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Marriage Equality: the day after.

Marriage Equality: the day after.

 

The Marriage Equality Bill (“Equality in civil marriage, amendment of the Civil Code and other provisions”) marks the culmination of the LBGTQI+ community’s demands for legal equality in family relationships. The right to privacy and family life of same-sex persons and the prohibition of discrimination based on sexual orientation is validated through the possibility of marriage, which in turn leads to the possibility of recognition of their families. As the voting of the bill approaches, this article examines where the LGBTI community in Greece finds itself in the day after the passage of the bill: what are ultimately its accomplishments and the possibilities opened up and what remains to be accomplished.

 

  1. Marriage

Article 3 of the Bill amends Article 1350 of the Civil Code on the conditions for marriage, which now reads as follows: “Marriage shall be contracted between two persons of different or the same sex. Marriage requires the agreement of the intending spouses. Such declarations shall be made in person and without condition or time limit’.

This article guarantees the much sought-after equality in marriage. However, it should be made clear that the old Article 1350 of the Civil Code did not make the difference in the sex of the persons concerned a precondition for marriage. This is the reason why the project of the “marriages of Tilos” took place, which was “wrecked” by the Supreme Court’s decision No. 1428/2017, which ultimately raised the need for legislative reform in order to “allow” marriage between persons of the same sex.

The question that arises is what happens to marriages already performed abroad. Article 9 of the bill provides that “Marriages of Greeks that were performed abroad with persons of the same sex before the entry into force of the present law in accordance with the law of the place where they were performed shall be deemed to be valid from the moment they were performed in accordance with the provisions in force, unless: a) At least one of the spouses has in the meantime entered into a new valid marriage, b) The non-existence of the marriage had already been recognised by an irrevocable decision of a Greek court, c) The marriage has been dissolved in any way or annulled. Decisions of foreign courts which have dissolved or annulled a marriage considered invalid under the previous law shall be recognised in accordance with the relevant provisions”.

At the same time, this article deals with the case of Greek residents abroad who, since their marriage was not recognised in our country, entered into a cohabitation agreement under Greek law in accordance with the provisions of Law No. 4356/2015. These couples will be able within one year from the entry into force of the law to dissolve their marriage and register this dissolution at the registry office, if they wish the civil partnership to remain active. Otherwise, the contract will be deemed never to have been concluded and the persons will be treated as having entered into a marriage.

Although it is to be expected that most of these couples will wish to be recognised as married in Greece, the regulation is relevant for couples who may wish to be recognised as married in Greece through a civil partnership under Law No. 4356/2015 seek the application of the special regulations of Greek law for their registered partnership relationship, such as the possibility for one of them to waive the right to maintenance already at the time of the conclusion of the agreement etc. (see in detail below).

 

  1. Differences in relation to the cohabitation agreement of Law No. 4356/2015.

So at the same time the discussion opens, why would someone choose marriage over a civil partnership? The reasons are no different from those that apply to heterosexual couples.

Although the parties to a cohabitation agreement are in principle guaranteed in their relations with each other on an equal footing with spouses, the institution of the cohabitation agreement has greater flexibility with regard to:

  1. the method of dissolution: as the agreement can be dissolved by a unilateral notarial declaration registered at the registry office where the conclusion of the agreement is registered (i.e. no consent of the other party is required – see consensual divorce – nor is the marriage broken through the fault of the other party or a two-year separation – see divorce action).
  2. the autonomy of the parties to choose what’s applicable: under L. 4356/2015, the partners can choose, as mentioned above, to waive in advance any maintenance claims against each other for the period after the termination of the agreement, as well as to set different conditions for the accrual of this claim (e.g. by stipulating that the former partner will not take precedence as a maintenance debtor over other descendants or other relatives and so on). Similarly, the partners may, when concluding the contract, waive in advance their right to legal succession in the event of succession and even agree that certain assets will be excluded from the claim to participate in the acquisitions of the other party, etc.

It is therefore evident that the choice between marriage and civil partnership in Greece is not so obvious. And the reason why the demand for marriage equality has been so heavy on the LGBTQI+ community is none other than the possibility of adoption.

  1. Same-sex parenthood: Possibility of joint adoption.

As is well known, the civil partnership agreement did not provide the possibility of adoption to heterosexual couples either, as it was understood that the agreement did not provide the “stability” necessary for the interests of the adoptee (an argument rather misguided, since the consequences of the separation or dissolution of a marriage and a civil partnership are identical as regards the couple’s children, and the parents continue to exercise joint parental responsibility in both cases). The Bill does not provide for anything specific to the possibility of adoption by same-sex couples in Greece, since by extending the possibility of marriage to them, the existing provisions on the possibility of adoption are also applied.

This means that married same-sex couples will be able to adopt a child simultaneously and jointly under Article 1545 CC, unlike under the previous regime, where a homosexual person could adopt only as a single parent (with the result that in practice it was more difficult for the application to be accepted), and one spouse will be able to adopt the child of the other under Article 1562 CC, and the child will be recognised as their joint child.

