At the crossroads between privacy and community: The legal status of same-sex couples in German, Austrian and Swiss law

Abstract

The status of same-sex couples in German, Austrian and Swiss law reveals many similarities, from both the substantial (with regard to parental and material rights, particularly in the field of social benefits) and the institutional perspective (with regard to the shared powers between the central authority and the member States and to the dialectics between the Legislator and the judiciary). In the three jurisdictions examined, the traditional resistance toward same-sex marriage has not prevented the national Legislators from adopting, over the past decade, a regulation introducing same-sex registered partnerships. The main common features of these provisions are admittance to registered partnerships only for same-sex couples, a regulatory framework imitating the basic structure of marriage, and a progressive inclusion of registered partners within the social security schemes. This common model, which could per se be referred to a 'separate but equal' rhetoric, is undergoing some significant transformations in the field of parental rights, whose increasing enjoyment by registered partners (above all in Germany) is broadening the legal and symbolic relevance of same-sex relationships.