Tuesday, 7 January 2014

Orlandi and Others v Italy - newly communicated case

The European Court of Human Rights has communicated the case of Orlandi and Others v Italy in which six same-sex couples complain about their inability to have their marriage recognised in Italy.

The six same-sex couples were all married whilst abroad (in Canada, the United States, and the Netherlands) and complain about the refusal of the Italian 
domestic authorities to recognise their marriage. 

Italy does not provide any recognition of same-sex relationships, either by way of civil partnership or marriage.

Complaint to the Court

All of the applicants complain that they are being discriminated against, in the enjoyment of their rights protected by the Convention, on the basis of their sexual orientation.

They complain, specifically, about the authorities’ refusal to register their marriage contracted abroad and more generally about the impossibility of obtaining recognition of their relationship in Italy.

They invoke Articles 8, 12 and 14.

Questions to the Parties

The Court has issued the following questions:
  1. Was the interference with the applicants’ right to respect for their private and family life, namely the refusal to register their marriage contracted abroad, in accordance with the law and necessary in terms of Article 8 § 2?
  2. Has there been a violation of the applicants’ right to respect for their private and family life contrary to Article 8 of the Convention, in particular in so far as they had no other possibility to have their relationship recognised by law?
  3. In what specific ways are the applicants disadvantaged by the lack of any legal recognition of their relationship?
  4. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of their sexual orientation, contrary to Article 14 of the Convention read in conjunction with Article 8 and/or 12 of the Convention, in respect of their inability to (i) register their marriage and (ii) enter into any other type of civil union recognising their relationship in Italy?
The same situation is about to end in England and Wales

In Wilkinson v Kitzinger (2006) Sue Wilkinson and Celia Kitzinger, a same-sex couple who had legally married in Canada, complained that on their return to the UK their marriage was not recognized as valid and, under provisions contained in S.215 of the Civil Partnership Act 2004, was treated as a 'civil partnership' (a status not available to the applicants in Orlandi and Others v Italy). In his consideration of the complaint in respect of the Convention, and in particular Article 12, the President of the Family Division of the High Court said: 'to accord a same-sex relationship the title and status of marriage would be to fly in the face of the Convention'.

Thankfully, 8 years later, S.10 of the Marriage (Same Sex Couples) Act 2013 makes provision for same-sex marriages contracted outside of the United Kingdom to be recognised in England and Wales. 

Same-sex couples married abroad, like Sue Wilkinson and Celia Kitzinger, will be the first same-sex couples to be legally recognised as married in England and Wales when (if as announced) the relevant parts of the 2013 Act are commenced on Thursday 13 March 2014.


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