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The question around homosexual marriages is widely discussed these days. We
think that it is a high time to consider this question and its different sides
and implications and to express our stand at the end of 2004.
The situation around the world
Everything started in Europe. Denmark was the first state to partly legalize
same sex marriages in 1989, but the country opted for only limited rights
which had negligent legal implications. Around Europe, the wave rose at the
beginning of the Third Millennium. On the April, 1st 2001, the Netherlands
legalized same sex marriages giving full legal and social rights equal to
those of the traditional marriages. The Germans quickly followed suit and
legalized same sex marriages, but those had a very strange statute. You could
marry, but all your rights ended up with acknowledging your union. Nothing
else! Belgium placed on equal footing same sex marriages with the traditional
ones on the January, 30th 2003. Norway, Iceland, and Sweden allow for the so
called ?registered partnerships? which gave extensive legal rights to the same
sex couples that registered their partnerships. Sweden even allows these
couples to adopt children. The Swiss canton Zurich allows the so called civic
unions, but there is no further development on a national level. The situation
in France is quite unclear as there are some statutes under the law which
allow same sex marriages endowing the couples with severely cut legal rights.
There were only two same sex marriages in 2004 and one of them has been
declared invalid. In 2003, Great Britain proposed a bill for civic partnerships which carry rights almost identical to those of traditional
marriages, but the bill still awaits discussion in both Chambers. In Ireland,
there is a discussion on defending the rights of cohabiting partners, no
matter of their sex. Spain also makes its first steps toward legalizing same
sex marriages as there is a draft billed in. The future Act foresees
equalizing same sex marriages with traditional ones the same way as in Denmark
and Belgium.
The situation is not that optimistic outside of Europe. Canada is a leader in
this direction. And everything points to the fact that Canada is a global
leader. The rights of same sex marriages and heterosexual marriages are
entirely equalized in five provinces:
- Ontario (June, 10th 2003)
- British Columbia (July, 8th 2003)
- Quebec (March, 19th 2004)
- Yukon (July, 14th 2005)
- Manitoba (September, 16th 2004)
It is expected that the question will be soon resolved on a national level.
Canada goes even further by allowing foreign same sex couples to visit the
country and legalize their relationship. If you are interested in this topic,
read HERE.
Before Canada`s firsts steps toward same sex marriages, in 1999, Brazil
enforced a law which equalized same sex and traditional marriages. Yet, there
was no further development. In 2002, the Constitutional Court of South Africa
ruled that it was against the Constitution to deny marriages to same sex
partners. This decision makes South Africa the first country to defend same
sex marriages on a constitutional level. This fact, unfortunately, remains
only on paper. A province of Australia, Tasmania, decided to legalize civil
partnerships, but the Australian Senate was quick to forbid same sex marriages
in the ?Law of Marriage? of Australia. In addition, Australia does not
recognize same sex marriages registered in other countries. In the United
States, Massachusetts legalized same sex marriages in 2004, but those were
valid only for the residents of the state. Vermont allowed civil unions, but
that`s it for the whole States. The majors around California protested against
outlawing of the same sex marriages and proclaimed that they would marry all
same sex couples which desired to legalize their relationship. A bit later,
the Highest Court of California forbid, and practically proclaimed invalid
4000 same sex marriages. In 37 states is in force the ?Act in defence of
marriage? which forbids same sex marriages. In the rest of the states, this
Act awaits consideration. 3 states (AK, NE, NV) have amended their state
constitutions in order to outlaw same sex marriages. 4 states (MD, OR, WI, WY)
have special laws forbidding same sex marriages. 5 states (CT, NJ, NM, NY, RI)
and DC do not forbid same sex marriages but have no laws allowing them either.
This is the situation around the world. Yet, it makes the question of whether
they are necessary or not relevant in our country. The polemic of why and
whether they are necessary came into being.
Same sex marriages and their implications
There are three things at the forefront of defending same sex marriages:
First is the moral effect of marriage. The possibility of the couple to
express its love and commitment, to declare and stamp with signatures this
relationship in front of Society.
Second comes the social effect. The right of same sex couples to be acknowledged and treated on an equal footing with
heterosexual couples, to have the same rights and obligations.
Third are the legal implications of the marriage.
There are many unresolved questions around the cohabitation of a couple (no matter whether it is same sex or
heterosexual) and these questions have to be legally resolved in our country.
Marriage is one of the ways to do that.
