual recognition of a wider
family concept. Non-discrimination for (same-sex and opposite-sex) unmarried couples is
crucial for their well being. Also, practically, partners’ possibility to live together as a
family is critical to their psychological and emotional health. This recognition of same-sex
and unmarried partners’ rights may also constitute a first step toward the inclusion of this
group in health and social security benefits, still not recognized by Union law.
The Hungarian, Israeli, and Slovenian cases focus on the practical effects of discrimination
between opposite-sex and same-sex couples, regardless of label of the relationship. As
pointed out by the Israeli Supreme Court, the purpose of provisions on certain types of
benefits is not to strengthen the institution of marriage. Their purpose is to facilitate life in
companionship in a myriad of ways, many of which have direct relevance for sexual
health. Nothing distinguishes such companionship if the partners are of the same or of the
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