# Same-Sex Families and Legal Recognition in Europe

Marie Digoix

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Marie Digoix *Editor*

Same-Sex
Families and Legal
Recognition in
Europe

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Springer Open
European Studies of Population

Volume 24

**Series Editors**

Elwood D. Carlson, Ctr Demography & Population Health, Florida State
University, Tallahassee, USA

Stuart Gietel-Basten, Division of Social Science, Hong Kong University of
Science and Technology, Kowloon, Hong Kong
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Same-Sex Families
and Legal Recognition
in Europe

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Springer Open
Editor

Marie Digoix

French Institute for Demographic Studies (INED)

Paris, France

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ISSN 1381-3579

European Studies of Population

ISBN 978-3-030-37053-4

ISBN 978-3-030-37054-1 (eBook)

https://doi.org/10.1007/978-3-030-37054-1

© The Editor(s) (if applicable) and The Author(s) 2020. This book is an open access publication.

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# Contents

1 **Introduction – LGBT Questions and the Family**.................................................. 1
Marie Digoix

2 **What First, What Later? Patterns in the Legal Recognition of Same-Sex Partners in European Countries**.................................................. 11
Kees Waaldijk

3 **Same-Sex Couples and Their Legalization in Europe: Laws and Numbers**.................................................. 45
Clara Cortina and Patrick Festy

4 **Same-Sex Parents Negotiating the Law in Italy: Between Claims of Recognition and Practices of Exclusion**.................................................. 73
Marina Franchi and Giulia Selmi

5 **Same-Sex Families Challenging Norms and the Law in France**.................. 95
Matthias Thibeaud

6 **LGBT Desires in Family Land: Parenting in Iceland, from Social Acceptance to Social Pressure**.................................................. 117
Marie Digoix

7 **Postface. After Legal Recognition**.................................................. 155
Wilfried Rault

**Index**.................................................................................. 175
Contributors

**Clara Cortina** Universitat Pompeu Fabra, Barcelona, Spain

**Marie Digoix** French Institute for Demographic Studies (INED), Paris, France

**Patrick Festy** French Institute for Demographic Studies (INED), Paris, France

**Marina Franchi** London School of Economics, London, UK

**Wilfried Rault** French Institute for Demographic Studies (INED), Paris, France

**Giulia Selmi** University of Verona, Verona, Italy

**Matthias Thibeaud** French Institute for Demographic Studies (INED), Paris, France

**Kees Waaldijk** Leiden University, Leiden, The Netherlands
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Check for
updates

# Chapter 1
## Introduction – LGBT Questions and the Family

Marie Digoix

**Abstract** The past decades have seen significant changes in the way non hetero-sexual sexualities are regulated in European countries. In a moment of ongoing transitions, the interdisciplinary research presented focuses on aspects related to homosexuals rights and the way LGBT individuals deal and perceive the impact that the presence (or absence) of laws has on their intimate lives.

The evolutions in family rights in European laws and the balance towards equal rights, whether you are homosexual or heterosexual, are first detailed with an analysis of typical sequences found in a legal survey.

Demographic analyses enrich these aspects in dealing with registration and par-enting. Statistical analyses of same-sex partnerships and same-sex marriages show frequencies of registration together with a focus on parenting linked to the partner-ship status.

In the next chapters, same-sex families are specifically studied in their daily life in France, Iceland and Italy through qualitative data. It investigates from a legal point of view and from a social perspective, what is at stake in the changing life of homosexuals in the field of parenting, what brings to everyday life the support of the law and what its absence implies.

The Postface opens towards the future of LGBT research.

**Keywords** Same-sex couples · Comparative family law · Same-sex parenting · Family policies · Demographic behaviours

<footnote>The author is grateful to Patrick Festy and Kees Waaldijk who kindly gave useful comments of the first draft of this introduction.</footnote>

<footnote>M. Digoix (✉)
French Institute for Demographic Studies (INED), Paris, France
e-mail: mad@ined.fr</footnote>
Research on homosexuality in Europe has started to diversify. Until very recently, LGBT populations were mostly studied from a psychological or medical perspective, sometimes in feminist research. The homosexual couple began to interest social sciences researchers after the beginning of AIDS epidemics. The importance of lifestyles people lived in and died in the time of AIDS raised public awareness on the lack of rights. The first researches of Michael Pollak (1985) and Marie-Ange Schiltz (1998) focused on the gay couple giving a new definition of what the term could mean (differentiating sexuality from sociability). Jurists have also been interested in situations of injustice in which individuals were regarding citizenship. The interest for sexual minority rights began to rise in the academic world when recognition of same-sex unions' legalisation started to be a universal claim in gay and lesbian struggles.

In 1989, Denmark became the first country in the world to create a legal framework, based on marriage, to offer same-sex couples the possibility to register officially their union.

Thereafter, the opening up of marriage and other legal arrangements to same-sex couples in a growing number of countries changed the visibility of homosexuality. However, this acknowledgement of homosexuality through the legal recognition of homosexual couple, reveals more the acceptance of a compliance to normative behaviour via the heterosexual model than of the sexual orientation of the individual per se (Rydström 2011). If discrimination on sexual grounds is generally prohibited by law in most of Western European countries (Waaldijk and Bonini-Baraldi 2006), the homosexual, because of his sexuality, is still stigmatised in society (Baiocco et al. 2012; Digoix 2013a). Marrying/registering a partnership implies coming out and coming out still relates to the individual in a rational choice between what law can bring to a personal situation (social recognition or legal consequences, for example) compared to what it might deteriorate (visibility and the 'endless' repetition of coming out) (Fassin 2005; Andersen 2011; Harding 2011). With regards to the opening up of marriage and parental status to same-sex couples, European countries have not reached the same level of rights (Waaldijk 2005, 2013). Nordic countries have pioneered a common trend in adopting laws (Digoix 2013b) while the timing of legalisation varies among Southern European countries. Studies have rarely been conducted in a comparative perspective but in most cases, they have shown that equal citizenship has been put forward as a political means to reach equality (Albæk 1988; Bauer 2006; Calvo 2010; Paternotte 2011).

Up until recently, homosexual couples have diversified their types of unions, balancing differently sexual and social relations and living arrangements because they were not allowed to marry like heterosexual couples (Schiltz 1998). They are now faced with marriage which used to be inaccessible. Marriage brings a legal visibility and support they don't have in the other configurations they used to invent (Pichardo Galan 2011). Yet, marriage has become more symbolic since countries have allowed same-sex couples to register civil contracts or other legal forms of union with economic and practical rights previously attached to marriage alone. However, the fact that nearly all the countries that first adopted a different legal
framework (registered partnership or contract) have opened up marriage to same-sex couples or are in the process of doing so (Digoix 2006; Pichardo Galan 2009, 2011; see Table 2.1) proves that marriage remains the target to reach equality.

In countries where the foundation of a family is not anymore mainly based on marriage, the legal focus on parenting is essential. Whereas the opening up of marriage has pulled same-sex couples towards the conjugal norm, same-sex parenting provides homosexuals with a means to assert their difference, which some perceived to have disappeared with the opening up of marriage, in compliance with heteronormativity.

In most countries, the laws about same-sex parenting have lagged behind behaviour, and homosexuals have found solutions to start families that are not covered by law, such as coparenting or surrogacy for example (SOU 2001; Traustadóttir and Kristinsson 2003; Descoutes 2010; Fine 2012).

This book aims to present researches that investigate the relationship between law and behaviours to see what is at stake in the changing life of homosexuals in the field of parenting, their perception of these changes, from a legal point of view, but also from a social perspective. The research was first undertaken in the FamiliesAndSocieties project and provided a wide covering of legal and social questions<fnref n="1" />.

The book combines several disciplines, each of which can help to understand the importance of laws and how they evolve and are used by people. It begins with an analysis of the laws in force, and how they reached this state in a wide range of European countries and what can be understood from the different times rights have opened to same-sex couples. It continues with an analysis of demographic behaviour in a smaller number of countries. Finally, a sociological analysis of parenting behaviours is produced in three countries chosen for their different legal frameworks, for their geographical location determining diverse societal environments.

In Chap. 1, Kees Waaldijk uses the *LawsAndFamilies Database* (Waaldijk et al. 2017), which documents legal changes over a 50 year period, to draw a portrait of the legal consequences attached to different family formats (marriage, registered partnership, cohabitation) of same-sex partners and different-sex partners in 21 European countries. In each country, experts provided information on a survey of 60 different rights related to the family situation of couples. The rights gradually granted to same-sex couples are compared with those of different-sex couples who are taken as a reference. Then, the rights are compared internationally, providing information on the timescales of these changes in legislation and establishing country groups and trends towards more or less equalization of rights. In the last 50 years, there has been convergence towards a great improvement of the legal situation of same-sex couples in Western and Central Europe, while in Eastern Europe the landscape is more contrasted. The opening up of marriage comes most of the time after the introduction of registered partnerships in the legal system while rights come

<footnote n="1">¹The research leading to this book has received funding from the European Union's Seventh Framework Programme (FP7/2007-2013) under grant agreement no. 320116 for the research project FamiliesAndSocieties (www.familiesandsocieties.eu).</footnote>
before status. Public attitudes towards homosexuality seem as well correlated with the emergence of rights, whether it is prior to the legal dispositions or not. The study finds typical sequences in the changing of the laws that are discussed. Kees Waaldijk shows that the path to equal treatment is step by step, and is mostly due to social and political controversies that lead to grant more rights but rarely reaching full equality, and never in one step. One major finding about the timescale of laws' adoption is that "bad-times rights" typically come before "good-times rights" in the legal process, that is, countries are less reluctant to grant rights for "bad times" (such as sickness, death, or domestic violence) than extending them for better times in the lives of couples. A related finding is that responsibilities and duties often come before benefits.

Regarding the field of parenting which is discussed in the next chapters, Waaldijk shows that specific issues regarding lesbian couples (such as ART or second-parent adoption) are less advanced than others. Also rights regarding surrogacy and joint adoption, important for gay men, are still very controversial in Europe. This relative slowness of access to reproductive rights seems to corroborate the "bad times before good times" trend. All and all, a main conclusion of the chapter would be that attitudes come before rights and legal recognition before social legitimacy.

Kees Waaldijk's conclusion leads to further chapters of the book in opening the discussion to the social importance of the legal recognition. The laws shape the lives of individuals who are adopting strategies in everyday life according to the legal framework they live in. Laws are important to promote social changes and social acceptance.

Clara Cortina and Patrick Festy's chapter is at the junction of Kees Waaldijk's legal analysis and the sociological analyses presented in the three country specific chapters. It confronts the legal framework and people's behaviours. Laws are, in general, adopted to ensure the equality of citizens. In his chapter, Kees Waaldijk showed the gap between same-sex couples and different-sex couples, how this gap is narrowing, little by little, and the context for understanding the mechanisms of this trend. Beyond the principle of equality, Clara Cortina and Patrick Festy's demographic research focuses on how laws are used. As in the case of the previous legal analysis, the situation of same-sex couples is related to that of different-sex couples. Nine European countries are surveyed for the largest comparative analysis, while they focus on Spain as a case study for a more detailed analysis.

The analysis of the frequency of homosexual marriage or registered partnership is complicated by the fact that the number of same-sex couples, used as denominator in the calculation, is often overestimated in the available data (mostly survey data). Despite the data registration pitfalls, some interesting results can be found: For example, crude rates evidence that the decreasing nuptiality for different-sex couples is contrasted by the increasing level of nuptiality of same-sex couples.

On the field of parenting, one of the main objectives of Clara Cortina and Patrick Festy's study is also to associate the level of registration with the level of legal consequences attached to marriage or registration, using a "legal index" created from
25 legal questions of the *LawsAndFamilies Database*. When splitting the index in parenting and material consequences, the correlation shows that parenting items have an impact on lesbian marriage rates, while it is not the case for gay marriage rates.

In the Spanish case study, data from the Spanish Household survey has been used. Regarding the parenting field, the previous results are confirmed. It shows, in particular, that when the couple doesn't have children, heterosexuals marry more than homosexuals, while when they do have children, there is no difference between the two groups, and no difference either between gay and lesbian couples. Same-sex couples marry less because they have less children.

The study concludes that the law can have an influence and be an incentive on the marriage project, if it is the only way to establish kinship rights. As a result, the presence of children should be controlled for when analysing the partnership status. This finding is all the more interesting that as Kees Waaldijk showed in the previous chapter, parenting rights are often the last to be granted in the timeline of legal progresses while they are paramount to the life of individuals.

The child becomes a central point of the book in the following chapters, which are devoted to the study of parenting, in its practicalities. In the *FamiliesAndSocieties Project*, the aim of the research was to investigate individual and family practices as well as the symbolic meaning attached to them in different legal contexts. It specifically tackled the relationship to the laws. France, Iceland, and Italy were chosen according to their legal frameworks, which at the beginning of the research, were different. During the process of the qualitative survey (by semi-structured interviews), France originally chosen for the Pacs law, a private union contract, opened its marriage law to same-sex couples but with fewer rights concerning parenthood. It is only after the survey was conducted that Italy adopted a civil union contract. Iceland had already opened the marriage law. Parenting laws were also diverse in France and Iceland, absent in Italy.

In the three countries, all respondents were self-identified as LGBT and chosen to cover a similar diversity, by sex, age, couple status, parental status and geographical areas. The usual biases for this kind of surveys among voluntary samples and stigmatized populations apply (Schiltz 2005) but the project aimed to counterbalance it with a wide diversity of situation among the samples. The teams used a similar guideline for the interviews to allow a comparative perspective.

A comparative analysis (including Spain) yielded several results (Digoix et al. 2016) from the 120 interviews performed. The general conclusion was that laws were not a mere device of symbolic nature but a practical support needed in everyday life.

When the survey was conducted in 2014 and 2015, there was no legal provision regarding marriage, cohabitation, let alone parenting in Italy. The parenting question is so clearly out of context that even the minimum rights have been disregarded in the 2015 Cirinnà bill, which granted a legal status for same-sex couples. While in Iceland, the research focuses on how to organize parenthood in a legal context, France and Italy are confronted with situations where parenting is a challenge. In
Italy, however, the researchers found that at the regional level, mainly in the big cities, administrative actions were taken to diminish discrimination and grant some recognition to same-sex couples.

In this context, Marina Franchi and Giulia Selmi focus on the construction of the parental models and on the relation to heteronormativity. They show how informants relate to parenting by inhabiting norms differently, trying to redefine themselves without the traditional concepts of the family. This ranges from non-paternity relationships to the invention of words to define children or the “child-parent” relationship derived from existing terms.

Overall they found parenting choices are diverse. While some informants are in opposition to the norm, others are defining mothers’ roles that reproduce the difference between the sexes. Similarly, an attachment to the biological link can be seen, when the same sperm donor is used in order to establish a blood connection between the children, or when two partners carry a child one after the other to create a relationship between the four people of a family. On the other hand, the absence of legal provisions for same-sex parenting can influence the choice of an anonymous sperm donor, so that the mothers are no likely to be exposed to a “paternity” claim, which takes precedence over social kinship in Italian law.

A final chapter is devoted to how informants give richness and meaning to their parenting by creating evidence of personal investment in child education that could be mobilized in the event of legal problem. In the Italian context, this model, which could be seen as a compliance to the heteronormative model, could rather be considered as a manipulation of norms and a challenge to heteronormativity.

One can see the different strategies, sometimes ambivalent from informants who evolve in an unfavourable environment.

In Chap. 5, Matthias Thibeaud chose a political sociological approach to study homosexual families in France and how they organize daily life in the existing legal system. Despite the opening up of marriage in 2013, the legal dispositions concerning same-sex couples parenting are few (joint adoption and adoption of partner’s children). Matthias Thibeaud explores the families formed in this context, a set of social practices, norms and constraints. The laws are defining the familial order, which sets who and how a family can be recognized and controlled by the institutions (school, health care system, administration, etc.). All families are confronted to forms of legal and social control, since legal restrictions are supplemented by powerful social norms. Within this institutional framework, he describes how people are confronted to day-to-day structures and how they manage to bypass them since the dominant family model conveys a number of normative expectations that homosexuals do not meet. Having children in this context requires respondents to mobilize social and economic capital to succeed in their goal.

Investigating the daily lives of same-sex families, Matthias Thibeaud concludes that gender relations in parenting are reworked but not always innovative. Overall, among respondents, the distinction of parental roles is not part of a naturalized gendered norm and parents declare an equal investment towards children education,
even if some recognize a bipolarity in the achievement of daily tasks, which tends to confirm that a difference in status within the homosexual couple substitutes for a gender difference.

This study of behaviours regarding the way homosexuals are “creating family” and are rearing children reveals the social regulation which frames the family and whose rainbow families stand out. The relation to the heteronorm is very present as repulsive or constraining. Facing the legal and social constraints, rainbow families question the heterosexual model of the family.

In Chap. 6, Marie Digoix is drawing from a complete change of legal framework as parenting laws were nearly a decade old when the survey was conducted in Iceland.

Iceland is a feminist and familialist country with strong family policies. With high births out of wedlock rates, heterosexual parenting had already bypassed marriage constraints when laws on same-sex partnerships were implemented. Marie Digoix has been conducting interviews with homosexual populations since 2004. In contrast to previous surveys where the mention of parenting was more distant from the concerns of respondents, especially men, in 2015, nearly all respondents declared a desire to become parent or are already parent.

The research explores the hypothesis of a familialist society pushing respondents to feel parenting prone like heterosexuals. However procreation is not so easy for homosexuals, even if the laws and the access to ART in particular, facilitate the achievement of the parental project. Research shows a diversity of situations which tends to prove that the personal choices of the various informants take precedence over an activist ideal that would see homosexual parenting stand out. Each parental project carries its peculiarities: some are totally innovative, especially when they are not covered by the laws as coparenting, but also bear their degree of compliance to heteronormativity. Even if lesbians' couples chose with ART to disregard the biological existence of a male donor, it still seems difficult for others to move away from a male/female constituent even when respondents reject it in theory.

Homosexual parenting shows a clear gender gap between lesbians who have access to ART and gays who declare first the desire of joint adoption, which is nearly impossible and coparenting, which is still out of the laws and difficult to organize, especially since lesbians now prefer to realise their parental project in a lesbian couple (through ART).

The survey took place at a moment when the law securing the position of homo-
sexuals also offered parenting opportunities that people seized. It is probably safe to
wait some time before one can conclude that this desire for parenthood is an assimi-
lation to heteronormativity.

