Recognition of families without marriage by the European Court of Human Rights
Interview with Prof. Stanislovas TOMAS, PhD (Sorbonne), advocate practicing in Sark, Russia, Ukraine and Moldova
Q: Does the European Court of Human Rights, contrary to Monaco, recognise a couple without a marriage as a family?
A: Yes, for the first time the Court has recognised an unmarried couple as a family in case Johnson et al v Ireland (series A n° 112, §56, p. 25). In the case Keegan v Ireland, 16969/90, § 44, the Court has further explained: “the notion of the "family" in this provision is not confined solely to marriage-based relationships and may encompass other de facto "family" ties where the parties are living together outside of marriage (see, inter alia, the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 25, para. 55).” It is underlined in the case law that an unmarried family needs a particular protection.
Q: When one may say that the couple has created a de facto family?
A: In § 45 of the same judgment the Court has recognised that a co-habitation of two years shall be considered as a family. In another case, S v UK, 11716/85, the judges made an explanation that presence of kids is not necessary for a qualification as a de facto family. In fact, a couple may be recognised as a family even without cohabitation (Vallianatos, 29381/09, §§ 49 and 73).
Q: What pecuniary (material) rights are covered upon separation of a de facto family?
In § 81 of the judgment Vallianatos et al v Greece, 29381/09, the Court has explained that in a case of unmarried family based on stable and committed relationship, the couple should be protected by such pecuniary rights as “property, maintenance and inheritance”, and this should be done not in their quality “as private individuals entering into contracts under the ordinary law but on the basis of the legal rules governing civil unions, thus having their relationship officially recognised by the State”.
The European Court of Human Rights has repeated the same idea in § 169 of the judgment Oliari et al v Italy, 18766/11, by stating that the Government has “to provide for some basic needs which are fundamental to the regulation of a relationship between a couple in a stable and committed relationship, such as, inter alia, the mutual rights and obligations they have towards each other, including moral and material support, maintenance obligations and inheritance rights (compare Vallianatos, § 81 in fine, and Schalk and Kopf, § 109, both cited above).” Furthermore, the Court has explained that these rights are “core rights relevant to a couple in a stable and committed partnership” (§ 174).
Q: Would it be possible to win a case concerning a separation of a de facto family in Monaco despite absence of any legislation in this sense?
A: I believe that Monaco is a country of European tradition, and that its judges would not provoke a direct conflict with the case law of the European Court of Human Rights. My prediction is quite positive.
Interview taken by ICDAMonaco on 10 January 2018