I don`t want to underestimate the importance of the first two points for many
of us, but I prefer not to focus on categories as morality, equality, right to
happiness for all, and so on?They are important, but those cannot be a reason
to press for same sex marriages of coupes so much and so urgently. The first
two points are after all a question of social awakening, rethinking of the
European values and ideas of equality and rights, a question of integration,
of getting to know the homosexual people and their relationships, and
recognizing that they are equal citizens of our country. We realize that to a
great extent this will take time and will depend on us and on the way we
present the same sex couples to the wider society.
The third point entails something very essential that marriage
endows - the legal implications of marriage:
- The right to joint property!
- The right to inheritance!
- The right to hospital visitation and information about the partner in case of
detention or hospitalization!
- The right to custody of our partner`s child!
- The right to refuse testifying against our partner!
- The right to unemployment benefits if one of the partners is unemployed and
the income per person is
below the minimum;
- The right to pension and life insurance in case that one of the partners
passes away;
- Other less important legal implications;
- Future legal implications;
Right to joint property
This is a ver-The right to inheritance!
-The right to visitation in case of detention or hospitalization!
-The right to child custody!
-The right to refuse witnessing against the partner!y problematic moment in the relationship of every
couple - homosexual or heterosexual which cohabitates without a legal union. While
cohabitating for a continuous period of time, the couple earns money, saves
them, and acquires common property. An apartment, a car, furniture, all kinds
of devices and appliances? All those are things on which the couple cannot
have the right to joint property without marriage. Only one of the partners
possesses documents for and is the owner of the material gains. So if the
couple splits up, the problems around the common property are irresolvable,
and one of the partners is often mistreated. And this obstructs the perspective of creating a real home for the couple.
Right to inheritance
This is a question closely related to the right to joint property. In case
that one of the partners passes away because of illness, incident, or another
reason, the other partner cannot claim right over the property acquired
together in case that this property belongs formally to the deceased partner.
The living partner has no rights over the property, even if her partner has
left a will benefiting her.
The Bulgarian law proclaims that a will is invalid if it violates the interests of the deceased person`s relatives. This often
leaves the living lesbian without a home, car and/or any kind of property. Or
without the joint business. Eventually, also without copy rights or other
inheritance rights...
Right to hospital/prison visitations and information about the partner in case
of hospitalization or detention
Extremely important right! Not only from a legal perspective, but in the name
of humanity. It is unacceptable to decline to a person a hospital visit to her
partner with whom she has lived for years, to refuse revealing information on
her status and her life chances because of the fact that legally, they have no
legal relationship. It is unacceptable to refuse revealing information to a
person if her partner is under detention just because she has no right to this
information according to the law.
Right to custody of the partner's children
Also a very important problem in certain situations. If the biological mother
passes away, and the child has no other relatives, the state has to take care
of the child, and she or he would have to go to an orphanage where the child
will be deprived of maternal care. The consequences are obvious for everyone,
I guess. But even in less extreme cases, for example, if the biological mother
goes on a business trip abroad or works abroad for a certain period of time,
she is in hospital/ sanatorium or she is under detention, the partner with
whom she lives in the same household should be able to take care of the child.
To represent the child as a parent, trustee, or guardian in front of school
authorities, hospitals, police, and so on.
Right to refuse witnessing/testifying against the partner
Every spouse has the right to refuse witnessing against her or his 'half', in
case that the evidence would incriminate the other spouse and lead to
sentencing. If this happens to you and the person with whom you cohabitate,
your partner is obliged to witness about your hypothetical violations and
offences. Something more, she would be obliged to inform the authorities if
she suspects something. If the court proves that she has known what was going
on and did not signal about it, she would be charged with concealing evidence
of the offence. And if she refuses testifying, she will be charged together
with you. If she gives false evidence, for example, she states that she had no
clue of your actions and turns out on the contrary, she would be charged with
perjury and will stay behind the bars up to 5 years. Same sex couples are
deprived of the right to refuse witnessing against their partners because they
don't have a formal relationship according to the law.
Right to unemployment benefits in case that only one of the partners works in
the household, the other is unemployed and has no income, and the joint income
is below the legal minimum
If one of the partners works for 200 leva, then the income per person will be
100 leva. But because according to the law this household consists of one
person, the working partner cannot receive additional social assistance, for
example, for heating.
Right to pension or insurance benefits in case that one of the partners passes
away
I think that all is clear here. If one of the partners passes away, the other
does not have the right to pension, and she cannot benefit from the insurance
of the deceased. A will in Bulgaria does not have any legal weight unless the
relatives decide to respect the will of the deceased. The state institutions
will not issue a pension, the insurance companies will not pay an insurance on
presenting a will as an evidence.