The postface of the book is opening towards a theoretical analysis of the findings explored in the previous chapters. Wilfried Rault, a French sociologist who did not participate in the FamiliesAndSocieties project, takes into account the various results presented to understand their meaning in a broader context but also to highlight what is still pending in the LGBT questions.
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**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.
<figure><img src="image_7.png" /></figure>

## Chapter 2
# What First, What Later? Patterns in the Legal Recognition of Same-Sex Partners in European Countries

Kees Waaldijk

**Abstract** Among the 21 European countries surveyed for the *LawsAndFamilies Database*, there is a clear trend (fortified by European law) of offering same-sex couples the opportunity to formalise their relationship as marriage and/or as registered partnership, and of attaching more and more rights and responsibilities to the informal cohabitation, the registered partnership and/or the civil marriage of two people of the same sex. This chapter focusses on the timing of all these changes. In a five periods analysis, it establishes whether major partnership rights were extended to same-sex couples at the time of the introduction of registered partnership, or before, or at the time of the opening up of marriage, or between those two moments, or after the opening up of marriage. Thereby, and by calculating the same-sex legal recognition consensus among the countries surveyed for each of 26 selected rights,

Parts of this chapter were first published in the author's chapters in the report *More and more together* (Waaldijk 2017) and in a report the author wrote for the Council of Europe (Waaldijk 2018a). This chapter and these reports are based on the *LawsAndFamilies Database* (www.lawsandfamilies.eu, Waaldijk et al. 2017). The author is deeply grateful to all the legal experts across Europe who answered the detailed questions in the *LawsAndFamilies* questionnaire for their respective jurisdictions, and who reviewed answers given by their colleagues; to the people at INED in Paris (in particular Kamel Nait Abdellah, Arianna Caporali and Marie Digoix) who made the legal survey technically possible and who worked with dedication on the creation of the *LawsAndFamilies Database*; and to the researchers at Leiden Law School (José María Lorenzo Villaverde, Natalie Nikolina, Giuseppe Zago and Daniel Damonzé) who for different periods contributed with great commitment to the drafting and organisation of the legal questionnaire, the reviewing and editing of the answers, the creation of the legal database, and/or the comparative analysis. The research leading to these results has received funding from the European Union's Seventh Framework Programme (FP7/2007–2013) under grant agreement no. 320116 for the research project *FamiliesAndSocieties* (www.familiesandsocieties.eu). Additional funding was received from the Leiden University Fund (Betsy Brouwer Fonds) and from the Ministry of Foreign Affairs of Denmark.

<footnote>K. Waaldijk (✉)
Leiden University, Leiden, The Netherlands
e-mail: c.waaldijk@law.leidenuniv.nl</footnote>
it finds nine *typical sequences*: Attitudes before rights; Rights before status; Bad-times rights before good-times rights; Responsibilities before benefits; Individual partner rights before couple rights; Partnership before marriage; Immigration rights among the first to be gained; Parenting rights among the last to be gained; Legal recognition before social legitimacy.

**Keywords** Marriage · Registered partnership · Cohabitation · Same-sex couples · Comparative family law · European law

## 2.1 Detailed Picture of an Ongoing Process

Through the institute of marriage, the law of all European countries has been giving rights and responsibilities to different-sex couples. By excluding same-sex couples from marital status, it also excluded them from all those rights and responsibilities that – exclusively – came with being married.

Over the last few decades an emerging trend in Europe (and in some other parts of the world) has been to reduce this exclusion. On the one hand this is done by offering same-sex couples the opportunity to formalise their relationship as marriage or at least as registered partnership. And on the other hand more and more rights and responsibilities are being given to same-sex couples who live together in informal cohabitation and/or who formalise their relationship (by marrying each other or by registration of their partnership). These developments have taken place primarily at national level, but, as we will see, international human rights law and the law of the European Union (EU) have also played a role.

The *LawsAndFamilies Database* has documented major legal changes over a 50-year period. The legal survey of this project has traced how in 21 European countries, same-sex (and different-sex) partners started and continued to receive (some) legal recognition. It looked at marriage, registered partnership and cohabitation, and how these three legal family formats became available to same-sex couples (and/or to different-sex couples).

Of the 21 countries surveyed, 19 are members of the EU, and all (including Iceland and Norway) are part of the European Economic Area (EEA). Between them the 21 countries are a fairly representative sample for the 31 countries that are part of EEA, but less so for the 47 member states of the Council of Europe (Waaldijk 2017, p. 25). As regards the United Kingdom, the questions have been answered separately for its three component jurisdictions (England & Wales, Scotland, Northern Ireland). So in total 23 jurisdictions have been covered.

The legal survey focussed on 60 different rights and responsibilities that can be attached to these legal family formats. The methodology used for the creation of this database, including the introduction of the term “legal family format”, the definition
of the distinction between the concepts of cohabitation and registered partnership,<fnref n="1" /> the selection of 60 closed and 9 open questions, their distribution over six main categories (Formalisation, Income and troubles, Parenting, Migration, Splitting up, and Death), the definition of the answer codes for the closed questions (“Yes”, “Yes, but”, “No, but”, “No”, “Doubt” etc.), the selection of two legal experts from all countries, and the organisation of the peer review of their answers to the questionnaire, are all described in the first chapter of the report *More and more together*.<fnref n="2" />

The result is an online interactive database (www.LawsAndFamilies.eu) with an enormous amount of legal information (about more than 60 legal topics, for two types of couples, in up to three legal family formats, in 23 jurisdictions, for the years 1965–2016). This offers a very detailed picture of major legal developments in European societies. It is not a snapshot, but a movie that is still running. This chapter aims to give a synopsis of the movie so far. The focus will be on the emerging European patterns, and specifically on the *typical sequences* that are characteristic for the legal developments captured in the database.

The process of legal recognition of same-sex couples in Europe is ongoing. During the 4 years of the project (2013–2017), among the sample of 23 jurisdictions in 21 countries, no less than four opened up marriage to same-sex couples (France, Scotland, England & Wales, Ireland), and three made registered partnership available to them (Malta, Greece, Italy). And soon after the project ended in January 2017, also Finland opened up marriage (Hiltunen 2017; Valleala 2017), and Slovenia strongly increased the range of rights and responsibilities attached to same-sex registered partnership (Kogovsek Salamon 2017). And since then also Germany, Malta and Austria opened up marriage, while various countries continued to attach more and more rights and responsibilities to the marriage, the registered partnership and/or the informal cohabitation of same-sex couples.

Since 2013 also more European countries outside the project have introduced registered partnership for same-sex couples (Croatia, Cyprus, Estonia, San Marino),<fnref n="3" /> or have opened up marriage to them (Luxembourg). A full list of all European countries (and their dependencies in Europe) that now allow same-sex partners to formalise their relationship through marriage and/or registered partnership is given in Table 2.1.

The following sections will first compare the 21 countries, and then compare 26 selected substantive rights that have been extended to same-sex couples in those countries – or not.

<footnote n="1">¹ José María Lorenzo Villaverde (who as a researcher for this project at Leiden Law School played an important role in developing the questionnaire) contributed to the definition of this distinction, on the basis of his expertise on Spanish legislations, that he gained and developed for his PhD thesis: *The Legal Position of Same-Sex Couples in Spain and Denmark. A Comparative Study of Family Law* (Copenhagen: Faculty of Law of the University of Copenhagen 2015; defended April 2016). See also Waaldijk 2014.</footnote>

<footnote n="2">² Waaldijk 2017, p. 7–24; for the text of the questionnaire, see Waaldijk et al. 2016.</footnote>

<footnote n="3">³ About the implementation problems regarding the still incomplete Estonian legislation on registered partnership, see Roudik 2016.</footnote>
<table><caption>**Table 2.1** Access for same-sex partners to marriage or registered partnership – since when</caption><thead><tr><td></td><td>Registered partnership</td><td>Marriage</td></tr></thead><tbody><tr><td>Denmark</td><td>no longer (1989–2012)</td><td>2012</td></tr><tr><td>Norway</td><td>no longer (1993–2009)</td><td>2009</td></tr><tr><td>Sweden</td><td>no longer (1995–2009)</td><td>2009</td></tr><tr><td>Iceland</td><td>no longer (1996–2010)</td><td>2010</td></tr><tr><td>Greenland (DK)</td><td>no longer (1996–2016)</td><td>2016</td></tr><tr><td>Netherlands</td><td>1998</td><td>2001</td></tr><tr><td>France</td><td>1999</td><td>2013</td></tr><tr><td>Belgium</td><td>2000</td><td>2003</td></tr><tr><td>Germany</td><td>no longer (2001–2017)</td><td>2017</td></tr><tr><td>Finland</td><td>no longer (2002–2017)</td><td>2017</td></tr><tr><td>Luxembourg</td><td>2004</td><td>2015</td></tr><tr><td>Spain</td><td>no (regionally since 1998)</td><td>2005</td></tr><tr><td>England & Wales (UK)</td><td>2005</td><td>2014</td></tr><tr><td>Scotland (UK)</td><td>2005</td><td>2014</td></tr><tr><td>Northern Ireland (UK)</td><td>2005</td><td>2020</td></tr><tr><td>Slovenia</td><td>2006</td><td>no</td></tr><tr><td>Andorra</td><td>2006</td><td>no</td></tr><tr><td>Czech Republic</td><td>2006</td><td>no</td></tr><tr><td>Switzerland</td><td>2007 (regionally since 2001)</td><td>no</td></tr><tr><td>Hungary</td><td>2009</td><td>no</td></tr><tr><td>Portugal</td><td>no</td><td>2010</td></tr><tr><td>Austria</td><td>2010</td><td>2019</td></tr><tr><td>Ireland</td><td>no longer (2011–2015)</td><td>2015</td></tr><tr><td>Liechtenstein</td><td>2011</td><td>no</td></tr><tr><td>Jersey (UK)</td><td>2011</td><td>2018</td></tr><tr><td>Isle of Man (UK)</td><td>2011</td><td>2016</td></tr><tr><td>Malta</td><td>2014</td><td>2017</td></tr><tr><td>Gibraltar (UK)</td><td>2014</td><td>2016</td></tr><tr><td>Croatia</td><td>2014</td><td>no</td></tr><tr><td>Cyprus</td><td>2015</td><td>no</td></tr><tr><td>Greece</td><td>2016</td><td>no</td></tr><tr><td>Estonia</td><td>2016</td><td>no</td></tr><tr><td>Italy</td><td>2016</td><td>no</td></tr><tr><td>Faroe Islands (DK)</td><td>no</td><td>2017</td></tr><tr><td>Guernsey (UK)</td><td>no</td><td>2017</td></tr><tr><td>Alderney (UK)</td><td>no</td><td>2018</td></tr><tr><td>San Marino</td><td>2019</td><td>no</td></tr></tbody></table>

Source: Mendos (2019), ILGA Europe (2019), Waaldijk et al. (2017), and Wikipedia
## 2.2 Comparing Countries: Partnership Before Marriage – Rights Before Status – Attitudes Before Rights

In Western Europe now all countries surveyed allow same-sex couples to marry or to register as partners,<fnref n="4" /> and in all those countries these legal family formats trigger a very broad range of legal consequences.

In Central and Eastern Europe, the picture is more mixed, with three of the surveyed countries allowing neither same-sex marriages nor partnership registrations (Poland, Bulgaria, Romania).<fnref n="5" /> However, these three countries already provide some legal recognition to same-sex couples (see below), on a similarly limited scale as Greece, Italy and Malta did until very recently (see Table 2.2). And several countries in Central Europe offer same-sex couples registered partnership (Slovenia, Czech Republic, Croatia, Hungary), and for example Hungary attaches a wide range of rights and responsibilities to these partnerships (Polgari 2017; Dombos 2017). Of the countries surveyed the Czech Republic attaches a more limited range of legal consequences to its registered partnership (Otáhal 2017, Plesmid 2017), as did Slovenia until 2017 (Kogovsek Salamon 2017; Rajgelj 2017), and as do Belgium and France, but there same-sex couples also have access to a fuller range of rights and responsibilities by entering into marriage (Borghs 2017, Kouzmine 2017).

In short, there has been great convergence in the legal situation of same-sex couples in Western and Central Europe. At the same time, this has led to more divergence with countries in Eastern Europe (Waaldijk 2018a).

From Table 2.1 it can be concluded that in European countries the opening up of marriage to same-sex couples comes almost always after the introduction of same-sex registered partnership. The only independent European countries where there was no national registered partnership scheme in existence when marriage was opened up to same-sex couples, are Portugal and Spain. In Portugal extensive cohabitation recognition preceded same-sex marriage (Pamplona Côrte-Real 2017), while in Spain some form of partnership registration in several regions preceded same-sex marriage. In all other 14 independent countries that now allow same-sex marriages, the road had been paved by the nationwide introduction of registered partnership. This typical sequence is very strong. All 11 countries that introduced registered partnership before 2005, have now moved on to open up marriage. And of the 22 independent European countries that introduced registered partnership before 2015, 16 have already opened up marriage.

Yet, “partnership before marriage” is not the only typical sequence that characterises the developments in European countries. In most countries where same-sex couples gained access to formal family status (registered partnership or marriage), already before this happened some rights had been made available to informally

<footnote n="4">⁴In Western Europe the only member state of the Council of Europe without either possibility is Monaco.</footnote>

<footnote n="5">⁵A total of 19 member states of the Council of Europe in Central or Eastern Europe (those not listed in Table 1.1) do not yet offer at least one of these two options.</footnote>
<table><caption>**Table 2.2** Public attitudes and levels of substantive legal recognition</caption><thead><tr><th colspan="3">Ranking of countries according to surveys of public attitudes</th><th rowspan="2">Country</th><th colspan="2">Level of substantive legal recognition of same-sex couples</th></tr><tr><th>2004–2012</th><th>2004–2008</th><th>2009–2013</th><th>2006</th><th>2015/2016</th></tr></thead><tbody><tr><td>–</td><td>6.02</td><td>7.37</td><td>Iceland</td><td>98%</td><td>98%</td></tr><tr><td>98%</td><td>5.84</td><td>6.67</td><td>Netherlands</td><td>96%</td><td>100%</td></tr><tr><td>94%</td><td>5.80</td><td>6.55</td><td>Sweden</td><td>100%</td><td>100%</td></tr><tr><td>91%</td><td>5.26</td><td>5.92</td><td>Norway</td><td>88%</td><td>100%</td></tr><tr><td>84%</td><td>5.24</td><td>5.92</td><td>Belgium</td><td>96%</td><td>100%</td></tr><tr><td>74%</td><td>5.05</td><td>5.74</td><td>France</td><td>63%</td><td>92%</td></tr><tr><td>68%</td><td>5.17</td><td>5.68</td><td>Ireland</td><td>26%</td><td>92%</td></tr><tr><td>73%</td><td>4.97</td><td>5.62</td><td>Germany</td><td>82%</td><td>94%</td></tr><tr><td>75% (GB)</td><td>5.01 (GB)</td><td>5.59 (GB)</td><td>UK</td><td>88%</td><td>100%</td></tr><tr><td>64%</td><td>4.76</td><td>5.26</td><td>Finland</td><td>83%</td><td>90%</td></tr><tr><td>42%</td><td>4.64</td><td>5.08</td><td>Malta</td><td>15%</td><td>95%</td></tr><tr><td>53%</td><td>4.46</td><td>4.77</td><td>Italy</td><td>10%</td><td>88%</td></tr><tr><td>42%</td><td>4.51</td><td>4.74</td><td>Portugal</td><td>46%</td><td>100%</td></tr><tr><td>45%</td><td>4.34</td><td>4.72</td><td>Czech</td><td>48%</td><td>64%</td></tr><tr><td>65%</td><td>4.35</td><td>4.55</td><td>Austria</td><td>38%</td><td>100%</td></tr><tr><td>51%</td><td>4.22</td><td>4.43</td><td>Slovenia</td><td>41%</td><td>75%</td></tr><tr><td>25%</td><td>4.09</td><td>4.26</td><td>Greece</td><td>16%</td><td>86%</td></tr><tr><td>29%</td><td>3.98</td><td>3.99</td><td>Poland</td><td>4%</td><td>19%</td></tr><tr><td>24%</td><td>3.91</td><td>3.90</td><td>Hungary</td><td>46%</td><td>85%</td></tr><tr><td>26%</td><td>3.78</td><td>3.79</td><td>Bulgaria</td><td>7%</td><td>11%</td></tr><tr><td>14%</td><td>3.52</td><td>3.25</td><td>Romania</td><td>9%</td><td>9%</td></tr></tbody></table>

Sources: Smith et al. (2014a, p. 9; 2014b) for the ranking of countries by public attitude based on surveys of public attitudes to homosexuality conducted in the period 2004–2012; Flores and Park (2018, p. 27–30) for the ranking of countries according to their LGBT Global Acceptance Index based on surveys of public attitudes to LGBT issues conducted in the periods 2004–2008 and 2009–2012; and Waaldijk (2017, p. 51–53) for the level of substantive legal recognition of same-sex couples in 2006 and in 2015/2016 (based on the *LawsAndFamilies Database*). In this table the order of countries is that of the figures in the third column

cohabiting same-sex couples. Among the 21 countries surveyed for the *LawsAndFamilies Database*, only five countries (Iceland, France, Germany, Slovenia, Greece) had hardly given any rights to same-sex cohabitants before the introduction of registered partnership (Waaldijk 2017, p. 43). All countries where by 2011 same-sex cohabitants were enjoying legal recognition as regards more than one or two legal issues, had by 2016 allowed same-sex couples to formalise their relationship through marriage and/or registered partnership (idem).

In the three countries surveyed where such formalisation is not yet available (Poland, Bulgaria, Romania), same-sex couples are already starting to enjoy some legal recognition as cohabitants (Waaldijk 2017, p. 51). In Romania there is for example some recognition for the right to leave to care for a same-sex partner or for
a parent of that partner, and same-sex partners are possibly seen as next of kin and
possibly protected by legislation on domestic violence (Cojocariu 2017). Since a
recent judgment of the Court of Justice of the EU (CJEU), Romania also has to
recognise foreign same-sex marriages for the purpose of free movement of persons.<fnref n="6" />
In Poland there is for example recognition as next of kin and some as regards partner
immigration (Pudzianowska 2017), and for a surviving same-sex partner as regards
tenancy continuation, and possibly as regards compensation for wrongful death
(Smiszek 2017). Also in Bulgaria there is for example recognition as regards com-
pensation for wrongful death, and possibly as regards *simple second-parent adop-
tion* or partner immigration (Furtunova 2017; Katchaunova 2017).

All this supports the conclusion that apart from “partnership before marriage”
also “rights before status” is a typical sequence in the process of legal recognition
of same-sex couples in European countries.

While rights typically precede status, it seems also possible that substantive
rights are more important than formal status. Knowing which family formats have
been made available to same-sex couples and when, is only part of the story. For
practical legal purposes it is often less important to know by which legal family
format a right or responsibility has become applicable to same-sex partners. More
important to know is which substantive rights and responsibilities are now available
to same-sex partners, and thereby no longer the exclusive privilege of different-sex
couples.

