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The Nordic Model: Same-Sex Families in Love and Law

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Same-Sex Couples before National, Supranational and International Jurisdictions

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Abstract

The Nordic Countries share a common history and have a long tradition of legal cooperation. Their systems of government are often referred to as the Nordic model modelled on principles of equality and social security. The Nordic Countries were the first in the world to incorporate same-sex relationships into the sphere of traditional family law. One of the most outstanding features of the legal development in this area is the trust in the democratic processes and lack of challenges through the judiciary. This chapter discusses some key elements of the Nordic model and Nordic constitutional theory and follows the development of the legal regulations of same-sex relationships within family law in each of the Nordic Countries: Denmark, Norway, Sweden, Iceland and Finland.

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Notes

  1. 1.

    The Nordic Countries consist of five sovereign states: Denmark, Finland, Iceland, Norway and Sweden. The Faroe Islands and Greenland enjoy a high degree of self-goverance under the sovereignty of Denmark and the same applies to the Åland Island under Finland.

  2. 2.

    Scherpe (2007), p. 266.

  3. 3.

    Persson and Wiberg (2011), p. 17.

  4. 4.

    Arter (2006), p. 5.

  5. 5.

    Friedman (1990), p. 74.

  6. 6.

    Greve (2007), pp. 44–45.

  7. 7.

    Svenson and Pylkkänen (2004), p. 18.

  8. 8.

    According to comparative research elements of social capital are among the highest in the Nordic Countries, with the highest levels of generalized trust and confidence in political actors, see Giczi and Sik (2009), p. 79.

  9. 9.

    Bernitz (2007), p. 18.

  10. 10.

    The Nordic states are in many ways influenced by global developments and increased Europeanization, though to different degrees. All the Nordic Countries are Council of Europe Member States. Denmark (not the Faroe Islands and Greenland), Finland (along with the Åland Islands) and Sweden are members of the EU, but Norway and Iceland are EFTA Countries within the EEA (European Economic Area).

  11. 11.

    The Nordic Council, www.norden.org.

  12. 12.

    Ibidem. Accessed 15 December 2012.

  13. 13.

    Important necessary changes have also taken place outside the realm of family law, such as the decriminalization of same-sex sexual acts and the acceptance of different forms of anti-discrimination legislation.

  14. 14.

    Friðriksdóttir (2012), pp. 151–152.

  15. 15.

    Friðriksdóttir (1996), p. 9.

  16. 16.

    In 1981 the parliamentary Assembly of the Council of Europe adopted recommendation no. 1981 urging member states to apply the same minimun age of consent for same-sex and opposite sexual activity and to ensure equal treatment in employment and child custody decisions. The Council of Europe also adopted resolution no. 756/1981 urging the World Health Organization to remove homosexuality from its International Classification of Diseases. It may also be noted that the Parliament of the European Community adopted a resolution in 1984 requestiong member states, among other things, to legalize homosexual relationships.

  17. 17.

    Countries are put in the order in which they introduced Acts on Registered Partnerships.

  18. 18.

    In Betækning No. 1127/1988 Homoseksuelles vilkår [Official Governmental Report: The situation of homosexuals].

  19. 19.

    Ibidem, p. 7.

  20. 20.

    Ibidem, at note 19, p. 21.

  21. 21.

    Ibibem, pp. 109–110.

  22. 22.

    Ibidem, pp. 126–128.

  23. 23.

    Ibidem, p. 123.

  24. 24.

    Bill no. 117 and 118/1998 on registered partnership.

  25. 25.

    Greenland adopted the Danish law on registered partnership in 1996 (Resolution no. 320/1996) but the partnership law is not valid in the Faroe Islands.

  26. 26.

    With the exception that at least one of the partners had to be a Danish national residing in Denmark. This condition changed gradually over the years, allowing persons from other Countries with similar legislation to register their partnership in Denmark.

  27. 27.

    Law No. 460/1997 on reproductive technologies.

  28. 28.

    Bill No. 5/1996–1997 for law on reproductive technologies; Lund-Andersen (2003), pp. 19–20.

  29. 29.

    Parliamentary Law Committee Report 6 May 1999. With respect for Countries of origin step-parent adoptions were not available if the child had been adopted from another Country.

  30. 30.

    Bill No. 151/2005–2006 for changes to the law on reproductive technologies.

  31. 31.

    Bill No. 146/2009–2010 for changes to the law on registered partnership.

  32. 32.

    Law No. 532/2012 on changes to the law on marriage, law on marital consequences, law on procedure and the abolishment of the law on registered partnership. This was not the first proposal of its kind that was introduced in Parliament, see for example Bill No. 123/2009–2010 for changes to the law on marriage etc.

