Different Regulatory Regimes for Registered Partnership and Marriage: Out-Dated or Indispensable? - A European Perspective on the Belgian Model

Abstract

In Belgium, as in many European jurisdictions, marriage and registered partnership are subject to different legal rules. In this contribution, it is analyzed whether the difference in treatment between these relationship regimes is still justified.

Registered partnership is not conceived uniformly throughout Europe. This is reflected in the judgements of the European Court of Justice and the European Union law concerning registered partnership and marriage, which often differentiate according to the type of registered partnership concerned. Although the concept of registered partnership is increasingly acknowledged on a European level and included in European legislation, the interpretation of registered partnership is left to national law. All types of registered partnerships do however enjoy protection under the European Convention of Human Rights.

As regards the Belgian registered partnership, the regulatory regimes for marriage and wettelijke samenwoning/cohabitation légale should remain different. However, a threefold reform seems appropriate in order to upgrade the current wettelijke samenwoning to a full relationship regime, not equal to marriage, but an alternative to marriage of equal value. In this respect, it is recommended to assimilate the field of application ratione personae of the wettelijke samenwoning to that of marriage, to reevaluate its primary regime, and to introduce an optional partnership property regime.

Keywords: registered partnership, marriage, wettelijke samenwoning, cohabitation légale