Same-sex relationships, choice of law and the continued recognised relationship theory

Frances Hamilton, Lauren Clayton-Helm

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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 piece 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 are 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 EU level will lead to more consistent results in this sphere.
Original languageEnglish
Pages (from-to)1-32
JournalJournal of International and Comparative Law
Volume3
Issue number1
Publication statusPublished - 2016

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