The data in the *LawsAndFamilies Database* make it possible to track this devel-
opment for many of the rights and responsibilities included in the questionnaire
used to create this database. For tracking this development some of the 69 questions
in the questionnaire seemed less useful. In fact, only 26 of the 69 questions have
been used to assess the substantive legal recognition of same-sex couples.<fnref n="7" /> These 26
questions all tell us something about the degree to which countries recognise same-
sex partners by making substantive rights and responsibilities available to them. On
the basis of the answers given by the legal experts to these 26 questions, a ranking
of countries can be made according to what can be called their “level of substantive
legal recognition of same-sex couples”.<fnref n="8" /> This is a measure that does not look at
whether or not access has been given to marriage or registered partnership, but only
at the amount of substantive rights to which same-sex couples have access, irrespec-
tive of these rights being made available through marriage, through registered part-
nership, or through recognition of informal cohabitation. The ranking of the 21
countries surveyed according to their “level of substantive legal recognition of
same-sex couples” can be found in the last two columns of Table 2.2.

It is interesting to note that some recent rankings of countries according to public
attitudes towards homosexuality, gay rights or LGBT issues (based on various pub-

<footnote n="6">⁶CJEU, 5 June 2018, *Coman and Others*, Case C-673/16. See also Ionescu 2017.</footnote>

<footnote n="7">⁷The 26 questions are presented in Tables 2.3, 2.4 and 2.5 in Sect. 2.3 below. For the various reasons for excluding the other questions from this analysis, see Waaldijk 2017, p. 44–45.</footnote>

<footnote n="8">⁸For an explanation of how this measure has been constructed, see Waaldijk 2017, p. 51–53.</footnote>
lic attitude surveys conducted since 1981)<fnref n="9" /> correlate quite well (though not per-
fectly) with this legal ranking, as is also shown in Table 2.2.

One possible explanation for correlation is that public attitudes towards homo-
sexuality may well be an important factor contributing to the emergence of legal
rights for same-sex partners. The *legal* process may typically start with rights, but it
seems quite probable that *non-legal* phenomena (such as public attitudes) normally
pave the way for extending such rights to same-sex couples.

Table 2.2 shows that higher rankings as regards public attitudes (for any of the three periods) correspond to higher rankings as regards legal recognition for 2015/2016, but less so as regards legal recognition by 2006. In fact, one conclusion that can be drawn from Table 2.2, is that the few countries where legal recognition in 2006 was still lagging far behind public attitudes (especially Ireland and Italy, but also Austria and Malta), have legally made up for that by 2015/2016. All this would suggest another typical sequence, that of “attitudes before rights”. There also other possible explanations for the remarkable increase in legal recognition that can be seen in some countries. For example, case law of the European Court of Human Rights (ECtHR) and of the Court of Justice of the EU (CJEU) has had a direct impact on several countries where the legal recognition of same-sex couples fell behind the minimum norms that these European courts have been developing (Waaldijk 2014, 2018b), especially in Germany,<fnref n="10" /> Greece,<fnref n="11" /> France,<fnref n="12" /> Croatia,<fnref n="13" /> Italy,<fnref n="14" /> Austria,<fnref n="15" /> Poland,<fnref n="16" /> and Romania.<fnref n="17" />

An additional explanation could be that the growing international trend of legal
recognition of same-sex families in many countries (see Kollman 2007) can have a
certain influence on national lawmaking in some other countries – even when
national public attitudes there remain more hesitant on the topic.

Of course many more correlations – and outliers – between levels of legal recog-
nition and public attitudes can be found and analysed. The dataset in the
*LawsAndFamilies Database*, together with the various surveys on public attitudes
towards homosexuality that have been done since the late 1980s, should make it
possible to test various hypotheses about the relationship between law and public

<footnote n="9">⁹Smith et al. 2014a, p. 9; Flores and Park 2018, p. 27–30. The rankings by both teams of researchers are based on a range of major public attitude surveys (see also Smith et al. 2014b), and include more countries than listed here</footnote>

<footnote n="10">¹⁰CJEU, 1 April 2008, *Maruko*, Case C-267/06.</footnote>

<footnote n="11">¹¹ECtHR, 7 November 2013, *Vallianatos v. Greece*, 29381/09 & 32684/09.</footnote>

<footnote n="12">¹²CJEU, 12 December 2013, *Hay*, Case C-267/12.</footnote>

<footnote n="13">¹³ECtHR, 23 February 2016, *Pajić v. Croatia*, 68453/13.</footnote>

<footnote n="14">¹⁴ECtHR, 21 July 2015, *Oliari v. Italy*, 18766/11 & 36030/11; ECtHR, 30 June 2016, *Taddeucci & McCall v. Italy*, 51362/09.</footnote>

<footnote n="15">¹⁵ECtHR, 24 July 2003, *Karner v. Austria*, 40016/98; ECtHR, 19 February 2013, *X and Others v. Austria*, 19010/07.</footnote>

<footnote n="16">¹⁶ECtHR, 2 March 2010, *Kozak v. Poland*, 13102/02.</footnote>

<footnote n="17">¹⁷CJEU, 5 June 2018, *Coman and Others*, Case C-673/16.</footnote>
opinion. Similarly, the dataset should make it possible to analyse more closely the
possible interactions between legal inclusion (of same-sex couples) and economic,
political or other developments.<fnref n="18" />

## 2.3 Comparing Rights: Bad Times Before Good Times – Responsibilities Before Benefits – Partner Before Couple

For same-sex couples, rights and responsibilities, as argued above, have often come before status, and these rights and responsibilities say more about someone's actual legal situation than the (marital or other) status through which they have become available. The question then is, which rights and responsibilities typically come first. To this end a comparative analysis can be made between the main substantive rights and responsibilities that have been extended to same-sex partners in European countries.

Using the same selection of 26 questions as was used above to calculate the “level of substantive legal recognition of same-sex couples” for each country, here a ranking of the 26 rights and responsibilities will be made. The text of the 26 questions is presented in Tables 2.3, 2.4 and 2.5, where the questions are ranked according to what can be called the “same-sex legal recognition consensus” for 2015 or 2016 (that is: for the most recent year for which the questions have been answered for the country concerned). The “same-sex legal recognition” for each question has also been calculated for the year 2006.

The *same-sex legal recognition consensus* for a year is a percentage that indicates how many of the surveyed jurisdictions have started to recognise same-sex partners by giving them full or limited access to a specific substantive right or responsibility. This quantitative indicator is introduced to assess if there is common ground between European countries about what rights and responsibilities should at least be made available to same-sex couples.<fnref n="19" /> So also in Tables 2.3, 2.4 and 2.5 it does not matter *how* a right or responsibility becomes available (through marriage, through registered partnership, through cohabitation, or through two or three of these legal family formats).

A first conclusions that can be drawn from Tables 2.3, 2.4 and 2.5 is that, among the 21 countries surveyed, the consensus on legal recognition for same-sex couples has increased considerably between 2006 and 2015/2016 for *each* of the 26 selected substantive rights and responsibilities (an increase of at least 20% points for each).

<footnote n="18">¹⁸On the relationship between legal LGB inclusion and economic development, see Badgett et al. 2019.</footnote>

<footnote n="19">¹⁹For the exact methodology for calculating the “same-sex legal recognition consensus”, and for the actual calculations for each of the 26 questions, see Waaldijk 2017, p. 44–46 and 57–66.</footnote>
<table><caption>**Table 2.3** Eleven rights and responsibilities (out of 26 selected substantive questions) with in 2015/2016 the highest “same-sex legal recognition consensus” among 21 countries</caption><thead><tr><th rowspan="2">Question</th><th rowspan="2"></th><th colspan="2">Same-sex legal recognition consensus</th></tr><tr><th>2006</th><th>2015/16</th></tr></thead><tbody><tr><td>2.2 – Loss of social benefit</td><td>When one partner (long-term unemployed or even never having been employed at all) would be entitled to a basic social benefit, will the income of the other partner then be taken into consideration and will it possibly result in loss or reduction of this entitlement?</td><td>71%</td><td>93%</td></tr><tr><td>6.1 – Tenancy continuation</td><td>When the partner who holds the rental contract dies, does the other partner then have a right to continue to rent the home?</td><td>63%</td><td>93%</td></tr><tr><td>2.6 – Next of kin</td><td>In case of accident or illness of one partner, is the other partner considered as next of kin for medical purposes (even without power of attorney)?</td><td>53%</td><td>89%</td></tr><tr><td>4.1 – Residence for partner of national citizen</td><td>When one partner is a residing national citizen, while the other is a foreigner from another continent, will the foreign partner then have a residence entitlement/eligibility? (Please assume that they married/registered/cohabited in the country where they now want to reside [..])</td><td>57%</td><td>88%</td></tr><tr><td>6.5 – Survivor's pension</td><td>When one partner dies while being employed, is the surviving partner then normally entitled to a survivor's pension? (For example on the basis of statutory law; and/or of a collective labour agreement or arrangements of the employer.)</td><td>50%</td><td>88%</td></tr><tr><td>2.7 – Domestic violence protection</td><td>When one partner uses violence against the other partner, does specific statutory protection apply?</td><td>57%</td><td>86%</td></tr><tr><td>2.8 – No testifying in criminal case</td><td>In case of a criminal prosecution against one partner, can the other partner then refuse to testify against the partner who is being prosecuted?</td><td>57%</td><td>86%</td></tr><tr><td>6.6 – Wrongful death compensation</td><td>In case of wrongful death of one partner, is the other partner then entitled to compensation from the wrongdoer?</td><td>57%</td><td>86%</td></tr><tr><td>4.3 – Residence for partner of (non-EU) foreigner</td><td>When both partners are foreigners from another continent, and one of them is residing in the country, will the other partner then have a residence entitlement/eligibility? (Please assume that they married/registered/cohabited in the country where they now want to reside.)</td><td>50%</td><td>86%</td></tr><tr><td>5.10 – Alimony at dissolution</td><td>In case the partners split up, do statutory rules on alimony apply?</td><td>48%</td><td>86%</td></tr><tr><td>6.3 – Inheritance</td><td>When one partner dies without testament, is the other partner then an inheritor?</td><td>43%</td><td>86%</td></tr></tbody></table>

Source: Waaldijk 2017 (tables 2.21–2.29)
<table><caption>**Table 2.4** Ten rights and responsibilities (out of 26 selected substantive questions) with in 2015/2016 the lowest “same-sex legal recognition consensus” among 21 countries</caption><thead><tr><th rowspan="2">Question</th><th rowspan="2"></th><th colspan="2">Same-sex legal recognition consensus</th></tr><tr><th>2006</th><th>2015/16</th></tr></thead><tbody><tr><td>4.7 – Citizenship</td><td>Does a relationship of this type make it easier for a foreign partner to obtain citizenship?</td><td>48%</td><td>81%</td></tr><tr><td>1.12 – Statutory contract</td><td>Are there specific statutory rules regarding such a contract? (See question 1.11 about the possibility for the partners to make a contract to organise their relationship.)</td><td>48%</td><td>81%</td></tr><tr><td>2.1 – Lower income tax</td><td>Can a relationship of this type result in lower income tax than for two individuals without a partner?</td><td>47%</td><td>80%</td></tr><tr><td>5.9 – Joint property at dissolution</td><td>In case the partners split up, do statutory rules consider as joint property any possessions acquired by either of them after they started this type of relationship?</td><td>50%</td><td>80%</td></tr><tr><td>6.2 – Joint property at death</td><td>When one partner dies, do statutory rules consider as joint property any possessions acquired by either of them after they started this type of relationship? (In other words: would the surviving partner be deemed to own 50% of these possessions, while the other 50% are subject to relevant rules of inheritance law?)</td><td>50%</td><td>80%</td></tr><tr><td>1.13 – Surname</td><td>Can (or must) one partner use or have the surname of the other partner?</td><td>48%</td><td>79%</td></tr><tr><td>3.9 – Second-parent adoption</td><td>When only one partner is the legal parent of a child, does the other partner then have the possibility of becoming the child's second parent by way of adoption?</td><td>33%</td><td>74%</td></tr><tr><td>3.1 – Assisted insemination</td><td>Is it legally possible in this type of relationship to become pregnant through medically assisted insemination using sperm of a donor?</td><td>43%</td><td>63%</td></tr><tr><td>3.10 – Joint adoption</td><td>Can partners jointly adopt a child?</td><td>21%</td><td>55%</td></tr><tr><td>3.4 – Legal parenthood presumption</td><td>When one partner gives birth, will (or can) the other partner then also become legal parent of the child, without having to go through adoption? (For example automatically, or by way of recognition/acknowledgement.)</td><td>7%</td><td>38%</td></tr></tbody></table>

Source: Waaldijk 2017 (tables 2.21–2.29)
<table><caption>**Table 2.5** Five legal rights and responsibilities with a high “same-sex legal recognition consensus” in 2015/2016, but for which this is in part due to the low number of countries where these rights or responsibilities are applicable to married different-sex partners</caption><thead><tr><th rowspan="2">Question</th><th colspan="2">Same-sex legal recognition consensus</th></tr><tr><th>2006</th><th>2015/16</th></tr></thead><tbody><tr><td>2.4 – <i>Leave to care for partner</i></td><td>In case one partner is in need of care, does the other partner then have a statutory right to paid or unpaid leave to give that care?</td><td>61% (11 of 18)</td><td>83% (15 of 18)</td></tr><tr><td>3.7 – <i>Parental leave for partner</i></td><td>When only one partner is the legal parent of a child, does each partner then have a statutory right to paid or unpaid parental leave?</td><td>54% (7 of 13)</td><td>92% (12 of 13)</td></tr><tr><td>3.5 – <i>Joint parental authority</i></td><td>Is joint parental authority/responsibility possible for the couple, while only one of the partners is the legal parent of the child?</td><td>67% (8 of 12)</td><td>92% (11 of 12)</td></tr><tr><td>6.4 – <i>Inheritance tax exemption</i></td><td>Is the surviving partner exempted from paying inheritance tax (or required to pay less than a mere friend would have to pay)?</td><td>50% (9 of 18)</td><td>88% (14 of 16)</td></tr><tr><td>2.5 – <i>Leave to care for parent of partner</i></td><td>In case the parent of one partner is in need of care, does the other partner then have a statutory right to paid or unpaid leave to give that care?</td><td>50% (8 of 16)</td><td>88% (14 of 16)</td></tr></tbody></table>

Source: Waaldijk 2017 (tables 2.21-2.29)
Overall, the recognition consensus is increasing, which may inspire more countries to broaden their legal recognition of same-sex families. And this growing consensus could provide the European courts with extra arguments to require European countries to make a core minimum of specific rights and responsibilities available to same-sex families (see Sect. 2.7).

Cynically, but maybe not surprisingly, the issue with the highest *same-sex legal recognition consensus* (already in 2006) is the possibility of loss or reduction of social benefit because of the income of one's partner (question 2.2). Of all 26 rights and responsibilities selected, this is the only one that does not entail any benefit for either of the partners. It is as if legal systems did not need to think long before extending at least this burden of relationship recognition to same-sex couples.

Almost all of the rights and responsibilities in Table 2.3 with the highest recognition consensus, are about situations where one of the partners dies (tenancy continuation,<fnref n="20" /> wrongful death compensation,<fnref n="21" /> survivor's pension,<fnref n="22" /> inheritance, inheritance tax exemption), or where the partners are hit by other seriously “bad times” (accident, illness, domestic violence,<fnref n="23" /> criminal prosecution,<fnref n="24" /> splitting up). It seems that lawmakers in a very large majority of countries now take the position that it would be unjust, unfair, non-compassionate to exclude same-sex partners from legal protections designed for such sad times.

The very high recognition consensus as regards residence entitlements for a foreign same-sex partner (questions 4.1 and 4.3), however, cannot be explained directly by the sadness factor. Probably here the common rationale is also one of compassion: without such a residence entitlement the two partners would not even be able to live together in the same country – let alone to have family life under the same roof.<fnref n="25" />

About issues where the “sadness” factor is absent or may seem less prominent, the consensus is more limited. The issues with the lowest “same-sex legal recognition consensus” (in Table 2.4) have all in common that they are about *sharing* live in “good times” – sharing each other’s name or citizenship, sharing properties or tax advantages, sharing responsibility for children.

<footnote n="20">²⁰ECtHR, 24 July 2003, *Karner v. Austria*, 40016/98; ECtHR, 2 March 2010, *Kozak v. Poland*, 13102/02.</footnote>

<footnote n="21">²¹For a comparative analysis of the data regarding wrongful death compensation, see Damonzé 2017.</footnote>

<footnote n="22">²²CJEU, 1 April 2008, *Maruko*, Case C-267/06.</footnote>

<footnote n="23">²³For a comparative analysis of the data regarding domestic violence protection, see Damonzé 2017.</footnote>

<footnote n="24">²⁴For a comparative analysis of the data regarding testifying in criminal procedures, see Zago 2017.</footnote>

<footnote n="25">²⁵A good example of this is the case of *Taddeucci & McCall v. Italy*, where the ECtHR required Italy to provide a residence entitlement; see its judgment of 30 June 2016, 51362/09. See also ECtHR, 23 February 2016, *Pajić v. Croatia*, 68453/13; and CJEU, 5 June 2018, *Coman and Others*, Case C-673/16.</footnote>
The right to use your partner's surname, for example, is a symbolic classic in traditional marriage law, but apparently too controversial for full inclusion in the registered partnership laws of Austria, Belgium, Czech Republic, Finland, France, Hungary and Slovenia. Maybe in some countries it is (or was until recently) still too difficult to think of such a right outside the context of marriage.

Medically assisted insemination (question 3.1) and the different ways for a child to have two legal parents of the same sex (questions 3.4, 3.9 and 3.10) are even more controversial. Nevertheless, also regarding these parenting issues, the same-sex legal recognition consensus has been growing considerably between 2006 and 2015/2016.<fnref n="26" /> Interestingly, if you combine the information regarding the questions 3.5 (parental authority), 3.7 (parental leave) and 3.9 (second-parent adoption), there now seems to be a near-consensus that same-sex partners should at least be allowed to take some responsibility for each other's children. In only three of the 21 countries none of these three possibilities exists – precisely the three countries in this survey that still have not introduced any form of registered partnership (Bulgaria, Poland and Romania). More about developments in the recognition of parenting rights in Sect. 2.5.

It seems that the overall conclusion can be phrased with terms borrowed from classic wedding vows (such as “in good times and in bad, in sickness and in health” or “for better for worse, for richer for poorer, in sickness and in health”). As suggested in those vows, marriage (like other forms of relationship recognition) typically entails rights and responsibilities for good times, and rights and responsibilities for bad times. In gradually building up some legal recognition for same-sex couples, however, it seems that European countries have been much quicker and less reluctant in extending rights for *bad times* to them, than in extending rights for *good times*. This appears to be a fourth typical sequence (in addition to the three discussed in Sect. 2.2) that characterises the process of legal recognition of same-sex partners. The main exception to this “bad-times rights before good-times rights” pattern are the immigration rights of a foreign partner in a same-sex relationship, which are among the rights with the highest *same-sex legal recognition consensus*. It is therefore possible to point to another typical sequence: “immigration rights among the first to be gained”.

