Volume 19 (2011) / Issue 5
Macarena Saez, 'Same-Sex Marriage, Same-Sex Cohabitation, and Same-Sex Families around the World: Why Same Is So Different Book reviews/Comptes rendus/Buchbesprechungen' (2011) 19 European Review of Private Law, Issue 5, pp. 631–668
Abstract: Forty years ago, same-sex couples were not legally accepted in any country. In the last thirty years, however, around 20% of countries have granted some rights to same-sex couples, making them visible to society. While there are still countries that criminalize sexual relations among two consenting adults of the same sex, other countries are allowing same-sex couples to marry and form a family. Countries that have decriminalized sexual relations between individuals of the same sex have shortly thereafter seen a rise in the public debate about formal recognition of same-sex couples. At the centre of this debate is the role of marriage. While some scholars claim that marriage is essentially heterosexual and the basis for societal structure, others consider the exclusion of same-sex couples from marriage to be unfair discrimination. Both positions are represented in the reports received for the XVIIIth Congress of the International Academy of Comparative Law. Section 1 of this article briefly explains the situation of same-sex couples in countries that have opened marriage to individuals of the same sex. Although there may be a common understanding of what marriage entails, in some countries, same-sex marriage has become a subcategory of marriage, with different rules than heterosexual marriage and restricted access to certain rights. Section 2 offers a summary and analysis of the status of same-sex unions in countries that sent reports to the XVIIIth Congress of the International Academy of Comparative Law and have not opened marriage to same-sex couples. Section 3 provides a comparative analysis of the most recurrent arguments used in the processes of recognition and denial of same-sex unions in the countries reviewed. Finally, section 4 draws some conclusions on the state of marriage today.
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