IN November 2008, Greek Law No. 3719/2008, Reforms Concerning the Family, Children and Society, came into force. Amongst its provisions, it created state-recognised partnerships between two adults of different sexes called “civil unions” (σύμφωνο συμβίωσης). Civil unions were designed to offer couples who did not wish to marry an alternative, more flexible legal framework for their relationships. The legal consequences of civil unions include the regulation of property rights, paternity, parental responsibility, inheritance and maintenance payments in the event that the union be dissolved. There was a particular focus in the Law's explanatory report on the protection of children born outside of marriage, and of women (particularly mothers) who might be left with inadequate support after lengthy periods of non-marital cohabitation. Same-sex couples were excluded from the scope of civil unions, despite passionate debate during and after the parliamentary process about this issue.

In Vallianatos and others v Greece (Application nos. 29381/09 and 32684/09), 7 November 2013, the Grand Chamber of the European Court of Human Rights heard a challenge to this law brought by four same-sex couples. The principal claim was that, by excluding same-sex couples from its scope, the law violated Article 8 (the right to respect for private and family life) taken together with Article 14 (non-discrimination in the enjoyment of Convention rights) of the European Convention.

Since the law in question was undeniably discriminatory on the ground of sexual orientation, the only question was whether that discrimination could be justified. The Grand Chamber reiterated its long-held view (see, for example, Smith and Grady v the United Kingdom (Application nos. 33985 and 33986) (2000) 29 E.H.R.R. 493 at [89]) that, as with sex discrimination, sexual orientation discrimination requires “particularly convincing and weighty reasons” by way of justification, and that in this context “the State's margin of appreciation is narrow” (at [77]).

The Greek Government argued that its policy was justified on two bases. The first was that same-sex couples could already avail themselves of the rights and protections that civil unions offered by using private contracts. It was never made clear why different-sex couples could not do that as well, thus undermining any basis for the law's existence at all. The answer may lie in the provisions relating to children, though the fact that same-sex couples sometimes have and raise children might be thought to undermine the validity of such a distinction. This argument was given short shrift by the Court. The Grand Chamber took the view that officially recognised “statuses” such as civil unions “have an intrinsic value for [people who enter into them] irrespective of the legal effects, however narrow or extensive, that they would produce”, in particular in terms of “having their relationship officially recognised by the State” (at [81]). Presumably it is only a matter of time before an applicant challenging the validity of laws restricting marriage to different-sex couples in those states where that remains the case is brought on the basis of this “intrinsic value”.

The Greek Government's second argument was that the legislation was “designed to achieve several goals: protecting children born outside marriage, protecting single-parent families … , responding to the wishes of parents to raise their children without being obliged to marry and, ultimately, strengthening the institutions of marriage and the family in the traditional sense” (at [80]). The Grand Chamber accepted that protection of the family could be a legitimate aim but said that, given the context of sexual orientation discrimination, the burden was on the Government to show that it was “necessary” to exclude same-sex couples from entering into civil unions (at [85]).

The Grand Chamber pointed out that the law went far beyond issues to do with children and dealt in addition with the “living arrangements” of couples who entered into civil unions (at [86]). In any case, civil unions were not restricted to those different-sex couples who had children, and the Grand Chamber thought there to be no justification for treating childless couples differently based on their sexual orientation. The court also thought that, in so far as the law was aimed at protecting children, it would have been possible to devise a scheme dealing with children “while at the same time extending to same-sex couples the general possibility of entering into a civil union” (at [89]). Finally, it was noted that whereas different-sex couples already had the ability to have their relationships legally recognised through marriage, same-sex couples in Greece did not, which gave them “a particular interest in entering into a civil union since it would afford them, unlike different-sex couples, the sole basis in Greek law on which to have their relationship legally recognised” (at [90]). Consequently, the Grand Chamber concluded that there had been a violation of Article 8 taken together with Article 14.

Three issues might be thought to arise from the Vallianatos judgment. The first is the affirmation at Grand Chamber level of the view expressed by the First Chamber in Schalk and Kopf v Austria (Application no. 30141/04) [2011] 2 F.C.R. 650 at [94] (noted [2010] C.L.J. 463) that different-sex couples are able to enjoy both “private life” and “family life” under Article 8 of the European Convention (at [73]). Moreover, it affirmed that the important characteristic of an intimate relationship that brings it within the scope of Article 8 is “stability”. Consequently, the fact that, “for professional and social reasons”, one of the couples in question did not cohabit did not mean that they were outside the scope of Article 8, because their relationship was personally and financially inter-dependent. The Grand Chamber's view was that “the fact of not cohabiting does not deprive the couples concerned of the stability which brings them within the scope of family life” (at [73]). The phenomenon of “living apart together” has been recognised by scholars for some years (see J. Haskey and J. Lewis, (2006) 2 International Journal of Law in Context 37), but there has been political resistance to the recognition of such people as a group for legal purposes. (Conservative MP David Davis once described such people as “pretend[ing] to live apart – the notorious ‘living apart together’ scam” and as “ly[ing] about their status” for tax purposes: see D. Davis, “Marriage Wasn't a Choice for my Mother”, The Observer, 24 January 2010.) The use of stability as the touchstone of family life has potentially wide-reaching consequences.

The second point arising from the Grand Chamber's judgment is the emphasis that was placed on the increasing recognition of same-sex relationships by countries within the Council of Europe. While the court was clear that no consensus yet existed, it was possible to see that:

Indeed, despite this judgment post-dating the passage of the Marriage (Same-Sex Couples) Act 2013, England and Wales was not included in the Grand Chamber's list of countries which recognise same-sex marriages, so the evidence in support of the trend identified is in fact stronger than the judges thought. It may be that the Grand Chamber was here laying the ground work for a later decision whose time has not quite come regarding a positive obligation to provide state recognition and legal protections for same-sex relationships with the Council of Europe member states.

Finally, it may be that the Vallianatos judgment has implications for the review currently being undertaken in England and Wales about the future of civil partnerships here following the passage of the Marriage (Same-Sex Couples) Act 2013. It might be difficult to justify continuing to have civil partnerships only for same-sex couples, now that both same-sex and different-sex couples can marry. As a form of sexual orientation discrimination, the policy would need particularly convincing and weighty reasons, in short showing that it was necessary to exclude different-sex couples from entering into civil partnerships. It is difficult to see how such an argument would be made convincingly.