Dividing the legal consequences of marriage, partnership or cohabitation in rights for bad times and rights for good times, however, is not the only possible categorisation. The 26 issues listed in Tables 2.3, 2.4 and 2.5 can be further categorised, for example by distinguishing between benefits and responsibilities, and between rights benefitting an individual partner and rights benefitting the couple as a whole. An attempt to do so, while acknowledging the special character of immigration and parenting rights, has been made in Table 2.6, where for each category the average “same-sex legal recognition consensus” has been calculated.

From Table 2.6 it appears there are two further typical sequences, both partly overlapping with the “bad-times rights before good-times rights” pattern, and with each other. European countries have been more ready to extend benefits to an indi-

<footnote n="26">²⁶For a comparative analysis of the data regarding several parenting issues, see Nikolina 2017b.</footnote>
<table><caption>**Table 2.6** Possible categorisation of the 26 selected rights and responsibilities</caption><thead><tr><th rowspan="2">Category</th><th rowspan="2">Rights and responsibilities</th><th colspan="2">Average "same-sex legal recognition consensus"</th></tr><tr><th>2006</th><th>2015/16</th></tr></thead><tbody><tr><td rowspan="5">Implied mutual responsibilities</td><td>Loss of social benefit</td><td rowspan="5">58%</td><td rowspan="5">88%</td></tr><tr><td>Leave to care for partner</td></tr><tr><td>Leave to care for parent of partner</td></tr><tr><td>Next of kin</td></tr><tr><td>No testifying in criminal case</td></tr><tr><td rowspan="7">Benefits for one partner, implying responsibility for the other</td><td>Domestic violence protection</td><td rowspan="7">53%</td><td rowspan="7">88%</td></tr><tr><td>Alimony at dissolution</td></tr><tr><td>Tenancy continuation</td></tr><tr><td>Inheritance</td></tr><tr><td>Inheritance tax exemption</td></tr><tr><td>Survivor's pension</td></tr><tr><td>Wrongful death compensation</td></tr><tr><td rowspan="2">Immigration rights</td><td>Residence for partner of citizen</td><td rowspan="2">54%</td><td rowspan="2">87%</td></tr><tr><td>Residence for partner of foreigner</td></tr><tr><td rowspan="5">Benefits recognising the couple as a unit</td><td>Statutory contract</td><td rowspan="5">49%</td><td rowspan="5">80%</td></tr><tr><td>Surname</td></tr><tr><td>Lower income tax</td></tr><tr><td>Citizenship</td></tr><tr><td>Joint property</td></tr><tr><td rowspan="6">Parenting rights</td><td>Assisted insemination</td><td rowspan="6">38%</td><td rowspan="6">69%</td></tr><tr><td>Legal parenthood presumption</td></tr><tr><td>Joint parental authority</td></tr><tr><td>Parental leave for partner</td></tr><tr><td>Second-parent adoption</td></tr><tr><td>Joint adoption</td></tr></tbody></table>

Source: Tables 2.3, 2.4 and 2.5

vidual partner than to extend benefits to a couple as a unit; so the sequence typically is “individual partner rights before couple rights”. And European countries have been less reluctant and somewhat faster in extending (implied) responsibilities to same-sex partners, than in extending benefits to them; so “responsibilities before benefits”.

It does not seem surprising that it has been easier for countries to recognise responsibilities for individual partners than to recognise benefits for couples, because individual responsibilities typically are only between the partners (think of domestic violence protection, or alimony), whereas couple benefits typically are between the couple and wider society (think of lower income tax, or citizenship).

Furthermore, recognition of individual responsibilities is typically relevant in sad situations where someone needs support (think of tenancy continuation after death, or survivor's pension), whereas recognising couples as units typically con-
cerns happier times (think of sharing a surname, or responsibility for children), echoing the “bad-times rights before good-times rights” pattern. Recognising couples as units (think of joint property, or common citizenship) also comes closer to extending family status to them; therefore the “individual partner rights before couple rights” sequence echoes the “rights before status” pattern.

## 2.4 Five Periods of Legal Recognition

Apart from a tentative “attitudes before rights” pattern, so far five general typical sequences could be distinguished that characterise the ongoing process of legal recognition of same-sex partners in European countries:

* Rights before status

* Partnership before marriage

* Bad-times rights before good-times rights

* Individual partner rights before couple rights

* Responsibilities before benefits

While several other typical sequences will be highlighted in the remainder of this chapter, the first five typical sequences may now help in taking a closer look at the process of legal recognition in each of the countries surveyed. In these countries, the legal recognition of same-sex families did not only come when a form of registered partnership was introduced for same-sex couples, or when marriage was being opened up to them, but also in the period before all that, in the period between those two moments, and/or in the period after all that. So often rights and responsibilities for same-sex partners came during *five periods*. This incremental process has been visualised in Tables 2.7, 2.8, 2.9 and 2.10.

The first two of these tables focus on five specific rights that can be important when one of the partners dies or when one of the partners is a foreigner (each with a shorthand name for the right in question):<fnref n="27" />

* Residence for partner of citizen (Immigration)

* Tenancy continuation after death (Tenancy)

* Wrongful death compensation (Compensation)

* Inheritance tax exemption (InheriTax)

* Inheritance without testament (Inherit)

Tables 2.9 and 2.10 focus on six specific rights relating to parenting (also each with a shorthand name):<fnref n="28" />

<footnote n="27">²⁷For the full text of the corresponding questions in the LawsAndFamilies questionnaire, see Tables 2.3 and 2.5 above.</footnote>

<footnote n="28">²⁸For the full text of the corresponding questions in the LawsAndFamilies questionnaire, see Tables 2.4 and 2.5 above.</footnote>
<table><caption>**Table 2.7** Five rights for foreign or surviving same-sex partner – recognition per period (in countries that opened up marriage before 2017)</caption><thead><tr><th></th><th>Before partnership registration</th><th>At introduction of partnership registration</th><th>←Between→</th><th>At opening up of marriage</th><th>After opening marriage</th><th>Not yet by 2016</th></tr></thead><tbody><tr><td rowspan="2">Norway*</td><td></td><td><strong>1993</strong></td><td></td><td><strong>2009</strong></td><td></td><td></td></tr><tr><td>Tenancy</td><td>Compensation</td><td>–</td><td>–</td><td>–</td><td>–</td></tr><tr><td></td><td>Immigration</td><td>Inherit</td><td></td><td></td><td></td><td></td></tr><tr><td rowspan="3">Sweden*</td><td></td><td><strong>1995</strong></td><td></td><td><strong>2009</strong></td><td></td><td></td></tr><tr><td>Tenancy</td><td>Inherit</td><td>–</td><td>–</td><td>–</td><td>–</td></tr><tr><td>Immigration</td><td></td><td></td><td></td><td></td><td></td></tr><tr><td></td><td>Compensation</td><td></td><td></td><td></td><td></td><td></td></tr><tr><td>Iceland</td><td></td><td><strong>1996</strong></td><td></td><td><strong>2010</strong></td><td></td><td></td></tr><tr><td></td><td>–</td><td>All five rights</td><td>–</td><td>–</td><td>–</td><td>–</td></tr><tr><td rowspan="4">Netherlands</td><td></td><td><strong>1998</strong></td><td></td><td><strong>2001</strong></td><td></td><td></td></tr><tr><td>Tenancy</td><td>Inherit</td><td>–</td><td>–</td><td>–</td><td>–</td></tr><tr><td>Immigration</td><td></td><td></td><td></td><td></td><td></td></tr><tr><td>Compensation</td><td></td><td></td><td></td><td></td><td></td></tr><tr><td></td><td>InheriTax</td><td></td><td></td><td></td><td></td><td></td></tr><tr><td rowspan="5">France</td><td></td><td><strong>1999</strong></td><td></td><td><strong>2013</strong></td><td></td><td></td></tr><tr><td>–</td><td>Tenancy</td><td>–</td><td>Inherit</td><td>–</td><td>–</td></tr><tr><td></td><td>Immigration</td><td></td><td></td><td></td><td></td></tr><tr><td></td><td>Compensation</td><td></td><td></td><td></td><td></td></tr><tr><td></td><td>InheriTax</td><td></td><td></td><td></td><td></td></tr><tr><td rowspan="2">Belgium</td><td></td><td><strong>2000</strong></td><td></td><td><strong>2003</strong></td><td></td><td></td></tr><tr><td>Immigration</td><td>Compensation</td><td>InheriTax</td><td>Inherit</td><td>Tenancy</td><td>–</td></tr><tr><td rowspan="4">GrBritain**</td><td></td><td><strong>2005</strong></td><td></td><td><strong>2014</strong></td><td></td><td></td></tr><tr><td>Tenancy</td><td>Compensation</td><td>–</td><td>–</td><td>–</td><td>–</td></tr><tr><td>Immigration</td><td>Inherit</td><td></td><td></td><td></td><td></td></tr><tr><td></td><td>InheriTax</td><td></td><td></td><td></td><td></td></tr><tr><td rowspan="4">Portugal</td><td></td><td><strong>n/a</strong></td><td></td><td><strong>2010</strong></td><td></td><td></td></tr><tr><td>Tenancy</td><td>–</td><td>n/a</td><td>Inherit</td><td>–</td><td>–</td></tr><tr><td>Immigration</td><td></td><td></td><td></td><td></td><td></td></tr><tr><td>Compensation</td><td></td><td></td><td></td><td></td><td></td></tr><tr><td></td><td>InheriTax</td><td></td><td></td><td></td><td></td><td></td></tr><tr><td rowspan="4">Ireland</td><td></td><td><strong>2011</strong></td><td></td><td><strong>2015</strong></td><td></td><td></td></tr><tr><td>Immigration</td><td>Tenancy</td><td>–</td><td>–</td><td>–</td><td>–</td></tr><tr><td></td><td>Compensation</td><td></td><td></td><td></td><td></td></tr><tr><td></td><td>Inherit</td><td></td><td></td><td></td><td></td></tr><tr><td></td><td></td><td>InheriTax</td><td></td><td></td><td></td><td></td></tr></tbody></table>

Source: Waaldijk 2017 (Tables 2.27–2.29). * The inheritance tax exemption had been equal for same-sex and different-sex surviving partners in Sweden from 1988 until this tax was abolished in 2005 (Walleng 2017), and in Norway from 1993 until this tax was abolished in 2014 (Eeg 2017) There is also no inheritance tax in Austria (Graupner 2017) and Malta (Galea Borg 2017). ** No differences between Scotland on the one hand, and England & Wales on the other
<table><caption>**Table 2.8** Five rights for foreign or surviving same-sex partner – recognition per period (in countries that before 2017 did not open up marriage)</caption><thead><tr><th></th><th>Before partnership registration</th><th>At introduction of partnership registration</th><th>After introduction of registration</th><th>Not yet by 2016</th></tr></thead><tbody><tr><td rowspan="2">Germany</td><td></td><td><strong>2001</strong></td><td></td><td></td></tr><tr><td>Immigration</td><td>Tenancy &amp; Inherit<br>Compensation</td><td>InheriTax</td><td>–</td></tr><tr><td rowspan="3">Finland</td><td></td><td><strong>2002</strong></td><td></td><td></td></tr><tr><td>Immigration</td><td>Tenancy<br>Compensation<br>Inherit &amp; InheriTax</td><td>–</td><td>–</td></tr><tr><td></td><td><strong>2005</strong></td><td></td><td></td></tr><tr><td rowspan="2">North. Ireland</td><td>Tenancy</td><td>Compensation</td><td>–</td><td>–</td></tr><tr><td>Immigration</td><td>Inherit &amp; InheriTax</td><td></td><td></td></tr><tr><td rowspan="3">Czech Rep.</td><td></td><td><strong>2006</strong></td><td></td><td></td></tr><tr><td>Compensation</td><td>Immigration</td><td>Tenancy</td><td>–</td></tr><tr><td>InheriTax</td><td>Inherit</td><td></td><td></td></tr><tr><td rowspan="3">Slovenia</td><td></td><td><strong>2006</strong></td><td></td><td></td></tr><tr><td>–</td><td>–</td><td>Immigration<br>Inherit &amp; InheriTax</td><td>Tenancy*<br>Compensation</td></tr><tr><td></td><td></td><td></td><td></td></tr><tr><td rowspan="3">Hungary</td><td></td><td><strong>2009</strong></td><td></td><td></td></tr><tr><td>Tenancy</td><td>Inherit</td><td>InheriTax</td><td>–</td></tr><tr><td>Immigration<br>Compensation</td><td></td><td></td><td></td></tr><tr><td rowspan="3">Austria</td><td></td><td><strong>2010</strong></td><td></td><td></td></tr><tr><td>Tenancy</td><td>Compensation</td><td>–</td><td>–</td></tr><tr><td>Immigration</td><td>Inherit</td><td></td><td></td></tr><tr><td rowspan="3">Malta</td><td></td><td><strong>2014</strong></td><td></td><td></td></tr><tr><td>Tenancy</td><td>Immigration</td><td>–</td><td>–</td></tr><tr><td>Compensation</td><td>Inherit</td><td></td><td></td></tr><tr><td rowspan="2">Greece</td><td></td><td><strong>2016</strong></td><td></td><td></td></tr><tr><td>–</td><td>All five rights</td><td>–</td><td>–</td></tr><tr><td rowspan="3">Italy</td><td></td><td><strong>2016</strong></td><td></td><td></td></tr><tr><td>Immigration</td><td>Tenancy</td><td>–</td><td>–</td></tr><tr><td>Compensation</td><td>Inherit &amp; InheriTax</td><td></td><td></td></tr><tr><td rowspan="2">Poland</td><td></td><td><strong>n/a</strong></td><td></td><td></td></tr><tr><td>Tenancy</td><td>–</td><td>n/a</td><td>Immigration**<br>Compensation<br>Inherit &amp; InheriTax</td></tr><tr><td rowspan="2">Bulgaria</td><td></td><td><strong>n/a</strong></td><td></td><td></td></tr><tr><td>Compensation</td><td>–</td><td>n/a</td><td>Tenancy<br>Immigration<br>Inherit &amp; InheriTax</td></tr><tr><td rowspan="2">Romania</td><td></td><td><strong>n/a</strong></td><td></td><td></td></tr><tr><td>–</td><td>–</td><td>n/a</td><td>All five rights</td></tr></tbody></table>

Source: Waaldijk 2017 (tables 2.27–2.29). * Limited aspect of this right already available (Kogovsek Salamon 2017). ** Limited aspect already available (Pudzianowska 2017)
* *Parental leave for partner (Leave)*

* *Joint parental authority (JointAuthority)*

* *Medically assisted insemination (Insemination)*

* *Second-parent adoption (2ndP-Adoption)*

* *Joint adoption (JointAdoption)*

* *Legal parenthood presumption (Presumption)*

The opening up of marriage in Finland, Malta and Germany (in 2017) and in Austria (in 2019), came after the *LawsAndFamilies Database* had been completed, so these and other recent developments have not been included in the four tables. Not always included in these tables, is the fact that limited aspects of some rights were already made available to same-sex couples before the period in which these rights were extended to a similar degree as to different-sex couples.<fnref n="29" /> It should also be noted that in Austria, Malta, Norway and Sweden there is no inheritance tax. Therefore for those countries only four rights are listed in Tables 2.7 and 2.8. Furthermore, the questions about parental leave and about parental authority were only asked for the situation where only one of the two partners is the legal parent of a child. In such situations in several countries even a different-sex partner who is not a legal parent cannot have parental leave or parental authority. Therefore, in Tables 2.9 and 2.10 below, for some countries less than six parenting rights are listed.

Tables 2.7, 2.8, 2.9 and 2.10 illustrate the incremental build-up of the legal recognition of same-sex partners in European countries. The incremental character of this ongoing process is largely the result of the social and political controversies around the demand for equal treatment for same-sex families. The outcome of the resulting political and legal fights were almost always small legal steps in the direction of more equality, but hardly ever creating near-equality in one step, and rarely reaching full equality. This gradual character of legal recognition is further clarified in Table 2.11, which summarises the previous four tables.

In Table 2.11 it also becomes very clear that as regards the extension of substantive rights to same-sex partners, the opening up of marriage was mostly relatively unimportant: at the time of the opening up of marriage to same-sex partners only very few substantive rights were extended to them. Many more rights were extended at or even before the introduction of registered partnership, and in some countries some rights (especially rights that involve legal parental status) only were extended to same-sex couples after the opening up of marriage. So the opening up of marriage is rarely the beginning or the end – it typically is just one of the stages that countries go through on the road to full equality for same-sex families.

