The Recognition of Same‐Sex Families in Britain: The Role of Private International Law

Abstract

This article considers how the rules of private international law might be developed (in the light of the obligations placed on the judiciary by the Human Rights Act 1998) in order to deal with three questions concerning same‐sex families that are likely to arise in the foreseeable future. They are: (i) whether the courts should recognize a foreign same‐sex marriage; (ii) whether (and, if so, how) they should recognize a registered same‐sex partnership; and (iii) whether they should recognize a same‐sex adoptive family (that is, a family in which a child has been adopted by both adult partners in a same‐sex relationship, whether married or not). Drawing on case‐law from both the Strasbourg and domestic courts, the article suggests that there are no serious policy objections to such recognition, that recognition should therefore be afforded and that this, in turn, would feed into a more general trend towards the juridification of same‐sex families under the domestic law.