Posted: 28/03/2024
On 29 March 2024, it will be the 10-year anniversary of the first same-sex marriage ceremony in England. It is sometimes easy to forget that up until 1967 homosexuality was illegal in this country. Interestingly, it was never illegal to be lesbian, perhaps one of the few ways women were historically overlooked by law makers which had an inadvertently positive effect!
It may come as a shock to some same-sex couples who move abroad that their relationship might not be recognised, or they may even be treated differently than a heterosexual couple in their new home country if their relationship or marriage ends.
In England, there are a myriad of financial claims arising from the breakdown of a marriage or civil partnership, and these rights could be lost if you move abroad.
In contrast, cohabiting couples in England still face limited financial protection on separation despite calls for reform. Our International Family Law Report: The Cohabitation Conundrum summarises the legal remedies for cohabiting couples on the breakdown of their relationship in England and across the international legal landscape. One upside is that there is at least no discrimination between same and opposite-sex couples in England; everyone is equally exposed financially on the breakdown of a cohabiting relationship. A pyrrhic victory perhaps.
If you are in a same-sex couple (whether cohabiting, married, or in a civil partnership) and intending to move abroad, it is absolutely worth taking advice on the legal status of same-sex relationships before you progress with a relocation plan, especially if you have children. In some countries where same-sex unions are not recognised, there could be serious repercussions for one party if you separate or divorce in that country.
This article offers a whistle-stop tour of the current legal status of same-sex relationships around the world.
One of the more liberal continents, there are 21 countries in Europe which have legalised same-sex marriage, including Greece, Malta, Switzerland, Germany, France and the Scandinavian countries. 10 countries, including Italy, Monaco, and Croatia, permit a civil union between same-sex partners, but do not recognise same-sex marriage. Furthermore, in Monaco and Italy (amongst other European countries) adoption for same-sex couples is not permitted.
In the countries where same-sex marriage or civil partnership is legal, the rights (or lack thereof) of cohabiting same-sex couples mirrors that of heterosexual cohabiting couples to protect against discrimination on the grounds of sexuality.
There are some countries in Europe where same-sex unions are not recognised at all, including Poland, Ukraine, and Russia. This can be particularly problematic if you and your partner have children together, either through surrogacy or adoption, and your legal status as a parent may not be recognised. In Russia in particular, the rights of LGBTQ+ couples are restricted and there is limited protection against discrimination.
The European Court of Human Rights (ECHR) has waded in to try and tackle inequality across Europe when it comes to the recognition of same-sex relationships, and ruled that contracting members of the Council of Europe should be providing legal recognition to all same-sex couples, albeit they are not required to legalise same-sex marriage in their own country.
In December 2023, Poland was found by the ECHR to be in violation of Article 8, the right to respect for private and family life, by failing to legalise same-sex unions and for subjecting them to disadvantage in the fields of taxation, social rights, and family law. It is hoped this landmark ruling will bring further change across Europe, although Russia was also found to be in violation of Article 8 for failing to provide any legal recognition to same-sex couples back in 2021, and, if anything, this ruling led to a further clamp down and the expansion of the ‘gay propaganda’ law in 2022.
In theory, all EU member states should recognise same-sex marriages and parenthood if they were established in a contracting state and one party is an EU citizen, to ensure that all couples are treated in the same way and can enjoy the Free Movement Directive. However, in practice, the law is unclear and there have been consistent member state violations.
Same-sex marriage was legalised in all US states in 2015 and same-sex couples can enjoy the same rights as opposite-sex married couples. Civil unions/domestic or registered partnerships are also an option in some states; however, a couple who have entered into a civil partnership in England may face difficulties in the US. For example, the US will not grant a spousal visa on the basis of a civil partnership.
The law varies across the different states, but in general, the US provides almost no financial protection for heterosexual cohabiting couples, and the same limitations apply to same-sex couples.
Canada was an early adopter of marriage equality and legalised same-sex marriage in 2005. At the forefront again, Canada also has one of the more favourable approaches to cohabitation. Each province regulates its own laws, but there is a concept of common law spouses and the ability to bring financial claims against a former partner, including for spousal support. In Ontario for example, a couple only has to prove that they have lived together continuously for three years, or have a child together and a relationship of some permanence. Canada also has case law which specifically declares that same-sex cohabiting couples must have the same rights as heterosexual cohabiting couples.
Same-sex marriage is legal in the majority of South American countries, and foreign marriages or civil partnerships should be recognised in these, but you may need to obtain some additional documentation.