Interestingly, in the majority of countries surveyed, partner immigration became possible *before* the introduction of registered partnership. This confirms the pattern noted in Sect. 2.3: "immigration rights among the first to be gained". Therefore it is not surprising, that immigration rights for foreign partners have also been the sub-

<footnote n="29">²⁹ See the bracketed years in tables 2.21 to 2.29 in Waaldijk 2017.</footnote>
<table><caption>**Table 2.9** Six parenting rights for same-sex partners – recognition per period (in countries that opened up marriage before 2017)</caption><thead><tr><th></th><th>Before partnership registration</th><th>At introduction of partnership registration</th><th>Between</th><th>At opening up of marriage</th><th>After opening marriage</th><th>Not yet by 2016</th></tr></thead><tbody><tr><td rowspan="2">Norway</td><td></td><td>1993</td><td></td><td>2009</td><td></td><td></td></tr><tr><td>Leave</td><td>-</td><td>2<sup>nd</sup>P-Adoption</td><td>JointAdoption<br>Insemination<br>Presumption</td><td>-</td><td>-</td></tr><tr><td rowspan="2">Sweden</td><td></td><td>1995</td><td></td><td>2009</td><td></td><td></td></tr><tr><td>Insemination</td><td>Leave<br>JointAuthority</td><td>Adoptions<br>Presumption</td><td>-</td><td>-</td><td>-</td></tr><tr><td rowspan="3">Iceland</td><td></td><td>1996</td><td></td><td>2010</td><td></td><td></td></tr><tr><td rowspan="3">-</td><td rowspan="3">JointAuthority</td><td>Adoptions</td><td>-</td><td>-</td><td>-</td></tr><tr><td>Insemination</td><td></td><td></td><td></td></tr><tr><td>Presumption</td><td></td><td></td><td></td></tr><tr><td rowspan="2">Netherlands</td><td></td><td>1998</td><td></td><td>2001</td><td></td><td></td></tr><tr><td>Insemination</td><td>JointAuthority</td><td>-</td><td>Leave<br>Adoptions</td><td>Presumption</td><td>-</td></tr><tr><td rowspan="2">France</td><td></td><td>1999</td><td></td><td>2013</td><td></td><td></td></tr><tr><td>-</td><td>Leave</td><td>JointAuthority</td><td>Adoptions</td><td>-</td><td>Insemination<br>Presumption</td></tr><tr><td rowspan="2">Belgium</td><td></td><td>2000</td><td></td><td>2003</td><td></td><td></td></tr><tr><td>Insemination</td><td>-</td><td>-</td><td>-</td><td>Leave<br>Adoptions<br>Presumption</td><td>-</td></tr><tr><td rowspan="3">Scotland</td><td></td><td>2005</td><td></td><td>2014</td><td></td><td></td></tr><tr><td>Leave</td><td>-</td><td>Adoptions</td><td>-</td><td>-</td><td>-</td></tr><tr><td>JointAuthority<br>Insemination</td><td></td><td>Presumption</td><td></td><td></td><td></td></tr><tr><td rowspan="3">England & Wales</td><td></td><td>2005</td><td></td><td>2014</td><td></td><td></td></tr><tr><td>Leave</td><td>Adoptions</td><td>Presumption</td><td>-</td><td>-</td><td>-</td></tr><tr><td>JointAuthority<br>Insemination</td><td></td><td></td><td></td><td></td><td></td></tr><tr><td rowspan="2">Portugal</td><td></td><td>n/a</td><td></td><td>2010</td><td></td><td></td></tr><tr><td>-</td><td>-</td><td>n/a</td><td>-</td><td>All five* rights</td><td>-</td></tr><tr><td rowspan="2">Ireland</td><td></td><td>2011</td><td></td><td>2015</td><td></td><td></td></tr><tr><td>Leave</td><td>-</td><td>-</td><td>JointAuthority<br>Adoptions</td><td>-</td><td>Presumption</td></tr><tr><td></td><td>Insemination</td><td></td><td></td><td></td><td></td><td></td></tr></tbody></table>

Source: Waaldijk 2017 (tables 2.25, 2.26). * Portugal is one of the countries where only legal parents can have parental leave (Freitas 2017)
<table><caption>**Table 2.10** Six parenting rights for same-sex partners – recognition per period (in countries that before 2017 did not open up marriage)</caption><thead><tr><th></th><th>Before partnership registration</th><th>At introduction of partnership registration</th><th>After introduction of registration</th><th>Not yet by 2016</th></tr></thead><tbody><tr><td rowspan="3">Germany</td><td rowspan="3">JointAuthority</td><td><strong>2001</strong></td><td></td><td></td></tr><tr><td>Leave</td><td>2<sup>nd</sup>P-Adoption</td><td>JointAdoption*</td></tr><tr><td>Insemination</td><td></td><td>Presumption</td></tr><tr><td rowspan="3">Finland</td><td rowspan="3">JointAuthority<br>Insemination</td><td><strong>2002</strong></td><td></td><td></td></tr><tr><td>–</td><td>Leave</td><td>JointAdoption</td></tr><tr><td></td><td>2<sup>nd</sup>P-Adoption</td><td>Presumption</td></tr><tr><td rowspan="4">Northern Ireland</td><td>Leave</td><td><strong>2005</strong></td><td></td><td></td></tr><tr><td>JointAuthority</td><td>–</td><td>Adoptions</td><td>–</td></tr><tr><td>Insemination</td><td></td><td>Presumption</td><td></td></tr><tr><td></td><td></td><td></td><td></td></tr><tr><td rowspan="3">Czech Republic</td><td rowspan="3">–</td><td><strong>2006</strong></td><td></td><td></td></tr><tr><td>JointAuthority</td><td>–</td><td>Adoptions</td><td></td></tr><tr><td></td><td></td><td>Insemination</td><td></td></tr><tr><td rowspan="3">Slovenia</td><td rowspan="3">–</td><td><strong>2006</strong></td><td></td><td></td></tr><tr><td>–</td><td>Leave</td><td>JointAdoption</td></tr><tr><td></td><td>2<sup>nd</sup>P-Adoption</td><td>Insemination</td></tr><tr><td rowspan="3">Hungary</td><td rowspan="3">–</td><td><strong>2009</strong></td><td></td><td></td></tr><tr><td>Leave</td><td>JointAuthority</td><td>Adoptions</td></tr><tr><td></td><td></td><td>Insemination</td></tr><tr><td rowspan="3">Austria</td><td rowspan="3">Leave</td><td><strong>2010</strong></td><td></td><td></td></tr><tr><td>–</td><td>Adoptions</td><td>–</td></tr><tr><td></td><td>Insemination</td><td></td></tr><tr><td rowspan="3">Malta</td><td rowspan="3">–</td><td><strong>2014</strong></td><td></td><td></td></tr><tr><td>Adoptions</td><td>–</td><td>Insemination</td></tr><tr><td></td><td></td><td>Presumption</td></tr><tr><td rowspan="3">Greece</td><td rowspan="3">Insemination</td><td><strong>2016</strong></td><td></td><td></td></tr><tr><td>–</td><td>–</td><td>Adoptions</td></tr><tr><td></td><td></td><td>Presumption</td></tr><tr><td rowspan="3">Italy</td><td rowspan="3">2<sup>nd</sup>P-Adoption</td><td><strong>2016</strong></td><td></td><td></td></tr><tr><td>–</td><td>–</td><td>JointAdoption</td></tr><tr><td></td><td></td><td>Insemination</td></tr><tr><td rowspan="3">Bulgaria</td><td rowspan="3">–</td><td><strong>n/a</strong></td><td></td><td></td></tr><tr><td>–</td><td>n/a</td><td>All five** rights</td></tr><tr><td></td><td></td><td></td></tr><tr><td rowspan="2">Poland</td><td rowspan="2">–</td><td><strong>n/a</strong></td><td></td><td></td></tr><tr><td>–</td><td>n/a</td><td>All five*** rights</td></tr><tr><td rowspan="2">Romania</td><td rowspan="2">–</td><td><strong>n/a</strong></td><td></td><td></td></tr><tr><td>–</td><td>n/a</td><td>All six rights</td></tr></tbody></table>

Source: Waaldijk 2017 (tables 2.25, 2.26). * But successive adoption already possible (Markart 2017). ** But simple second-parent adoption may already be possible; Bulgaria is one of the countries where only legal parents can have parental authority (Furtunova 2017). *** Poland is one of the countries where only legal parents can have parental leave (Pudzianowska 2017)
<table><caption>**Table 2.11** Number of countries that extended rights to same-sex partners – per period</caption><thead><tr><th></th><th>Before partnership registration</th><th>At introduction of partnership registration</th><th>After introduction partnership registration (and before marriage)</th><th>At opening up of marriage</th><th>After opening up of marriage</th><th>Not yet by 2016</th></tr></thead><tbody><tr><td>Residence for partner of citizen</td><td>14</td><td>5</td><td>1</td><td>–</td><td>–</td><td>3</td></tr><tr><td>Tenancy continuation after death</td><td>11</td><td>7</td><td>1</td><td>–</td><td>1</td><td>3</td></tr><tr><td>Wrongful death compensation</td><td>8</td><td>12</td><td>–</td><td>–</td><td>–</td><td>3</td></tr><tr><td>Inheritance without testament</td><td>–</td><td>16</td><td>1</td><td>3</td><td>–</td><td>3</td></tr><tr><td>Inheritance tax exemption</td><td>3</td><td>9</td><td>4</td><td>–</td><td>–</td><td>3</td></tr><tr><td>Parental leave for partner</td><td>6</td><td>4</td><td>2</td><td>1</td><td>1</td><td>1</td></tr><tr><td>Joint parental authority</td><td>5</td><td>4</td><td>2</td><td>1</td><td>1</td><td>1</td></tr><tr><td>Medically assisted insemination</td><td>9</td><td>1</td><td>2</td><td>1</td><td>1</td><td>9</td></tr><tr><td>Second-parent adoption</td><td>1</td><td>2</td><td>9</td><td>3</td><td>2</td><td>6</td></tr><tr><td>Joint adoption</td><td>–</td><td>2</td><td>5</td><td>4</td><td>2</td><td>10</td></tr><tr><td>Legal parenthood presumption</td><td>–</td><td>–</td><td>6</td><td>1</td><td>3</td><td>13</td></tr></tbody></table>

Source: Tables 2.7, 2.8, 2.9 and 2.10. Highlighted are the most common periods for each right

ject matter in three of the cases on same-sex partnership that were successful in the European courts.<fnref n="30" />

Similarly, the right to continue to rent the home for which your deceased partner held the rental contract, is also a right mostly extended to same-sex partners *before* the introduction of a form of registered partnership. The very first successful case on same-sex partnership in the European Court of Human Rights was precisely about this issue: in 2003 this Court established the principle that rights such as this, when they have already been extended to unmarried different-sex partners, should also be extended to same-sex partners.<fnref n="31" />

<footnote n="30">³⁰ ECtHR, 30 June 2016, *Taddeucci & McCall v. Italy*, 51362/09; ECtHR, 23 February 2016, *Pajić v. Croatia*, 68453/13; CJEU, 5 June 2018, *Coman and Others*, Case C-673/16.</footnote>

<footnote n="31">³¹ ECtHR, 24 July 2003, *Karner v. Austria*, 40016/98.</footnote>
The other three non-parenting rights that were highlighted in Tables 2.7 and 2.8 (wrongful death compensation, inheritance and inheritance tax) are typically made available to same-sex partners when registered partnership is introduced.

Also the parenting rights highlighted in Tables 2.9 and 2.10 are mostly extended to same-sex partners (if at all) before the opening up of marriage. And the three parenting rights that do not involve legal parental status (i.e. parental leave, parental authority and assisted insemination), are mostly among the very first parenting rights that become available to same-sex couples – even before the introduction of registered partnership. The situation in France, where same-sex marriage and same-sex adoptions are possible, but where medically assisted insemination is not yet lawful for women in a same-sex relationship (Ronzier 2017), is quite unique.

As can be seen in Tables 2.9 and 2.10, the first legal step towards parenting equality between same-sex and different-sex couples differs from country to country. In some countries (including Greece, Ireland, Netherlands and the United Kingdom) it started with not prohibiting medically assisted insemination of women in same-sex relationships. In a few other countries a first step was to allow the same-sex partner of a parent to take parental leave (as in Austria, Hungary and Norway), or to share in the parental authority over the child (as in Finland, France and Germany), or to apply for second-parent adoption (as in Italy and Slovenia). In a few countries (Portugal and Malta) a first step included both joint and second-parent adoption, while in at least one country (Portugal) almost all aspects of same-sex parenting became legal simultaneously.

In some countries, most recognition of same-sex parenting happened *before* same-sex marriages were allowed (as in Austria, Germany, Finland, Sweden, and the UK), while in other countries such recognition largely came *with* (as in France, Ireland, Malta, Netherlands, and Norway) or even *after* the opening up of marriage to same-sex couples (as in Belgium and Portugal).

## 2.5 Women and Children Last?

The relative slow, late and incomplete recognition of parenting rights begs questions about the gender-neutrality of the patterns in the legal recognition of same-sex partners. It seems that even in most countries where same-sex couples are widely recognised socially and legally, the law and its impact are (still) not fully gender-neutral. One indication for this is, that in most countries the crude female/female “marriage” rate is different from the crude male/male “marriage” rate (see Cortina and Festy 2014 and their chapter in this book).

In the legal survey of LawsAndFamilies only a few questions dealt specifically with issues that are not relevant to all same-sex couples, but only to female same-sex couples (and of course to different-sex couples): questions 3.1 (medically assisted insemination), 3.2 (IVF), and 3.4 (legal parenthood for the partner of the woman
who gives birth).<fnref n="32" /> The survey has shown that as regards same-sex couples, these three issues are very controversial: they are among the questions with the lowest *same-sex legal recognition consensus* in the countries surveyed (see Table 2.4 above). Assuming that in most countries it is still more common for a woman in a same-sex relationship to be a parent, than for a man in a same-sex relationship, several questions are relevant for rather more *lesbian couples* than gay couples. One of these (question 3.9, on second-parent adoption) is also among the questions with a low *same-sex legal recognition consensus*.

A few issues that in many countries have been historically gender-specific, including the right to use the surname of your spouse (question 1.13) and the right to acquire the citizenship of your spouse (question 4.7), are also among the questions with a low *same-sex legal recognition consensus* (see Table 2.4).

Finally, there are several questions about issues that in different-sex couples (because of economic and other disparities between men and women) have a greater impact on women than on men. It is telling that the issue with the highest *same-sex legal recognition consensus* (question 2.2, loss or reduction of social benefit because of the income of your partner) is one which (at least historically) has had a particularly negative impact on women (see Holtmaat 1996). However, also some key protections, that at least in traditional heterosexual relationships can be to the benefit of the female partner, are among the questions with a high *same-sex legal recognition consensus*: questions 2.7 (domestic violence protection), 6.1 (tenancy continuation), joint property (5.9 and 6.2), alimony (5.10) and 6.5 (survivor's pension). It is not clear if these (traditionally gendered) issues have the same importance in lesbian relationships as in gay relationships (but see also the other chapters in this book).

The legal survey did not look specifically at the impact of the legal rules on *bisexual, transgender, intersex or non-binary* individuals and their relationships. It seems likely that not only lesbians and gays, but also other sexual and gender minorities can benefit from increasingly gender-neutral rules of family law. It would be good if there would be research on the impact of the growing legal recognition of same-sex relationships on people from such other minorities.

Overall, it can be said that further research is needed to assess the gender-impact of the growing but still incomplete recognition of same-sex partners in European countries. However, there are already several indications that the pattern and impact of recognition have not been gender-neutral, especially in the field of parenting. Legal recognition of same-sex couples has advanced less – or slower – on some issues that are only or especially relevant to *lesbian* couples (questions 3.1, 3.2 and 3.4, see above).

This conclusion may be nuanced a little – but not contradicted – by pointing to the extra importance that rights to joint adoption and to surrogacy may have for gay men who wish to become parents.<fnref n="33" /> Both rights are among the most controversial

<footnote n="32">³²The outcomes for the IVF question are very similar to those for the question on medically assisted insemination.</footnote>

<footnote n="33">³³The *LawsAndFamilies Database* does include answers to a question about surrogacy (question 3.3), but this question implied so many different aspects (lawfulness of surrogacy contracts, of</footnote>
issues covered in the survey, and joint adoption (question 3.10, see Table 2.4) is
among the rights with the lowest *same-sex legal recognition consensus* among the
countries surveyed.

Some legal protections during sickness (next of kin, leave to care for partner) and after death (tenancy continuation, survivor's pension, inheritance tax), which all have a high *same-sex legal recognition consensus* (see Tables 2.3, 2.4, 2.7 and 2.8), gained additional relevance for large numbers of gay men during the Aids crisis. The very first judgment of the European Court of Human Rights in a case about the rights of same-sex partners (*Karner v. Austria*) was of great symbolic and legal importance in this respect. In its judgment, before ruling that Austria must include same-sex partners in its tenancy continuation rules (which until then only applied to married and unmarried different-sex partners), the Court specifically pointed out that Mr. Karner (the applicant) from 1989:

> lived with Mr W., with whom he had a homosexual relationship, in a flat in Vienna, which the latter had rented a year earlier. They shared the expenses on the flat. [...] In 1991 Mr W. discovered that he was infected with the Aids virus. His relationship with the applicant continued. In 1993, when Mr W. developed Aids, the applicant nursed him. In 1994 Mr W. died after designating the applicant as his heir.<fnref n="34" />

Also in other ways the Aids crisis seems to have speeded up the process of legal
recognition of same-sex partners. A conclusion could be (again in terms derived
from classic wedding vows) that sickness rights often have been extended to same-
sex partners before reproductive health rights were. This sequence may be just a
manifestation of the more general sequence of “bad-times rights before good-times
rights”. However, it also provides a further indication, but no conclusive evidence,
that an additional pattern can be discerned in the process of legal recognition of
same-sex partners in European countries: “men before women”.

A stronger typical sequence that has emerged in this and the previous sections, is that of putting “parenting rights among the last to be gained”. This may be a typical European phenomenon (Polikoff 2000). The *same-sex legal recognition consensus* among the countries surveyed is the lowest for parenting rights (Table 2.6), and recognition typically comes latest – if at all – for parenting rights that involve legal parental status: second-parent and joint adoption, and presumption of legal parenthood (Table 2.11). This can be seen as an illustration of the “rights before status” pattern, that was observed in Sect. 2.2.

In the gradual recognition of parenting rights, also some of the other typical
sequences apply: The parenting rights that are about responsibilities for children
that are already part of the household of same-sex partners (parental leave, parental
authority, second-parent adoption) typically get recognised sooner or more often
than the rights concerning “new” children (assisted insemination, joint adoption,

<footnote>payments for the surrogate mother, of egg donations, etc. and of the possibility for two men to
become both legal fathers of a child), that the – interesting – results do not lend themselves for
inclusion in the quantitative analysis that is presented here. See Friðriksdóttir 2017 for upcoming
legislation in Iceland.</footnote>

<footnote n="34">³⁴ECtHR, 24 July 2003, *Karner v. Austria*, 40016/98, par. 12.</footnote>
presumption of legal parenthood). This illustrates both the “responsibilities before benefits” pattern and the “individual partner rights before couple rights” pattern. Legal systems seem to be more ready to give some parenting rights to the same-sex partner of a parent, than to give parental status to a whole same-sex couple.

In Sect. 2.3, we already noticed among European countries a near-consensus that same-sex partners should at least be allowed to take *some* responsibility for each other's children (through parental leave, or through joint parental authority, or even via second-parent adoption). In quite a few countries, same-sex couples can now take *full* responsibility for each other's children. This started around the turn of the century, when first Denmark in 1999, and later a large minority of European countries, extended the possibility of *second-parent adoption* – so that it is now possible there to adopt the child of your same-sex partner (Nikolina 2017a; Mendos 2019, p. 297–299; and Tables 2.9 and 2.10). And such adoptions of course trigger a whole range of legal rights and responsibilities between the child and the adoptive second parent.

A slightly smaller, but also growing group of European countries (starting with the Netherlands in 2001) has gone further by also allowing *joint* adoptions by same-sex couples (Nikolina 2017a, b; Mendos 2019, p. 291–292; and Tables 2.9 and 2.10). And in a similar group of European countries it is legally possible for a woman in a same-sex relationship to become pregnant through medically assisted insemination (Tables 2.9 and 2.10). The result is that in most of these countries same-sex couples now are allowed to create a family with children, *and* to formalise their relationship to these children.

However, in many countries this formalisation of parentage can only be done through adoption, typically involving time, money, a court procedure and an examination by the child welfare authorities. This is different in different-sex families, because there the relationship between child and father (even when he is not the biological father) is mostly created simply by the legal presumption of paternity (if the couple is married) or by recognition/acknowledgment of the child by the father (Nikolina 2017a). In some countries this major difference between heterosexual and lesbian families has started to disappear. In 2003 Sweden became the first European country where, when a woman gives birth to a child, her female partner can also become a legal parent of that child from the moment of birth (without having to go through an adoption procedure) (Ytterberg 2017). Although the conditions and procedures differ somewhat from country to country, such a possibility now exists already in a sizeable minority of European countries (Nikolina 2017a, p. 103; and Tables 2.9 and 2.10).