In order to better understand the importance of this possibility, it should be clarified that under the previous legislative framework, if, for example, the partner of a parent wished to adopt the child of the latter, this would mean that the child would be recognised only as the child of the first one, severing the links with the natural parent and his or her relatives.

Following this possibility, the same-sex spouse of the parent would also be able to adopt as their joint child the child of the latter, whether it is his or her biological child, a child that he or she had also acquired by adoption as a single parent or, in the case of same-sex women, a child that one of them had acquired as a single woman through medically assisted reproduction (see below).

It should be noted, however, that adoption in Greece remains a judicial procedure, which sets as a necessary condition, apart from compliance with the age limits and the required consent, the assessment in each case of the best interests of the adoptee, while social investigation is also carried out in this respect.

In this context, marriage and the subsequent adoption of the child of one parent constitute the legal route to the recognition of the LBGTQI+ families already existing in Greece.

 

  1. Recognition of LBGTQI+ Families Abroad.

 

At the same time, the bill gives the possibility to finally recognize in Greece the families that same-sex couples have already created abroad according to foreign law. In a particularly innovative provision along the lines of the Proposed Regulation on the Recognition of Parenthood between Member States, Article 10 of the bill provides for the following: “1. A relationship between a parent or parents and a child that has been registered in public documents or a court decision of a third country shall be recognised in Greece, subject to the provisions on the recognition of court decisions where this is necessary, irrespective of the sex of one or both parents and of whether or not domestic law provides for the manner in which the aforementioned relationship is established. No public authority, court or third party may oppose the recognition of the parental relationship referred to in the first subparagraph established abroad or the consequences of such recognition. Without prejudice to the provisions of par. 2, consular authorities and the Special Registry shall be obliged to register an act of a foreign public authority establishing a parental relationship established in accordance with the rules of the legal order concerned and in compliance with the formalities laid down in that order. 2. In particular, in the case of adoption by spouses of the same sex or adoption of the child of one spouse by the other spouse of the same sex which has been effected abroad under the law of the place where it was effected, the adoption shall be recognised in accordance with the provisions of the Code of Civil Procedure from the time when it was effected, without prejudice to Article 23 of the Civil Code”.

As emphasised in the Analysis of the Consequences of the Bill, the first paragraph of Article 10 introduces a rule for the recognition of the parental relationship established even in a manner not provided for in Greek law, irrespective of the sex of one or both parents and the provision of the manner in which the aforementioned relationship is established in the domestic legal order. In that light, the courts or other competent authorities, such as registry offices, will not be able to refuse to recognise a public document, such as a birth certificate which lists the two same-sex parents as the child’s parents or a judgment of a court in a foreign country, on the sole ground of the sex of the parents or the lack of provision for the manner in which the relationship was established in the domestic legal order.

The second paragraph of Article 10 regulates separately the legal treatment of same-sex adoptions or adoptions of the child of a same-sex spouse by the other spouse which are carried out abroad. It is provided that such adoptions are recognised by a court decision and apply retroactively from the time they were made, in accordance with the provisions governing the recognition of the relevant court decisions, subject in any event to Article 23 of the CC, which links the substantive conditions of adoption to the law of the nationality of the adopter and the adopted person.

This article essentially recognises the relationship between a child and a parent that has been formed abroad in a way that is not recognised in our country, such as in the case of a male couple having a child with a surrogate mother, in which case the father, who is biologically related to the child, was not legally recognised as the father either (since the acquisition of a child with a surrogate mother by a man was not recognised as an institution establishing kinship). The article is apparently intended to relieve these families from having to go to court, as they had done previously, and to no avail, since the mere fact that our country did not provide for the possibility to have children by same-sex couples was considered to be a reason for these families to oppose public policy and therefore a reason for rejecting applications for recognition of court decisions issued abroad establishing the kinship relationships in question.

The problem that remains is the system of recognition of court decisions of voluntary jurisdiction (which also covers adoption) in Greece: although under Article 780 of the Code of Civil Procedure these decisions were automatically recognised, even under the previous regime, the disputes that arose in practice led families to request recognition of the decisions under Article 905 para. 4 of the Civil Code (this practice has also prevailed in court). It is not certain that such disputes and the need for judicial recourse will not arise under the new legislative regime. What is certain is that the law ensures that decisions cannot be found contrary to public policy (a condition which remains for the recognition of any decision in Greece) for the sole reason that the parents are of the same sex, as was previously the case.

Essentially, the same will apply to heterosexual couples, who in the case of e.g. an adoption abroad, as emphasised in the second paragraph of the provision, request judicial recognition of the adoption decision in the Greek legal order. The Court will therefore examine whether the other conditions for the recognition of court decisions are also met (it should be noted, however, that Greek courts tend to set aside these “conditions” in cases where they do not serve the recognition of the adoption).