Other less significant legal and jurisprudal implications
These are things as the right to carry the surname of your partner, the right
to include her income when applying for bank credit, the right to use her
health insurance, and so on...
Expected future legal implications
Here come the expected future right to family income taxation, joint family
insurance, etc.
Obstacles to same sex marriages
In Bulgaria, the 'Family code' regulated the marriage institution.
Upon reading Chapter II- Article 13 of this Code, one can see that the
obstacles to same sex marriage are:
Article 13 (1), individuals not entitled to marriage are:
1. Those who have another marriage;
2. Those serving sentences or suffering from mental illness which demands
hospitalization;
3. Those who suffer from a serious illness which endangers the life and health
of the partner and their offspring unless the illness endangers only the
spouse suffering from it and she or he is aware of it;
(2) Individuals who cannot marry include:
1. Blood relatives;
2. Brothers and sisters, their offspring and other relatives up to fourth
cousins;
3. Individuals for whom adoption creates a relationship of the same status as
blood relatives or brothers and sisters;
It is clear from this text, that there are no obstacles which make same sex
marriages impossible.
The obstacles come from the same law in Article 7 called:
Consent to marry
Article 7: Marriage is contracted by mutual consent between a man and a woman
and this consent is expressed simultaneously and personally before the civil
authorities.
The specification of a marriage between a 'man' and a 'woman' predetermines the impossibility of contracting a same sex marriage, despite
that Article 13 lacks such condition. But this is not all. The real problem
does not stem from the 'Family code', which is, after all, only a law, but
from the requirement for heterosexual marriage embedded in the Constitution.
Constitution of the Republic of Bulgaria:
Article 46 (1): Marriage is the consensual union between a man and a woman. Only the civil marriage is a legal
union.
Even if our MPs agree on a change of the 'Family code', a change of the
Constitution is a very serious thing. They have to summon a Great National
Assembly; yet, even the most well intentioned MPs would hardly agree on such a
step just to resolve the problem of a tiny percentage of same sex couples who
desire to marry.*
Our stand on same sex marriages
We do not insist on Constitutional changes. We do not demand special rights or
privileges for our community. For many people, marriage is an old- fashioned
institution, and increasing number of couples (especially, heterosexual)
cohabitate for many years, and feel no necessity to legalize their unions.
Despite that, these couples have an urgent need to formalize their legal
relations, and the state has to think of those couples who, for one reason or
another, do not want to marry. And also for those, who even if desire to
marry, have no legal right to it- as it is the case of the same sex couples.
In our opinion, the state has to adopt a 'Law on registered
partnerships' - a law, I underscore, which will benefit both, heterosexual and homosexual
couples, which cohabitate in a household. This law will give the couples the
right to register their relationship in front of the civil authorities and
will endow them with the necessary legal rights and their implications. The
law makers are the persons to decide what kind of rights would be endowed to
these couples, but we think that the following rights have to be included by
all means:
-
The right to inheritance!
- The right to joint property!
- The right to visitation in case of detention or hospitalization!
- The right to child custody!
- The right to refuse witnessing against the partner!
We also favour the inclusion of other rights for cohabitating partners as:
-
The right to unemployment benefits in case that only one of the persons in
the household works and the
income is beyond the minimum;
- The right to pension and reception of insurance benefits in cases that one of
the partners passes away;
- The right to carry the partner's name;
- The right to benefit from joint income taxation, joint health insurance, etc.
Of course, it is absolutely crucial that there are no limiting clauses which
obstruct the actual registration of partnerships, inclusion of texts which
contradict existing laws or such that are under the influence of other legal
texts. We claim that this law will benefit not only same sex couples, but also
all heterosexual couples who cohabitate without marrying (and they outnumber
many times the same sex couples). So, this law will have a considerable effect
on society and will contribute to societal progress and to the rights of all
citizens without consideration of their sexuality, sex, religion, ethnos, etc.
This law is necessary for everyone and everything which has to be done, so
that same sex couples also benefit from rights which do not suffer from
limitation clauses making same sex partnerships` registration impossible.
We consider that this would be a serious sign that our country travels
confidently on its way to democracy, European values, and human rights. By
adopting this law, Bulgaria will prove that it can take care of all citizens.
==============================
* For example, one year after Belgium equalized same sex marriages with the
heterosexual ones, only 300 couples contracted a marriage and only 22 of the
marriages took place in Brussels. According to the official statistics, there
300 couples represent just three percent of all same sex couples within the
country.
Read more materials on the
same sex marriages:
bglesbian -
December, 11th 2004
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