## 2.6 The Social Importance of Legal Recognition

Statistics show that there is real demand among same-sex couples to be able to formalise their relationships. The statistics collected by Cortina and Festy (2014, and their Chap. 3 in this book) indicate that each year tens of thousands of same-sex cou-
ples in European countries choose to marry or to register as partners. The initial peaks in the frequency of partnership registrations indicate that in the relevant countries there was already a pent-up demand for such legal formalisation of same-sex relationships. The *sustained* annual rates of male/male marriages and partnership registrations, and the *growing* annual rates in most countries for female/female marriages and partnership registrations, are evidence that the relevant legislation is not just symbolically important, but also practically important in the lives of the people concerned.

And such legislation shapes these lives (Digoix et al. 2016, p. 24; Neyer 2017, p. 21). Many of the laws that attach rights or responsibilities to different legal family formats, shape the relationships between partners, and between them and their parents, children, etc. See for example (in Tables 2.3 and 2.4) the questions from the legal survey on loss of social benefits, leave to care for partner, leave to care for parent of partner, next of kin provisions, parental authority, parental leave, alimony, inheritance and survivor's pension. A recent study showed how legislation (directly or indirectly) can mandate, block, generate or lighten intergenerational interdependence (Dykstra and Hagestad 2016, p. 57–58), “by defining rights and duties towards old and young in the family, and by reinforcing or lightening the reliance on older and younger family members” (idem, p. 59).

The social importance of laws for same-sex families is further evidenced in the interviews conducted in Italy, Iceland and France by other authors of this book. They emphasise that – apart from the actual practical use that couples make of the legal possibilities for marriage, partnership and parenting – the interviewees support these laws “because of the undebatable principle of equal citizenship” (Digoix et al. 2017, p. 147). And these authors point out that “the existence of laws also has a favourable effect on public perceptions of homosexuals” (idem), and that “the practical consequences of laws shape everyday life” (Digoix et al. 2016, p. 24). Interestingly, they illustrate the combination of these two aspects, with the practical effects that parenting by same-sex families can have on others and on society in general: “the visibility of parenting seems to facilitate an implied social insertion of homosexuals who are seen as parents and thus not simply reduced to their sexuality” (idem, p. 26). This is similar to what Takács et al. (2016, p. 1797) find: “In countries having legal institutions allowing for non-heteronormative family practices, people are more likely to directly encounter manifestations of same-gender family and partnership forms as ordinary facts of everyday life” and “in addition to the normative message of the state [...] the introduction of these legal institutions can have longer-term socialization effects that can potentially contribute to increasing levels of acceptance toward non-heteronormative family forms.”

Digoix et al. (2016, p. 26) also conclude from their research findings that the enactment of laws is extra important for promoting social change in this field, precisely because there are such strong “persisting heteronormative culture models across societies”. Politically, the enactment of laws is often seen as the end of a process, but these sociological findings make us aware that laws are often just a “first step” in a social process; the interviewees apparently often see legal support “as essential for *initiating* social inclusion” (idem, p. 24, emphasis added).
It seems that the – practical and symbolic – social relevance of legal recognition of same-sex family life, is now also being acknowledged in European law. Various EU rules now refer to registered partnership, to non-marital partners, to persons living in a committed intimate relationship, etc., while both the Court of Justice of the EU and the European Court of Human Rights have recognised that distinctions between same-sex and different-sex partners amount to sexual orientation discrimination (Waaldijk 2014, 2018b). The latter Court has also ruled that non-marital partnerships are also covered by the right to respect for “family life”,<fnref n="35" /> and that this includes same-sex partnerships.<fnref n="36" /> It has acknowledged that for a same-sex couple “an officially recognised alternative to marriage (would) have an intrinsic value”, apart from its legal effects.<fnref n="37" /> And that such recognition would further bring “a sense of legitimacy to same-sex couples”.<fnref n="38" />

In Sect. 2.3 we found some evidence for the typical sequence of “attitudes before rights”, although in some countries also the reverse sequence could be noticed. Presumably both these patterns are at play, with rights and attitudes regarding same-sex families reinforcing each other. In other words, attitudes facilitate rights, and in turn *legal recognition strengthens social legitimacy*.

## 2.7 Conclusion: From Core Rights to More Rights

There is a clear and rapid trend, among a large majority of the 21 countries surveyed for the *LawsAndFamilies Database*, of offering same-sex couples the opportunity to formalise their relationship as marriage and/or as registered partnership. The absence of any such opportunity in three of these 21 countries (and in 19 of the 47 Council of Europe countries) may well be against recent case law of the European Court of Human Rights.<fnref n="39" />

And there is a clear and rapid trend among the 21 countries surveyed of attaching more and more rights and responsibilities to the cohabitation, the registered partnership and/or the marriage of two people of the same sex. This trend, too, has been strengthened by case law of the European Court of Human Rights, by some EU legislation, and by case law of the Court of Justice of the EU (Crisafulli 2014; Orzan 2014; Waaldijk 2014, 2018b). And it has been encouraged by the recommendations and studies of other bodies of EU and Council of Europe.<fnref n="40" />

<footnote n="35">³⁵ ECtHR, 18 December 1986, *Johnston v Ireland*, 9697/82, par. 55–56.</footnote>

<footnote n="36">³⁶ ECtHR, 24 June 2010, *Schalk & Kopf v Austria*, 30141/04, par. 94.</footnote>

<footnote n="37">³⁷ ECtHR, 7 November 2013, *Vallianatos v. Greece*, 29381/09 & 32684/09, par. 81.</footnote>

<footnote n="38">³⁸ ECtHR, 21 July 2015, *Oliari v. Italy*, 18766/11 & 36030/11, par. 174.</footnote>

<footnote n="39">³⁹ ECtHR, 21 July 2015, *Oliari v. Italy*, 18766/11 & 36030/11.</footnote>

<footnote n="40">⁴⁰ See for example the comprehensive reports by the Commissioner for Human Rights (2011) of the Council of Europe and by the EU Agency for Fundamental Rights (FRA 2015), and Resolution 2239 (2018) of the Parliamentary Assembly of the Council of Europe (PACE 2018).</footnote>
Both these trends reflect the recognition – as articulated by the European Court of Human Rights – that same-sex couples are covered by the right to respect for family life.<fnref n="41" /> And that they are “in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship”,<fnref n="42" /> and “have the same needs in terms of mutual support and assistance as different-sex couples”.<fnref n="43" /> Both trends show the growing awareness in European countries that there should be no discrimination based on anyone’s sexual orientation – or on the sex of anyone’s partner.

This chapter set out to find more specific patterns and typical sequences within this double trend of legal recognition of same-sex partners.

In Sects. 2.2 and 2.6 this chapter has signalled various indications for an interaction between the legal and the social. Positive social attitudes towards homosexual-ity seem to facilitate the legal recognition of same-sex partners, and this legal recognition in turn seems to strengthen the social legitimacy of same-sex families. In short, the following two *typical sequences* seem to be reinforcing each other:

* Attitudes before rights

* Legal recognition before social legitimacy

This chapter looked at the timing of the introduction of registered partnership and/or the opening up of marriage to same-sex couples (Sect. 2.2). In a *five periods* analysis, it established whether major partnership rights were extended to same-sex couples at the time of the introduction of registered partnership, or before, or at the time of the opening up of marriage, or between those two moments, or after the opening up of marriage (Sect. 2.4). Thereby, and by calculating the *same-sex legal recognition* consensus among the 21 European countries surveyed for each of 26 selected rights and responsibilities (Sect. 2.3), another seven *typical sequences* could be noticed. These typical sequences are characteristic for the process of legal recognition of same-sex partners in these countries. The following seven were found:

* Rights before status

* Partnership before marriage

* Bad-times rights before good-times rights

* Responsibilities before benefits

* Individual partner rights before couple rights

* Immigration rights among the first to be gained

* Parenting rights among the last to be gained

These typical sequences overlap and reinforce each other. And as discussed in Sect. 2.5, some may be making the process of legal recognition somewhat slower for female partners than for male partners. As noted in the previous sections, there are

<footnote n="41">⁴¹ECtHR, 24 June 2010, *Schalk & Kopf v. Austria*, 30141/04, par. 94.</footnote>

<footnote n="42">⁴²Idem, par. 99; see also ECtHR, 7 November 2013, *Vallianatos v. Greece*, 29381/09 & 32684/09, par. 78.</footnote>

<footnote n="43">⁴³ECtHR, 7 November 2013, *Vallianatos v. Greece*, 29381/09 & 32684/09, par. 81.</footnote>
various exceptions to these typical sequences: in specific countries specific rights or responsibilities have been gained sooner or later than the general pattern suggests.

It is possible that the general pattern presented here, will already have some effect on countries that are only starting or considering to legally recognise same-sex couples and their children. Perhaps the typical sequences will inspire activists, lawmakers and judges in such countries – perhaps accelerating them or possibly slowing them down. At the very least the typical sequences can be read as advice on where to start (and what steps to take next) when political or legal actors in a country want to improve the legal situation of same-sex couples.

However, it seems likely that the mere example offered by the developments in 21 European countries here analysed, will not be enough to make changes happen in those countries (among and beyond this sample of 21) where legal recognition is still limited or even absent. Therefore political and judicial European institutions may have an important role to play (Waaldijk 2018a).

The European Court of Human Rights, for example, has spoken repeatedly about the “core rights relevant to a couple in a stable committed relationship”.<fnref n="44" /> And the Court has indicated many times that in considering whether or not a restriction, exclusion or distinction is justifiable under the European Convention of Human Rights, it would look at comparative studies of the situation in the member states of the Council of Europe.<fnref n="45" /> This so-called “consensus analysis” of the Court, potentially gives extra importance to data as in the *LawsAndFamilies Database*.

The assessment of the *same-sex legal recognition consensus* for each of the 26 selected substantive rights and responsibilities (Tables 2.3, 2.4 and 2.5) suggests a core minimum of rights and responsibilities that should at least be made available to same-sex partners (be it through informal cohabitation, through registered partnership, or through civil marriage). The assessment in Sect. 2.3 suggests that a core minimum of rights would consist *at the very least* of those rights for which the *same-sex legal recognition consensus* is relatively high:

* legal protections for times of death (such as: tenancy continuation, wrongful death compensation, inheritance, inheritance tax exemption, survivor's pension);

* legal protections for times of other great sadness (such as: next of kin provisions, protection against domestic violence, leave from work in case your partner or your partner's parent is in need of care);

* the right to be able to live in the same country (residence permit for partner); and

<footnote n="44">⁴⁴ ECtHR, 21 July 2015, *Oliari v. Italy*, 18766/11 & 36030/11, par. 174 (see also par. 172, 185). In its later judgment in the case of *Taddeucci & McCall v. Italy*, the ECtHR spoke of “certain essential rights” (30 June 2016, 51362/09, par. 83, 95).</footnote>

<footnote n="45">⁴⁵ See for example ECtHR, 19 February 2013, *X and Others v. Austria*, 19010/07, par. 54; and ECtHR, 30 June 2016, *Taddeucci & McCall v. Italy*, 51362/09, par. 88, 97. In the same-sex marriage case of *Schalk & Kopf v. Austria*, the ECtHR (24 June 2010, 30141/04, par. 31-34) based its description of the “state of relevant legislation in Council of Europe member States” implicitly on content of the report *More and more together* (Waaldijk 2005) that had introduced the methods and many of the questions later used for the *LawsAndFamilies Database*.</footnote>
* the right to take at least some responsibility for each other's children (through parental leave, parental authority, or even second parent adoption).

If the European Court of Human Rights (and other European bodies) would adopt such a definition of mandatory core rights, it would mean that at the beginning only some equality will be required from countries. Of course this will fall short of full equality, but this is how other countries mostly have started. A large majority of the countries surveyed, before giving same-sex couples access to registered partnership or marriage, did actually begin with giving a few rights and responsibilities to such couples. And almost all have since then moved on from core rights to more rights or even to (almost) full equality. The legal recognition of same-sex partners is almost always a process. And that process has to start somewhere.

Before and at the start of this process, countries typically are reluctant to include same-sex couples in the rights and responsibilities that come with different-sex marriage. Given this reluctance or even hostility in such countries, it makes sense for activists, lawmakers and judges to first focus on specific rights (rather than on family status), on rights for bad times (rather than on rights for good times), on partner responsibilities (rather than on partner benefits), on rights for an individual partner (rather than on rights for the couple as a unit), on immigration rights (rather than on parental status), and on partnership registration (rather than on civil marriage). For many countries this will already take a lot of legal and political struggle. However, even small legal steps towards guaranteeing some core rights for same-sex couples, can pave the way for more. A beginning legal recognition can already have a positive effect on social attitudes, and on the social legitimacy of same-sex families. And all this in turn can pave the way for more European countries to give more and more equal rights to same-sex partners. If we look at the data, this is apparently how it works.

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Graupner, H. (2017). *Death and legal family formats in Austria*.

Hiltunen, R. (2017). *Formalisation of legal family formats in Finland*.

Ionescu, I. (2017). *Migration and legal family formats in Romania*.

Katchaunova, A. (2017). *Migration and legal family formats in Bulgaria; Death and legal family formats in Bulgaria*.

Kogovsek Salamon, N. (2017). *Formalisation of legal family formats in Slovenia; Migration and legal family formats in Slovenia; Death and legal family formats in Slovenia*.

Kouzmine, J. (2017). *Formalisation of legal family formats in France*.

Markart, N. (2017). *Parenting and legal family formats in Germany*.

Nikolina, N. (2017b). *Parenting and legal family formats in the Netherlands*.

Otáhal, L. L. (2017). *Formalisation of legal family formats in the Czech Republic; Parenting and legal family formats in the Czech Republic; Splitting up and legal family formats in the Czech Republic*.

Pamplona Córte-Real, C. (2017). *Formalisation of legal family formats in Portugal*.

Plesmid, O. (2017). *Income, troubles and legal family formats in the Czech Republic; Migration and legal family formats in the Czech Republic; Death and legal family formats in the Czech Republic*.

Polgari, E. (2017). *Formalisation of legal family formats in Hungary; Parenting and legal family formats in Hungary; Splitting up and legal family formats in Hungary; Death and legal family formats in Hungary*.

Pudzianowska, D. (2017). *Income, troubles and legal family formats in Poland; Parents Migration and legal family formats in Poland; Migration and legal family formats in Poland*.

Rajgelj, B. (2017). *Income, troubles and legal family formats in Slovenia; Parenting and legal family formats in Slovenia; Splitting up and legal family formats in Slovenia*.

Ronzier, E. (2017). *Parenting and legal family formats in France*.

Smiszek, K. (2017). *Death and legal family formats in Poland*.

Valleala, A. (2017). *Parenting and legal family formats in Finland*.

Walleng, K. (2017). *Death and legal family formats in Sweden*.

Ytterberg, H. (2017). *Parenting and legal family formats in Sweden*.

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<figure><img src="image_8.png" /></figure>
Chapter 3

Same-Sex Couples and Their Legalization
in Europe: Laws and Numbers

<figure><img src="image_9.png" /></figure>

Check for
updates

Clara Cortina and Patrick Festy

**Abstract** We analyse same-sex partnership and family formation in Europe. We explore how the frequency of same-sex marriage or registered partnership can be associated to macro and micro factors and how parenting appears as a key determinant at both levels. We use the LawsAndFamilies Database, which includes both data on legal developments in family laws and statistical data on the legal recognition of same-sex couples, marriage and registered partnership for a large set of countries. We also use the French census and the Spanish household survey for specific purposes. We first determine crude rates of legal recognition for gay, lesbian and different-sex couples for nine European countries in the period 1980–2017. We second consider macro factors by measuring the impact of legal consequences attached to couples’ recognition on the frequency of same-sex marriage or registered partnering. We expect that the opening of parenting to same-sex couples will affect lesbian more than gay couples and result in more positive trends in women’s nuptiality. We finally explore micro factors related to the family structure expecting that the presence of children will work as an incentive to marry.

**Keywords** Marriage · Same-sex couples · Family law · Same-sex family

**3.1 Introduction**

There is an intimate and complex relationship between demography and law which
has its roots in the very sources of population studies. Our discipline has indeed
emerged from the act of compiling the two fundamental physiological events of

C. Cortina (✉)
Universitat Pompeu Fabra, Barcelona, Spain
e-mail: clara.cortina@upf.edu

P. Festy
French Institute for Demographic Studies (INED), Paris, France
e-mail: festy@ined.fr
birth and death in the civil or religious registers that attest to their legal and social
recognition. We often even confuse the object of demography with what civil status
allows us to study, thus including nuptiality, which is a purely social and legal phe-
nomenon. Hence the recurrence of research on the relation between laws and num-
bers (or the evolution of laws and of numbers), which we briefly illustrate with
elements borrowed from European social history.

Throughout the 1970s, a wave of divorce-law reform swept across Western Europe and was accompanied by an increase in the proportion of broken marriages, which was sometimes brutal from one year to the next and always more progressive over the wedding cohorts. These reforms “liberalized” access to divorce through a movement away from divorce-sanction, where marriage stability is an essential norm, in favour of a divorce-report, which only manages the consequences of the break decided by the spouses. The reduction in the ambition of the law makes it possible to keep the whole population in its reach. Statistical analysis showed that the increase in the number of divorces was the result of a complex process. A direct effect reflected distance, not between new and old laws, but between the practice of old laws and that of new laws. It was combined with a symbolic, indirect effect, where the change of reality reverberated with the change in representations of reality and could hardly distinguish broader cultural transformations related to the image of the couple and marriage (Commaille et al. 1983).

A quarter of a century later, the legal and statistical study of the forms of legal-
ization offered to homosexual couples has confirmed both the complexity of the
relationship between law and demography and the possibility of using it to reach the
wellsprings of broad phenomena far beyond the behaviour of homosexuals alone
with regard to marriage. In fact, the factors that encourage homosexual couples to
legalize their union concern not only their own interests, measured by the extent of
the rights opened by the new laws, but all forms of conjugality. More specifically,
the factors that promote or discourage nuptiality, such as the respective weight given
by the welfare state to the couple and the individual, or the legislator's desire to
bring de facto situations closer to legal situations, are factors that affect all couples,
whether homosexual or heterosexual (Festy 2006).

Both studies also showed the time needed to establish family institutions in the practice of populations. That is not new: according to Georges Duby, it took at least two centuries in the Middle Ages for the Catholic Church to impose marriage as a consecrated, clergy-controlled framework at the end of a long conflict in which the new order replaced an older one (Duby 1981).

In the Nordic countries, where the partnership laws offered an experience of
several years in 2006, a gradual increase in the number of registered couples had
begun to bring the behaviour of homosexual couples closer to that of heterosexuals.
This increase was primarily the result of lesbians, whose registration frequency was
lower in the first years of the law. With the passage of time, practices became estab-
lished in the lives of couples without any change in the legislative framework
(Festy 2006).
We resume the analysis of the marriage of same-sex couples in Europe, benefit-
ing from 12 more years of statistical observation and an enriched analysis of the
content of the laws. Over a prolonged period of time, we can now associate the
evolution of the number of marriages with the dynamics of laws and not just a
snapshot of them. The result is a deepening and questioning of the previous conclu-
sions. The impressions we might have had initially will be submitted to a more
systematic verification and measurement of the relationship between the conse-
quences attached to same-sex legalization and the number of marriages or regis-
tered partnership.