Cohabitation is common in South America, and is even on the rise. In the majority of countries, there is no distinction between same-sex or heterosexual cohabiting couples. Brazil introduced helpful legislation for unmarried couples which covers everyone, regardless of whether you are gay or straight. Same-sex cohabiting couples who can evidence an enduring relationship are able to make claims to share in property or assets acquired during the relationship.
In most of the Caribbean islands, homosexual acts are illegal via laws which originate from the colonial era. While the laws are not enforced on all the islands, they have not been officially repealed yet. Same-sex marriages and relationships will not be legally recognised in most Caribbean countries, with some exceptions, including Cuba and Puerto Rico.
The majority of African countries have laws which criminalise same-sex relationships, another hangover from Western laws and colonialisation. There are currently 23 African countries where same-sex relationships are legal, Mauritius and Botswana most recently decriminalised same-sex relationships, and there are ongoing protests calling for the protection of LGBTQ+ rights in other African countries. There remain 31 countries where same-sex unions are a criminal offence, and in Nigeria, Mauritania, Somalia, and South Sudan it is a crime that is punishable by death.
South Africa is the only African country where gay marriage is legal (being the fifth country in the world to pass this law in 2006). Namibia has recently ruled that foreign same-sex marriages must be recognised as if they were opposite-sex marriages.
Most African countries do not recognise cohabiting relationships of any kind (same-sex or opposite-sex) and there are limited rights arising on a separation. Interestingly, in South Africa, cohabitation is not legally recognised regardless of whether you are a same or opposite-sex couple, and there is no automatic financial protection; however, there is a legal lacuna which gives same-sex couples a financial lead over opposite-sex couples.
Before same sex marriage was legalised, a law was passed giving same-sex couples the right to inherit under the intestate rules from a surviving partner as long as certain criteria are met. Heterosexual unmarried couples cannot benefit from this law.
LGBTQ+ rights in the Middle East are restricted, and homosexuality is illegal in several countries including the UAE and Qatar. Same-sex relationships are legal in countries such as Bahrain, Jordan and Turkey.
Gay marriage is not legal in any Middle Eastern country, although Cyprus permits civil partnerships. Israel is the only country that will legally recognise a foreign civil union or same-sex marriage.
Cohabitation between heterosexual couples does not form part of Middle Eastern culture historically, although this is changing: it was recently decriminalised in the UAE. However, most countries do not permit or recognise cohabiting same-sex couples. Israel is the notable exception again and, whilst a legal union is not permitted in the country itself, there is a principle of common law marriage which applies to both opposite and same-sex couples and gives them rights almost akin to a married couple.
Taiwan was, until moments before this article was published, the only Asian country which permits and recognises same-sex marriage, however Thailand has now joined their ranks. There is also notable support across other Asian countries, particularly Japan and Vietnam, for changes to the laws.
The approach to cohabiting same-sex couples varies. In some countries it is not permitted, but in most it is allowed – however, the union has no legal status or rights arising from it. Japan specially denies cohabiting same-sex couples the same rights on separation that are given to heterosexual cohabiting couples. Heterosexual cohabiting couples are in some cases able to bring claims similar to those arising on the breakdown of a marriage for division of property, but a same-sex couple cannot.
Same-sex marriage is legal in both Australia and New Zealand, as is adoption for rainbow families. Both countries will recognise foreign same-sex marriages or civil partnerships.
Australia and New Zealand both have a concept of ‘de facto relationships’ for cohabiting couples, and the laws apply equally to same or opposite-sex couples. De facto relationships can give rise to financial and children claims similar to those available to married couples, making Australia and New Zealand two of the more favourable countries for cohabitees.
Hopefully you don’t have jet lag after that quick trip around the world! The key takeaway is that recognition of same-sex relationships, civil partnerships or marriages abroad is not a simple matter. It is always advisable to seek advice before making the decision to relocate.
Penningtons Manches Cooper has a group of lawyers specialising in modern families and advising couples in same-sex relationships. We have a strong network of family lawyers across the world who we work closely with. The team can advise you on your relocation plans and how your rights, both financially and in respect of any children of the family, may be affected. It is vital that you take advice at an early stage, ideally before putting down roots which may anchor you to a new jurisdiction, to enable you to make an informed choice and understand your rights both in England, and in the country you may soon be calling home.
This article provides a summary overview. International family law is complex and legal advice must be sought regarding a specific jurisdiction.
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