Same-sex persons who have become parents abroad will therefore be able to apply for the registration of the relevant birth certificate, and in the event of an illegal refusal by the Registrar to register it, they will have recourse to the provision of Article 782 of the Code of Civil Procedure in order to override this refusal.

Similarly, same-sex couples who have become parents abroad through adoption will be able to request recognition of the adoption decision in Greece. In the case where the parents have already appealed to the Greek courts with a negative result, the present legal reform should be considered as a ground for the exercise of legal remedies for the disappearance of the negative decision, since under the new legislative framework it is clear that the recognition of a family with same-sex parents in Greece cannot be considered contrary to public policy, as well as a new factual circumstance justifying the filing of a new application before the same court under Article 778 of the Code of Civil Procedure. However, for reasons of legal certainty, it would be appropriate to add a transitional provision explicitly providing these families with the possibility to reapply with a new application along the lines of the corresponding transitional provision of Law no. 4800/2021 on co-habitation.

 

  1. What happens with medically assisted reproduction?

The bill leaves untouched the provisions on the recourse to Medically Assisted Reproduction (MRA), which is still provided to heterosexual couples and single women under the provisions of the relevant legislation and always on the grounds of “medical necessity” (see in this regard Laws 3089/2002, 3305/2005, 4272/2014, 4812/2021 and 4958/2022)

However, as mentioned above, and especially since the court is not entitled to inquire into the sexual orientation of the applicant, a single homosexual woman, who is at the same time unable to procreate through natural means, can have a child by MAR methods and nothing prevents her, in the case of a subsequent marriage, from consenting to the adoption of this child by her spouse as well, so that it is treated as their common child. In essence, the law leaves the possibility for same-sex women to resort to a legal mechanism, which may lead to having a child in common, biologically related to one of them.

The question is what happens to men: it has previously been held that a single man cannot have a child by MAR methods, in his case with the help of a surrogate mother. Permission had been granted by the court in the case of decision No. 2827/2008 of the Athens Court of First Instance, on the grounds that the failure to provide a similar possibility for men violated the constitutionally guaranteed principle of equality. After an appeal by the Prosecutor, however, the application was rejected (decision 3357/2010 of the Athens Court of Appeal was issued) and the wishes of the, mostly homosexual, were also “wrecked”. However, the trend of this case-law has been criticized by the whole legal theory as unequal for men and given the new legislative framework it is not excluded that it will change.

It should also be noted that a trans woman can by law also have recourse to having a child with a surrogate mother since she cannot produce her own eggs and by law the necessary medical impossibility cannot be ruled out as being subsequent. But this has not been judicially decided and it is likely that the relevant court permission would be blocked. In any case, the issue has remained unregulated for the time being, despite the community’s relevant requests that there be provision for transgender parenthood as well.

 

  1. What’s next?

Surely society does not transform overnight and this bill is a first step towards securing the best interests of children of LBGTQI+ families and equality for LBGTQI+ people in general. At the same time, at the legal level and especially in the field of family law, issues continue to arise that will certainly be the subject of claims:

The recourse to MAR methods by same-sex couples and the resulting possibility of having a child with whom they are biologically linked. Although the Greek legal theory insists that MAR serves purposes of medical necessity, it is argued that these rights should be extended to cases where the inability to have children is not only due to physical reasons, such as in the case of prisoners (with examples from English and American case law, see R Mellor v Secretary of State for the Home Department and the Kirk & Lorain Dickson case).

– Furthermore, in the same way that in heterosexual couples the declaration of the man with whom the woman undergoing MAR methods, even in a free union, has the status of recognition of the child born (under the combination of Articles 1475(2) and 1456 CC), these methods could lead to having a legally common child for same-sex couples. The same result could be achieved by providing for a presumption of “parenthood” instead of “paternity” in the case of a child born within a marriage or cohabitation agreement (so that the child is automatically considered to be the child of the other partner/spouse). This is also the scope of the provision for the possibility of having a child through a surrogate mother for a single man or a couple of men.

– Trans people are still treated as “dead-sex” parents for children they had acquired before the legal recognition of their gender identity by Law No. 4491/2017, a regulation that directly affects both their right to privacy, family life and identity and that of their children.

– It is also necessary to amend other articles of adoption law that do not correspond to modern conditions, such as, for example, Article 1567 of the Civil Code, which stipulates that in the event of divorce, the natural parent has exclusive parental care of the child, a regulation that is now also inappropriate for heterosexual couples and is criticized in theory, as preference for the “natural” over the “social” parent is not justified.

The above is, of course, only a small list of the issues that the requirement for real and effective equality raises for the legislator.

svgMarriage Equality: the day after.
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svgDecision of the Athens Court of First Instance No 2836/2024 - Dissolution of marriage of a Greek citizen with an opposing party resident in the United Kingdom - Dissolution of the marriage due to wrongful retention of the child in England.