However, the effect of the change in the legislative framework is only part of
the explanation of marriage patterns of same-sex couples and the observed differ-
ences from opposite-sex couples. First, it is crucial to introduce a net measure-
ment of nuptiality that relates the number of marriages to the actual number of
couples in order to properly address the marriage propensity issue. We did it in
2006 for all the countries under study, but on the fragile basis of guessed esti-
mates. We come back to the topic, focusing on a limited number of countries with
sound, reliable data and we explore important elements that could explain mar-
riage behaviour and the observed differences between same-sex and opposite sex-
couples. On the one hand, there are the values that each couple attaches to the
institution of marriage in a certain normative social framework. On the other hand,
there are individual characteristics that are associated with a greater susceptibility
to marriage. Finally, there are intermediate elements that could play on the first
two and are, at the same time, variable throughout the life course. This is espe-
cially true of the relationship between the reproductive project and the project of
the couple. The arrival of children, in relation to the existing kinship rights, can
act as an encouragement for the marriage and consequently, couples without chil-
dren would be less inclined to marriage. For this reason, we take into account the
importance of the family dimension, and especially the presence of children, to
better understand the different marriage rates between opposite-sex couples, gay
couples and lesbian couples.

Therefore, the comparative analysis of the crude marriage patterns across Europe
in a context of legal change is complemented in this chapter by tentative efforts to
disentangle two important drivers of marriage propensity. The French data, based
on the annual rounds of census (2005–2017), are introduced in the discussion of
crude marriage rates; they exemplify how to switch from same-sex marriages to
more meaningful and expressive nuptiality rates. In part IV, we introduce the pres-
ence of children as a driver of marriage to be controlled for when analysing partner-
ship status. We then use the 2017 Spanish household survey data to explore the
family determinants of marriage.
## 3.2 Trends in Marriage and Registered Partnership Frequency Throughout Europe

We use crude rates of marriage and/or registered partnership to compare levels and trends in union legalization in European countries that have opened possibilities of legal recognition to same-sex couples. We rely mostly on data collected and published by national statistical institutes.

### 3.2.1 Marriage Rates: Data and Indices

Traditionally, marriages are recorded administratively together with births and deaths and their statistics are generally published as “vital statistics”. The extension to same-sex marriages hardly modifies the processing of statistical data, except for the details of tabulations, which are limited by small numbers (Festy 2007). It may take a couple of years before the process and publication of data on same-sex marriages become routine.

Our collection of data was problematic only in Sweden, where the 2009 law characterized marriage as gender-neutral, thus abolishing any distinction between female, male and heterosexual marriages. Consequently, marriage statistics include the three types of marriages but do not identify them. Special requests had to be made to Statistics Sweden through our colleague Gunnar Andersson (Stockholm University).

The situation of registered partnership is much more diverse in the different countries. A few contrasting examples follow. In the Nordic region and the Netherlands, registered partnership was considered from the beginning as a near equivalent to marriage and the statistics were processed and published apart from those of marriage but along similar lines. In France, the procedure of “pacs” is very different from that of marriage, and so is the process followed by the data; the statistics are published by the Ministry of Justice instead of Insee and they do not benefit from the long tradition of vital statistics. In Germany, the conditions of registration vary from region to region and no statistics have ever been published at national level.

Apart from extreme cases like Germany, published data include minimum details with a distinction between male and female partnerships, which is enough for our purpose. Note that this form of registration in countries like France and the Netherlands also concerns heterosexual partners.

In some countries where marriage is open to same-sex couples, registered partnership is also an option for them. Our objective being the measurement of the frequency of union legalization, whatever its form, we should simultaneously consider data on marriage and registered partnership, with the risk of double-counting essentially couples who first registered their partnership and then transformed it into marriage. It would be necessary to identify these cases and subtract them from the total.
It is possible in France, where “pacs” that are dissolved in order to marry are counted yearly. Similarly, Statistics Sweden identifies among the married those who were previously registered. We could not obtain the same information for Belgium or the Netherlands and we had to restrict our measurement of legalization to marriage frequency, which probably underestimates legal recognition slightly.

One of our main objectives is not only the analysis of the frequency of homo-
sexual marriage or registered partnership, but also the association of this frequency
with the importance of legal consequences attached to marriage or registration. We
will perform the measurement of this association through correlations between
yearly statistical and juridical information for a group of countries where data are
available in both domains. In other words, we retain for our analysis of frequencies
the countries that also provide juridical data. We will detail the latter type of infor-
mation later.

The question is apparently simple: among same-sex couples, what is the propor-
tion of those who choose to legitimize their union through marriage or registered
partnership? The answer implies numbers of marriages or registered partnerships as
a numerator and numbers of gay and lesbian couples as a denominator. The former
has been considered above; they are readily available, at least globally, without
refined breakdowns. The latter are much more problematic, so that very few reliable
estimates exist and still fewer time-series that would be necessary for the production
of trends.

In most censuses or very large surveys, the number of same-sex couples is
grossly overestimated due to errors in the declaration or coding of sex among the
different-sex couples. Let us take this oversimplified example: homosexual couples
are few while heterosexual couples are many, say 1000 against 100,000; errors
about sex are rare, say that one of the partners makes an error in 1 p. 100 of couples.
Among same-sex couples, 10 appear wrongly as heterosexual, which impacts very
little the number of different-sex couples; among heterosexual couples, 1000 are
wrongly classified as homosexual, which implies an overestimate of same-sex cou-
ples by a factor of 2 (Cortina and Festy 2014).

Amendments to the questionnaires or cross-checking sex with first names may eliminate the overestimate of same-sex couples. That has been the case in France where a series of reliable estimates have been provided yearly since 2010. We will use them at a later stage. Another solution is to rely on population registers instead of censuses or very large surveys; people are characterized by their civil status, including sex or gender, rather than being questioned about it; but similarly, they are not questioned about their relation to other persons in the household and the sexual nature of the relation must be guessed. That was done for the Netherlands once; it was not repeated, so no time-series can be calculated (Steenhof and Harmsen 2004).

For the geographical coverage to be wide and for the time-series to be as long as
possible, we had to rely on simpler indices: crude rates that report numbers of mar-
riages and/or registered partnerships to total population instead of the population
directly exposed to risk (i.e., same-sex couples). More precisely, gay marriages and/
or registered partnerships are reported to total male population, and lesbian mar-
riages and/or registered partnerships are reported to total female population.
The immediate meaning of crude rates is much more abstract than the meaning of refined rates, but we have good reasons to think that crude rates may provide a comparative view of levels and trends consistent with the comparative image that would be provided by refined rates. Countries we are dealing with are broadly similar in their demographic structure, for instance, in their degree of population aging, and we may suppose more generally that structural factors do not much affect comparisons based on crude rates. Nevertheless, we will develop the French case and will measure and compare trends in crude and refined rates for recent years below.

When the crude rates of a country are put on a graph for, say, 10 years, the first 2 or 3 years are generally much above any later trend. It is a classical “stock effect”: couples who had been waiting for many years to legalize their union rush into the new law to get married or registered… at last! The overview of trends in Europe is much clearer when these early rates are omitted. This is the case with the graphs shown below.

### 3.2.2 Trends and Levels in Crude Marriage Rates

We have constructed graphs of yearly crude rates for male couples and for female couples; we have complemented our analysis by calculating sex ratios (crude rates for female couples/crude rates for male couples). Nine countries are considered; the Nordic countries are coloured in red (Finland, Norway, Sweden), the western countries in blue (Belgium, France, the Netherlands, the UK or rather England and Wales), the southern countries in green (Portugal, Slovenia). Note that the last group includes only two countries with short time-series; it will be difficult to draw firm conclusions.

Crude male rates are clearly lower in the north than in the west of Europe. Their increase—if any—is slow. Curves in the three countries are also remarkably inter-twined, which points to regional homogeneity (Fig. 3.1).

Rates are clearly higher in western countries and they are also much more diverse. In Belgium and the UK they are twice as high as the Nordic rates, while the Netherlands is in an intermediate position, which is closer to the Nordic group; in all these countries rates are stable. By contrast, crude male rates have risen a lot in France, they have more than doubled in a dozen of years, they are now much higher than anywhere else. In the most recent years, they are four times higher than in Norway or Sweden.

In southern Europe, rates are low: as low as in the north for Portugal, much lower in Slovenia. Time-series are too short to speak about stability (Portugal) or rise (Slovenia).

The graph for crude female rates differs neatly from the previous one for crude male rates (Fig. 3.1).

In the Nordic countries, the rise is substantial and systematic. This is the case for the three countries, and the three curves are quite close: again, the region is homogeneous. The level is slightly lower than in Western Europe, but the distance between the two groups is much more limited for women than it is for men.
Crude MM marriage rate (p. 1000), N, W, S

<figure><img src="image_10.png" /></figure>

Crude FF marriage rate (p. 1000), N, W, S

<figure><img src="image_11.png" /><figcaption>**Fig. 3.1** Crude marriage rates by sex, Europe 1980–2017</figcaption></figure>

Source: own calculation from marriage records and population statistics
See https://www.lawsandfamilies.eu/en/statistical-project/data2/
<figure><img src="image_12.png" /><figcaption>**Fig. 3.2** Sex ratio of marriage rates, Europe 1980–2017</figcaption></figure>

Source: own calculation from marriage records and population statistics
See https://www.lawsandfamilies.eu/en/statistical-project/data2/

Among western countries, the relative homogeneity contrasts with the heterogeneity that characterized western male rates. France hardly differs from its neighbours, except for the most recent years, just after the introduction of marriage.

Crude female rates in the southern countries are clearly lower than anywhere else in Europe. The levels and shapes of the two curves for Portugal and Slovenia are quite similar.

The observations we considered counterintuitive for men are not visible for women: crude rates are increasing almost everywhere; rates in Nordic countries are hardly lower than those in Western Europe; France does not differ substantially from its neighbours.

The contrast between male and female crude rates is magnified by the calculation and graphical representation of sex ratios (crude female rate/crude male rate). The ratio is 1 when crude rates are equal for men and women; it is below 1 when female rates are inferior to male rates; it is over 1 when female rates are superior to male rates. There is a global movement of increase in sex ratios throughout Europe (Fig. 3.2).

In Nordic countries, ratios move rapidly from below 1 (.6 in the late 1990s) to over 1 (more than 1.6 in the 2010s). The increase is spectacular: Finnish ratios are
even occasionally over 2. The up rise may have come to an end, recent ratios oscil-
late around high stable values (1.6–1.8). The curves of the three countries are quite
close to one another, thus confirming the homogeneity of the region. Ratios in any
other European country are inferior.

In Western Europe, ratios have increased much more slowly; they are also more
dispersed, over 1 in the Netherlands (1.2 in 2017), under 1 in France (.8 recently),
around 1 in Belgium and the UK (in fact, England and Wales).

Ratios are still lower in Portugal, despite their increase. Numbers are so small in
Slovenia for gays and lesbians that their ratios are erratic.

There are huge differentials through time in Nordic countries (multiplication by 3 in less than two decades) and large gaps between countries in north, west and south of Europe. Sex ratio is a factor associated to such a large heterogeneity in time and space.

**3.2.3** Discussion

The progressive adoption of laws opening registration of partnership or marriage to same-sex couples in Nordic, and then western and southern countries (with a few exceptions like the early recognition of marriage in Spain) suggests similarities with the second demographic transition and the development of informal cohabitation as an alternative to marriage. The theory interprets the emergence of cohabitation as the consequence of a cultural reaction against traditional male breadwinner marriages (Lesthaeghe and van de Kaa 1986).

But instead of stability in a number of countries, one would have expected a
gradual increase in the popularity of same-sex marriage or registered partnership
everywhere, in conformity with processes of diffusion of social innovations, gener-
ally adopted first by a small minority of well-informed activists and then extended
to larger circles by imitation (Nazio and Blossfeld 2003; Di Giulio and Rosina
2007). This process seems to have been, at best, unsystematic in terms of the adop-
tion of marriage by gay and lesbian couples in each country.

More generally, it is somewhat paradoxical to compare trends and levels in same-
sex marriage to those in cohabitation, an alternative to different-sex marriage. It
might be more appropriate to refer same-sex to different-sex marriages. The latter
offer a longer time perspective than the former for obvious reasons. Our graph starts
in 1980 and evidences a global decline of heterosexual nuptiality. It is one of the
main symptoms of the second demographic transition.

The decline in nuptiality together with the introduction of same-sex registered
partnership has pushed a polemist to announce the end of marriage as a conse-
quence of the legalization of gay and lesbian unions (Stanley Kurtz). But different-
sex marriage rates had started decreasing well before the legal formalisation of
homosexual couples, a movement initiated by Denmark in 1989. We cannot even
discern an acceleration in nuptiality decline. On the contrary, crude rates in Nordic
<figure><img src="image_13.png" /><figcaption>**Fig. 3.3** Crude marriage rates, Europe 1980–2017</figcaption></figure>

Source: own calculation from marriage records and population statistics

countries have gone through a remarkable reversal of trend at the end of the twentieth century, so that an unexpected rise in heterosexual nuptiality parallels the slow increase in gay marriage rates and the more rapid movement in lesbian marriages. Some analysts interpret it as a spiritual revival that temporarily contradicts the theory behind the second demographic transition.

But this is only an exception. In general, same-sex and different-sex marriage evolve in opposite directions (Fig. 3.3). The correlation with gay marriage rates is negative ($r = -0,36$); with lesbian marriage rates it is close to zero ($r = -0,12$). The absence of positive correlation between trends and levels in same-sex and different-sex marriage rates suggests that factors classically associated with the second demographic transition are not relevant for a contextual explanation of homosexual marriage rates in Europe. We will have a look at other contextual factors in the discussion of part 3.2.

France is the country with the largest increase in crude marriage rates for gays as well as lesbians. Male crude rates experience a rise from 0.1 p.1000 in 2005 to more than twice as much in 2017. Female rates follow the same pattern, but at lower levels, from 0.06 to 0.17. The gap between men and women is gradually reduced. The trend is steeper in France than anywhere else in Europe. Note a temporary decrease in 2011–2012, just before the extension of marriage to homosexuals in 2013. It may
reflect a waiting behaviour of couples who preferred to run directly into marriage in 2013 rather than “pacsing” first in 2011–2012 and then switching to marriage. It may also result from a temporary deterioration of pacs registration when the procedure is partly transferred from courts to notaries.

Trends in crude rates can be due to changes in the number of gay and lesbian couples or to changes in the frequency of “marriage” among these couples. E.g., a rise in crude MM rates may result from an intensification in the formation of gay couples or an increase in the proportion of couples who legitimize their union. The disentangling of the two dimensions is only possible if reliable estimates of the numbers of gay and lesbian couples are available periodically, in the best case on a yearly basis. It is the case in France thanks to the annual rounds of census, despite classical pitfalls in this kind of data, mainly faulty declarations of sex by heterosexual couples. The number of “true” couples has been reconstituted since 2010 through the use of first names. The comparison of “true” couples and “apparent” couples in 2010–2011 has offered us the possibility of a backward estimate starting in 2005 and a complete time-series from 2005 to 2017 (Algava and Hallépée 2018).

Refined rates can be calculated and compared to crude rates. They tell a different story. From 2005 to 2017, there is hardly any rise in male rates, which went from .89 to .92, except for temporary ups and downs. The increase is slightly more important in female rates, which went from 0.89 to 1.10 and, more noticeably the frequency of lesbian marriages is continuously higher than that of gays and the gap increases between the two (Fig. 3.4).

In other words, the marked increase in French crude rates must be attributed to a rise in gay and lesbian couple formation, not to an intensification of nuptiality among these couples. Higher crude rates for men than women, sex ratios below 1, must be attributed to more numerous couples among gays than lesbians, not to the more intense nuptiality of gay couples. These conclusions, although limited to one country, will be on our mind when we interpret the association of trends and levels in crude rates with legal variables.

Referring marriages to couples opens the way to comparisons between same-sex and different-sex nuptiality. We concentrate on France in 2011, when a large survey was associated with the yearly census so as to give reliable information on couples, same-sex as well as different-sex; cohabiting and living apart partners are enumerated together (Buisson and Lapinte 2013).

A large majority of heterosexual couples were married or pacsed (77%), as compared with a minority of homosexual couples, only 47% of gay couples and 38% of lesbian couples were pacsed.

That may give the impression that different-sex couples legalize their union more frequently than same-sex. But this observation is misleading, essentially because heterosexuals have a longer history behind them, with more opportunities to marry or pacs than homosexuals.
France. Crude rates (p.1000) and refined rates

<figure><img src="image_14.png" /><figcaption>**Fig. 3.4** Crude and refined marriage rates by sex. France 1999–2017</figcaption></figure>

Source: own calculation from marriage records and population statistics

A fair view of the propensity to pacs or marry is obtained by relating pacs or marriages in a given year (2011) to the number of unmarried and unpacsed couples, different-sex and same-sex being equally “exposed to the risk of legalization”. In these circumstances, specific rates are higher for homosexuals than heterosexuals, although the latter have the possibility to pacs OR marry while homosexuals are only entitled to pacs. Specific rates are almost similar for unpacsed gay and lesbian couples (respectively .133 and .131) and somewhat above specific rates for unpacsed and unmarried heterosexual couples (.098).

The French case brings two elements into the discussion: couples’ nuptiality plays little role in the development of same-sex crude marriage rates and it is much higher than heterosexual nuptiality. These observations cannot be extended to other countries—France is also characterized by very high crude marriage rates, especially among gays—but they do confirm that trends and levels in same-sex and different-sex marriage depend on different determinants and react independently of one another. In particular, the factors associated with the second demographic transition, which are closely related to Ron Inglehart’s concept of “post-materialism”, are relevant for heterosexual marriage decline, but are probably useless to explain homosexual nuptiality.
## 3.3 Trends in Legal Consequences Attached to Marriage or Registered Partnership

Legal recognition of same-sex couples opens up legal consequences inferior or equal to consequences opened up by heterosexual marriage. Here we measure positive legal consequences and establish their levels and trends in the same 9 countries to which we referred in the first part. We then try to answer this question: Is the frequency of same-sex legal recognition correlated with the level of legal consequences attached to recognition?

### 3.3.1 On Legal Scores

In the LawsAndFamilies Database 60 questions have been addressed to legal experts in each European country about possible consequences attached to each conjugal form (marriage, registered partnership or cohabitation, same-sex or different-sex). E.g., “Can a relationship of this type result in lower income tax than for two individuals without a partner?” or “Does a relationship of this type make it easier for a foreign partner to obtain citizenship?” Here we use the 25 questions about positive legal consequences that were selected by Waaldijk (2017). In the Database, the answers given by the legal experts were coded by them as “Yes”, “Yes but with restrictions”, “No except in some cases” or “No” (Waaldijk et al. 2017). Here these answer codes are numbered respectively 3, 2, 1 and 0. Global scores for several questions result from additions. Global scores for same-sex forms are compared with global scores for different-sex marriages. The index is 1 if homosexual couples get as high a score as married heterosexuals; it is below 1 if legal consequences attached to same-sex registered partnership or marriage are inferior to those attached to different-sex marriage.

