Schalk & Kopf v Austria

Same-sex marriage

(Application No. 30141/04), 26 June 2007

Find Court’s judgement here.

• The applicants, a same-sex couple, complained that the authorities’ refusal to allow them to contract marriage violated Article 12 of the Convention.
• ILGA-Europe, together with FIDH, ICJ and AIRE Centre submitted the following:
  • There is a need for guidance on whether “family life” in Art. 8 should be interpreted as including same-sex couples. They consider that Karner v. Austria (2003) implies that same-sex couples (without children) enjoy “family life”. Furthermore, national courts in European and other democratic societies have treated unmarried same-sex couples (without children) as families.
  • If the European Convention does not yet require equal access to legal marriage for same-sex couples, it is indirect discrimination based on sexual orientation to limit a particular right or benefit to married different-sex couples, but provide no means for same-sex couples to qualify. There also is a growing consensus in European and other democratic societies that same-sex couples must be provided with some means of qualifying for rights or benefits attached to marriage.
• The European Court of Human Rights delivered its judgment on 24 June 2010.
• The Court considered that Article 12 does not impose an obligation on the respondent Government to grant a same-sex couple such access to marriage (para 63). However, the case is important because the Court held that the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would (paras 94-95). Further, the Court observed that legislation gave the applicants a possibility to obtain a legal status equal or similar to marriage in many respects.