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SAME-SEX RELATIONSHIPS, CHOICE OF LAW AND THE CONTINUED RECOGNISED RELATIONSHIP THEORY

SAME-SEX RELATIONSHIPS, CHOICE OF LAW AND THE CONTINUED RECOGNISED RELATIONSHIP THEORY

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Abstract: A clear choice of law rule should be applied to all same-sex relationships in terms of essential validity. Interest analysis allows us to look at the public policy reasons behind why a choice of law rule may be appropriate or inapposite. This technique can lead to unpredictable results. When coupled with depecage, a delineated splitting of competing policy inculcations, this allows for a more certain rules-based system. Each incapacity to marry should have its own appropriate choice of law rule. This article argues that additional public policy reasons apply to the choice of law appropriate to same-sex relationships. These include citizenship, equality and symbolism, and together require a more extended choice of law rule. It is recommended that a new theory, the continued recognised relationship theory, is suitable for same-sex relationships. This choice of law rule would apply the law where the couple is intending to live, or the law of the country where they have lived, if their relationship has been subsisting for a reasonable period of time. This article advocates that action at the European Union level will lead to more consistent results in this sphere.

Keywords: same-sex relationships; choice of law; interest analysis; depecage; European Union

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Author's other articles in JICL
DIFFERING TREATMENT OF SAME SEX COUPLES BY EUROPEAN UNION LAW AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS: THE EUROPEAN UNION CONCEPT OF CITIZENSHIP
VOLUME JUNE 2015
SAME-SEX RELATIONSHIPS, CHOICE OF LAW AND THE CONTINUED RECOGNISED RELATIONSHIP THEORY
VOLUME JUNE 2016
OUT WITH THE OLD AND IN WITH THE NEW: BRINGING THE LAW OF DOMICILE INTO THE TWENTY-FIRST CENTURY
VOLUME JUNE 2020

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