For each country, every year we retain the score obtained by the most positive same-sex status available at that moment. It implies switching from one status to the other when a new conjugal format is introduced, e.g., from registered partnership to marriage when same-sex marriage becomes possible and offers couples new advantages.

### 3.3.2 Trends and Levels of Legal Scores

In every country the global score increases over time: legal consequences attached to the best status offered to same-sex couples are gradually enlarged and look more and more like those attached to heterosexual marriage. For instance in Norway and Sweden, the early introduction of registered partnership offers homosexual couples
<figure><img src="image_15.png" /><figcaption>**Fig. 3.5** Legal index (all consequences), Europe 1990–2017</figcaption></figure>

Source: own calculation

at least 80% of rights associated with different-sex marriage; that score is later
improved when the country moves to same-sex marriage (Norway 2009) or even
before, through reform of registered partnership (Sweden). Very recently, the index
culminates over 96% in Norway and over 98% in Sweden. Finland has experienced
the same kind of trajectory but has reached “only” 89% (Fig. 3.5).

Western countries are more dispersed. In the Netherlands, registered partnership and then marriage have immediately offered same-sex couples 95% of the rights granted to married heterosexuals and the percentage has even risen to 100% since 2014. At the other extreme, pacs in France opened to same-sex couples less than 60% of legal consequences attached to heterosexual marriage; only the opening of marriage to homosexual couples in 2013 brought that percentage to 90%. Belgium and the UK are in intermediate positions but have recently reached percentages that are very close (UK) or even equal (Belgium) to 1.

Southern countries lag well behind: their short histories culminate at relatively low levels (Portugal 80%; Slovenia 65%).

In brief, Nordic countries like Norway or Sweden open the way to a continuous
enlargement of rights offered to same-sex couples; some western countries like the
Netherlands accompany the movement while others, like France, follow it with a
delay; southern countries lag far behind.
Similarities between trends and levels in marriage rates on one hand and in legal indices on the other hand suggest the existence of a relationship between them. Dissimilarities point to no relationship.

Curves of male rates differ radically from those for legal consequences: stability in most curves instead of a systematic rise, a low level in Nordic countries compared to western countries instead of the reverse. By contrast, there are marked similarities between trends and levels in legal rights and sex ratios: all the curves increase, Nordic countries come first followed by western countries while southern Europe lags behind. There are also common traits for curves of lesbian rates, but these are less clear.

The calculation of coefficients of correlation through the ordinary least square (OLS) method confirms the visual impressions. Correlation is null with frequencies of gay marriage (.01), moderate with lesbian marriages (.34) and stronger with sex ratios (.49).

To better understand the meaning of any relationship between marriage rates and legal consequences attached to same-sex marriage, we have divided the latter into subgroups (material consequences, parenting, migration, other non-material consequences) and we have calculated scores following the same procedure as previously, with the consequences attached to heterosexual marriage as a reference. The first two subgroups offer the most illustrative results (Table 3.1).

The path followed by material consequences is very different from that previously described for all legal consequences. In all the Nordic countries but also in the Netherlands and Portugal, same-sex marriage or registered partnership offers the same material advantages as different-sex marriage as soon as union legalization becomes possible. Only Belgium, France, the UK and Slovenia evidence a progressive enlargement of material consequences opened to same-sex couples. For instance, in France, consequences attached to pacs were initially very restrictive; they were then enlarged and finally marriage put same-sex and different-sex couples on a par (Fig. 3.6).

This image of material consequences is also very different from those of rates and sex ratios. Coefficients of correlation are close to zero for women; they are negative for men (gay marriages are infrequent in the Nordic countries despite “generous” material rights); they are moderate for sex ratios.

On the contrary, parenting consequences have some similarities with all consequences. The major difference is the much lower initial level, even in pioneering countries like Norway or Sweden, but also in Belgium or France; it is followed by

<table><caption>**Table 3.1** Correlation coefficients of legal scores and marriage indicators</caption><thead><tr><th colspan="3">All questions (25)</th><th colspan="3">Parenting questions (6)</th><th colspan="3">Material questions (9)</th></tr><tr><th>MM rates</th><th>FF rates</th><th>Sex ratios</th><th>MM rates</th><th>FF rates</th><th>Sex ratios</th><th>MM rates</th><th>FF rates</th><th>Sex ratios</th></tr></thead><tbody><tr><td>0,007</td><td>0,341</td><td>0,492</td><td>0,127</td><td>0,529</td><td>0,588</td><td>-0,322</td><td>-0,037</td><td>0,386</td></tr></tbody></table>

Source: Own calculation
Parenting, Index

<figure><img src="image_16.png" /></figure>

Material consequences, Index

<figure><img src="image_17.png" /><figcaption>**Fig. 3.6** Parenting and material consequences indexes, Europe 1990–2017</figcaption></figure>

Source: own calculation
ample movements of aggiornamento that bring same-sex couples closer to hetero-
sexual couples. Sweden's position in the forefront has been recently challenged by
western countries like Belgium, the Netherlands and the UK, and, even more
recently, by Portugal in the south.

Coefficients of correlation are clearly higher than those previously measured on all legal consequences. They remain weak for men (.13), but substantial for women (.53) and sex ratios (.59). The distance between gays and lesbians is important once again and is well summarized by the association of parenting consequences and sex ratios.

The coefficients measure the distance between bunches of curves characterized by trends and levels of national rates and scores. We emphasize comparisons of levels by focusing on a short period of time: 2011–2015. The correlation between parenting and sex ratios is slightly reduced (.53 instead of .59). The emphasis is put on time trends if we focus on specific groups of countries, e.g. northern or western. This time, the correlation is markedly increased: it is .71 or .81 respectively.

The distance between frequencies of gay and lesbian marriages is associated with parenting issues more than with other dimensions of the law. The enlargement of consequences attached to marriage in each country plays a more decisive role than differences between countries in the openness of national laws. In other words, the dynamics of laws in various countries on aspects of parenting is associated with the dynamics of lesbian marriages, not with those of gay marriages. This is reflected in a common movement towards increased sex ratios at various levels.

Let us first remind the reader that our analysis relies on country-level informa-
tion on the content and consequences of laws and the number and rates of mar-
riages, not on individual-level data. The second reminder is that both variables—legal
scores and rates—are dated, so that a dynamic process is captured, not a static snap-
shot. The results must be read this way: lesbian marriage rates are higher, and their
rise is steeper in countries where the legal consequences attached to marriage are
broader and their development more rapid. There is no such association for gays.
Among the different domains covered by marriage laws, those concerning parenting
are essentially responsible for this divergence between women and men. The other
domains are not relevant.

In a context of continuous enlargement of legal consequences attached to gay
and lesbian marriages, the divergent trends among men and women result in an
increase of sex ratios, which tend towards the dominance of female over male mar-
riages. As homosexual and heterosexual marriages gradually open to similar conse-
quences, in particular for parenting, sex ratios will tend to a limit; they appear to do
so in the most advanced countries, the Nordic ones. It will be important to check
whether lesbian couples are far more numerous than gay couples or if women in
couples legalize their union more often than gay couples.
### 3.3.3 Discussion

The results presented so far confirm and add precision to those we had obtained previously. They confirm that the impact of legislation on marriage rates has its origin in parenting dimensions of the laws and essentially concerns women. They are more precise because they rely on longer time-series of marriage rates associated with an innovative analysis of the dynamics of law content, which makes possible a correlation between two processes rather than between two snapshots: levels and trends in marriage rates together with levels and trends in law variables.

It has been possible to show that the impact of changes in laws was reflected with no delay in changes in marriage rates. This is true even after the very first years after the introduction of registered partnership or marriage were eliminated, when couples who were expecting that the law would be passed rushed into it. Further legal changes create a similar, though less spectacular movement.

However, the French case, which is developed above, suggests a caveat: an increase in crude marriage rates may be due not only to more marriages among existing same-sex couples, but also to an acceleration in the formation of new couples. An extension of consequences attached to registered partnership or marriage may incentivize same-sex partners to come out and live together, in particular lesbian partners.

The association of levels and trends in crude marriage rates and legal content in a number of countries is a direct application of Durkheim's "sociological method", which is based on (international) comparisons and the analysis of "variations concomitantes": "nous n'avons qu'un moyen de démontrer qu'un phénomène est cause d'un autre, c'est de comparer les cas où ils sont simultanément présents ou absents et de chercher si les variations qu'ils présentent dans ces différentes combinaisons de circonstances témoignent que l'un dépend de l'autre." (Durkheim 1894).

Here we have established that female marriage rates are higher in countries that grant more parental facilities, which is a relationship between macro data. It raises two questions: Can we take it for granted that the content of the law influences the number of marriages or do we need to identify a third variable that simultaneously impacts the extent of the laws concerning parenting? And if we fail on the latter issue, can we switch from a macro to a micro formulation and evidence that parents marry more frequently?

For instance, we may assume and can check whether women's empowerment could have contributed to the adoption of laws favouring homoparenting and if it can be associated with the increase in the female marriage rate. Some researchers have assumed that the societies which are the most advanced in their movement towards gender equality benefited from an increase in fertility that contradicted the fertility decline dimension of the second demographic transition. This movement has some similarities with the recent increase in crude different-sex marriage rate in the Nordic countries described above (Myrskylä et al. 2009, 2011).
We measure gender equality through the Women's Political Empowerment Index (WPEI), which is based on yearly information concerning women's civil liberties, civil society participation and political participation, which offers long series of data for the 9 countries we examine. It was used recently to challenge Myrskylä's hypothesis (Kolk 2019; Sundström et al. 2017).

The coefficients of correlation do not confirm the assumption: WPEI is neither associated with the parenting index ($r = -0,31$) nor with female marriage crude rates ($r = -19$). We are left with the other assumption: in the next section, we will see whether higher rates in parent-friendly countries imply that same-sex parents do marry more frequently than non-parents.

## 3.4 Parenting and Same-Sex Nuptiality

The sociology of the family has done a good job of establishing the patterns and trends of non-marital cohabitation in Western societies (Kiernan 2001). The diffusion of unmarried couples and the normalization of having children outside marriage are related to the diversity of cohabitation typologies and to the complementarity of several profiles of cohabiters. These profiles range from young cohabiters who understand cohabitation as a trial period before marriage and exclude childbearing from their partnership project to older cohabiters who understand their partnership as a stable and committed relationship and whose fertility intentions do not differ significantly from those of married spouses (Hekel and Castro-Martín 2014). The differences in the stability and risk of union dissolution of marriages and cohabitations have also been explored (Axinn and Thornton 1992). Recent evidence has indicated that dissolution rates are higher for same-sex cohabitations than for different-sex cohabitations and marital unions but that the demographic determinants of union stability are rather similar among the different types of couples (Lau 2012; Manning et al. 2016).

Scholars have also more recently considered the reasons for getting married in contexts in which cohabitation is widespread and increasingly similar to marriage in terms of the rights accorded to the partners (Manning and Smock 1995). While some outline the importance of feelings (Billari and Liefbroer 2016), others refer to more material dimensions, such as class or socio-economic status (Manning and Smock 1995).

Interestingly enough, some researches based on qualitative evidence have tried to explore the specificities of the incentives for and barriers to same-sex marriage (Pichardo 2011). The list of potential factors operating as incentives includes: (i) considering marriage to be an act of activism; (ii) marriage as an asset protection; (iii) protection in case of the death of one of the members of the couple; (iv) adoption of children of one of the spouses by the other; (v) regularization of the immigrant spouse for social recognition for the couple relationship. In contrast, the
barriers to marriage might be associated with (i) the social rejection that condemns discretion; (ii) the intent to adopt from abroad, where it is easier for a single person than for a homosexual couple; (iii) values that are antithetical to marriage, considering it a patriarchal and non-egalitarian institution with religious connotations.

The need to better understand the family-related attitudes and expectations of gays and lesbians emerges from this list of incentives and barriers. A recent study that uses German survey data shows that gays and lesbians expect fewer benefits and greater costs of being in a partnership than heterosexuals but at the same time they do not find differences in the expectations about parenthood according to sexual orientation. The authors think that same-sex parenthood attitudes might be affected by the fact that same-sex parenting is still not that common and that hetero-normative values are more determinant than experience (Hank and Wetzel 2018).

Our main goal here is to do a nuptiality analysis and to explore the main individual and family determinants of marriage by comparing same-sex and opposite-sex couples. Building on the assumption that fertility levels and family structure differ considerably between these two types of couples, we are specifically interested in analysing whether the higher or lower presence of children in the household (either the progeny of the two partners or children from previous relationships) is associated with the partnership status of the different types of couples.

### 3.4.1 Same-Sex and Opposite-Sex Nuptiality in Spain

In order to carry out a comparative analysis of the nuptiality of same-sex and opposite-sex couples, we selected the Spanish case and we use data from 2017, which means 12 years after same-sex marriage was legal in Spain in 2005. We think that such a period is long enough to address the issue of the impact of rights expansion such as marriage and parenting on demographic behaviours. In addition to this wide period of observation with the marital option available, the choice of the Spanish case is also related to the dramatic transformation of family dynamics and attitudes towards family change. Specifically, union formation patterns have changed in Spain through the diffusion of non-marital cohabitation as a regular path to family formation (Domínguez-Folgueras and Castro-Martín 2013).

Spain offers statistical sources of exceptional value for studying same-sex families, namely the last two population censuses, those of 2001 and 2011. These make it possible to identify and recount same-sex couples who live in the same household and who are self-identified as spouses. These sources are now updated through a large Household Survey (Encuesta Continua de Hogares) which has been implemented annually since 2014 by the Spanish Statistical Institute (INE). For 2017, which is the last year available, the total sample size of the survey was 259.628 individuals, out of which 806 have a partner of the same sex. Unfortunately, Spain
<table><caption>**Table 3.2** Distribution of partnered individuals by type of couple and partnership status, Spain 2017</caption><thead><tr><th></th><th>% Married</th><th>% Non-marital cohabitation</th><th>Total</th></tr></thead><tbody><tr><td>Opposite-sex</td><td>86%</td><td>14%</td><td>11,135,140</td></tr><tr><td>Same-sex male</td><td>56%</td><td>44%</td><td>113,324</td></tr><tr><td>Same-sex female</td><td>55%</td><td>45%</td><td>60,907</td></tr></tbody></table>

Source: Spanish Household Survey, INE. Note: weighted data

<table><caption>**Table 3.3** Distribution of partnered individuals by type of couple and family structure (presence of children), Spain 2017</caption><thead><tr><th></th><th>No children</th><th>Common children</th><th>Non-common children</th><th>Total</th></tr></thead><tbody><tr><td>Opposite-sex</td><td>38%</td><td>59%</td><td>3%</td><td>11,135,139</td></tr><tr><td>Same-sex male</td><td>98%</td><td>2%</td><td>0.4%</td><td>113,324</td></tr><tr><td>Same-sex female</td><td>82%</td><td>11%</td><td>6%</td><td>60,908</td></tr></tbody></table>

Source: Spanish Household Survey, INE

Note: weighted data

does not have a unique and centralized register of partnerships, which implies that the analysis cannot be expanded to registered partnerships and has to be limited to unions formalized through marriage.

The primary variable of interest in our analysis is the type of couple based on the gender of the spouses: opposite sex, same sex male (two men), same sex female (two women); this information is obtained via reciprocal identification of the spouse or partner from the members of the household. This system is not free from problems, given that an incorrect declaration of the gender of the household members may affect the identification of the couples (O'Connell and Feliz 2011). The second relevant variable for the analysis is the partnership status: married or unmarried. An important characteristic of the household (family structure) is also considered: the presence of children. In our analysis, we also control for some individual demographic characteristics of the partners (age and educational level) and additional characteristics of the couples.

As shown in Table 3.2, the proportion of married couples clearly differs by type of union. In 2017 in Spain 14% of the total opposite-sex couples were cohabiting outside marriage while this proportion was around 45% for same-sex couples. These crude proportions are obviously affected by the socio-demographic composition and therefore we ran a logistic regression analysis to explore the probability of cohabiting outside marriage. One of the main reasons to do so is the remarkable difference in the family structures of each type of couple. As shown in Table 3.3, the large majority of opposite-sex couples of all ages have co-residing children (either common or not common, that is, coming from previous relationships and thus form-
<table><caption>**Table 3.4** Logistic regression models on the partnership status (non-marital union vs. marriage) by type of couple, Spain 2017 (odds ratio)</caption><thead><tr><th></th><th>Bivariate</th><th>Multivariate</th></tr></thead><tbody><tr><td>Type of couple</td><td></td><td></td></tr><tr><td>Opposite sex (ref.)</td><td>1</td><td>1</td></tr><tr><td>Same-sex male</td><td>4.8**</td><td>2.1**</td></tr><tr><td>Same-sex female</td><td>5.0**</td><td>2.1**</td></tr><tr><td>Constant</td><td>-1.805</td><td>4.057</td></tr><tr><td>N</td><td>64,872</td><td>64,872</td></tr><tr><td>Log likelihood</td><td>14349119.3</td><td>18,374,986</td></tr></tbody></table>

Source: Spanish Household Survey, INE

Note: Sample not weighted

Note: the multivariate model includes the following variables: age, educational level, family structure (the presence of children), citizenship combination of the partners

ing step-families), around 62%. However, the presence of children is less common for same-sex couples, with a clear gender differential: 17% for lesbians and only 2.4% for gays, in line with what we observe in other Western countries (Andersson et al. 2006).

The results of the logistic regression indicate that the probability of cohabiting outside marriage is 5 times greater for same-sex couples as opposed to opposite sex couples (Table 3.4). When controlling for the characteristics of the couples which have been found to be positively associated with marriage (especially the presence of children in the household), the relationship of the probability is reduced by more than half: 2 times greater for both men and women. These results are in line with previous analysis conducted with the 2011 census (Cortina 2016), where the probabilities of cohabitation were higher (around 4 in the bivariate and around 3–4 in the multivariate), which is to be expected because marriage had been an option for a shorter period at that time.

If we analyse the individual and family determinants in detail (Table 3.5. and Fig. 3.7), we observe that the probability of being married increases with age and is higher for those partners holding a university degree, while it decreases when the two spouses have different citizenships (Table 3.5). Once these individual and couple characteristics are taken into account, the effect of family composition (having children or not) in interaction with the type of couple emerges as a key factor. As the margins plot clearly shows (Fig. 3.7), when the couple does not have children, the likelihood of being married is clearly higher for opposite-sex couples than for same-sex couples. However, when they have children there is no significant difference. The same predicted probabilities also indicate that there are no differences between gays and lesbians.

The analysis of the partnership status of the same-sex couples compared to the opposite-sex ones offers two major conclusions: (1) same-sex couples marry less due to a compositional issue: they have fewer children and couples without children are less likely to be married or more likely to cohabit; (2) when couples have chil-