The legal prohibition on heterosexual couples to enter into registered partnership does not violate the right to personal and family life
Ratzenböck and Seydl v. Austria 26-10-2017 (no. 28475/12)
Lack of possibility for heterosexual couples to enter into a registered partnership. The Austrian registered partnership is an alternative to marriage only for same-sex couples. The applicants, as a heterosexual couple, had access to marriage in an institution that satisfied the need for legal recognition of their relationship. They did not claim to have been affected by any legal difference between the two institutions. No violation of private and family life.
The applicants, Helga Ratzenböck and Martin Seydl, are Austrian nationals who were born in 1966
and 1964 respectively and live in Linz (Austria).
In February 2010, the applicants, who had been living in a stable relationship for many years, lodged an application to enter into a registered partnership under the Registered Partnership Act, which had entered into force on 1 January 2010. The Mayor of Linz dismissed their application, finding that they did not meet the requirements since the registered partnership was reserved for same-sex couples. After the applicants’ appeal – alleging discrimination based on their sex and their sexual orientation – had been dismissed by the Upper Austrian Regional Governor, they lodged complaints M with the Administrative Court and the Constitutional Court. They argued that marriage was not a suitable option for them and that a registered partnership was more modern and “lighter” than marriage. In particular, there was a difference in the statutory time-limit for divorce and for the dissolution of a registered partnership and there were differences as regards a number of obligations following from marriage and registered partnership respectively.
In September 2011, the Constitutional Court dismissed the complaint. Referring to the European Court of Human Rights’ judgment in the case of Schalk and Kopf v. Austria (30141/04), the Constitutional Court considered that if the question of whether or not to allow same-sex marriage was left to regulation by domestic law this had to apply also for the question of whether registered partnerships were to be open to different-sex couples. Moreover, given that persons of different sex had access to marriage, the registered partnership had been introduced only to counter discrimination against same-sex couples. In February 2013, the Administrative Court also dismissed the applicants’ complaint.
THE DECISION OF THE COURT
Article 14 in conjunction with Article 8
The Court accepted that different-sex couples were in principle in a relevantly similar or comparable
situation to same-sex couples as far as their general need for legal recognition and protection of
their relationship was concerned.
However, the exclusion of different-sex couples from the registered partnership in Austria had to be
seen in the context of the overall legal framework governing the recognition of relationships. The
registered partnership had been introduced as an alternative to marriage in order to make available
to same-sex couples, who remained excluded from marriage, a substantially similar institution for
legal recognition. The Registered Partnership Act of 2010 thus counterbalanced the previous
exclusion of same-sex couples from any legal recognition.
In its judgment in the case of Schalk and Kopf v. Austria (30141/04) of 24 June 2010, which
concerned the complaint by a same-sex couple about being denied access to marriage, the Court
had found that the legal status provided for by the Registered Partnership Act was equal or similar in
many respects. Since then, the legal frameworks governing the two forms of legal recognition of a
relationship had been further harmonised, so that no substantial differences remained.
The fact that the applicants as a different-sex couple had access to marriage satisfied their principal
need for legal recognition. Moreover, they had not claimed to have been specifically affected by any
difference in law between the two institutions.
The applicants were therefore not in a relevantly similar or comparable situation to same-sex
couples who had no right to marry in Austria and needed the registered partnership as an
alternative means of providing legal recognition to their relationship. There had accordingly been no
violation of Article 14 in conjunction with Article 8.
Judge Mits expressed a concurring opinion. Judges Tsotsoria and Grozev expressed a joint dissenting
opinion. These opinions are annexed to the judgment(echrcaselaw.com editing).