  33. 33.

    Et Danmark – der står sammen (2011) [A Denmark that stands together]. An English summary available at http://www.stm.dk/multimedia/Regeringsgrundlag_uk_2011.pdf. Accessed 17 December 2012.

  34. 34.

    Law No. 45/1991 on joint households.

  35. 35.

    Ot.prp. No. 32 (1992–1993) [Bill for law on registered partnership].

  36. 36.

    Following the Danish example in excluding children adopted from another Country.

  37. 37.

    Ot.prp. No. 71 (2000–2001) [Bill for changes to the law on adoption and law on registered partnership].

  38. 38.

    Ot.prp. No. 33 (2007–2008) [Bill for changes to the law on marriage, law on children, law on adoption, law on reproductive technologies (one marriage law for heterosexual and homosexual partners)]. The Norwegieans took due note of the Swedish report SOU 2007:17 Äktenskap för par med samme kön: Vigselfrågor [Swedish Government Official Reports: Marriage for person of the same sex, Formalities for entering into marriage] and subsequent proposals in Sweden, see further below in the section on Sweden.

  39. 39.

    Law No. 53/2008.

  40. 40.

    Ot.prp. No. 33 (2007–2008), p. 50.

  41. 41.

    Ot.prp. No. 33 (2007–2008), p. 50 and pp. 61–63. For such arguments see also Friðriksdóttir (1996, 2003).

  42. 42.

    Friðriksdóttir (1996), p. 18; Ytterberg (2004), pp. 428–429.

  43. 43.

    SOU 1984:63 Homosexuella och samhället [Swedish Government Official Reports: Homosexuals and society].

  44. 44.

    Sweden had already adopted law No. 1973:651 on common homes for unmarried couples. The law was replaced by law No. 1987:282 on common homes for cohabitants and law No. 1987:813 on homosexual cohabitation. These laws were later replaced by law No. 376:2003 Sambolag [Law on cohabitation] confirming certain rights and obligations on both same-sex and different-sex cohabitants.

  45. 45.

    SOU 1993:98 Partnerskap [Swedish Government Official Reports: Partnership].

  46. 46.

    Ibidem, pp. 27–28.

  47. 47.

    SOU 2001:10 Barn i homosexuella familjer [Swedish Government Official Reports: Children in homosexual families].

  48. 48.

    Ibidem, p. 15.

  49. 49.

    Ibidem, p. 22.

  50. 50.

    See also Ytterberg (2004), p. 435.

  51. 51.

    Law No. 2002:603 amending the law on registered partnership and other laws. Contrary to Denmark and Norway no exception was made for step-parent adoption of children adopted from another Country.

  52. 52.

    Proposition 2001/02:123 [Government bill, Partnership and adoption].

  53. 53.

    Proposition 2004/05:137 [Government bill, Assisted reproduction and parental status] and law No. 2005:447. The government looked at further aspects of parental status in the report SOU 2007:3 Föräldraskap vid assisterad befruktning [Swedish Government Official Reports: Parental status and assisted reproduction].

  54. 54.

    SOU 2007:17 Äktenskap för par med samme kön: Vigselfrågor [Swedish Government Official Reports: Marriage for person of the same sex, Formalities for entering into marriage].

  55. 55.

    Ibidem, p. 33.

  56. 56.

    Ibidem, at note 55, p. 32.

  57. 57.

    Ibidem, p. 33.

  58. 58.

    Law No. 253:2009 on amendments to the law on marriage and law no. 260:2009 repealing the law on registered partnership. The treatment of registered partnerships already established in Sweden is similar to the situation in Norway, as described above.

  59. 59.

    Skýrsla nefndar um málefni samkynhneigðra (1994) [Official Report from the Commission on homosexual issues].

  60. 60.

    An actual translation of the terms from Icelandic would be: confirmed partnership. The main reason was to avoid confusion as in Iceland it is possible for unmarried cohabitees to register their cohabitation with the National Registry. In some areas of law such registration is required in order for unmarried cohabitation to have legal effects. In spite of this the official English translation of the Icelandic law used the term registered partnership.

  61. 61.

    Alþt. 1995–1996, þskj. 564 [Icelandic Parliament 1995–1996, doc. no. 564]. Of the Nordic Countries, Iceland also has the widest scope for legal rights and duties of stepparents. According to the Icelandic laws a stepparent in a homosexual relationship could thus aquire joint custody with the birth parent and retain custody after the death of the birth parent, unless challenged.

  62. 62.

    Law No. 52/2000 on amendments to the law on registered partnership. Following Denmark and Norway with respect to inter-countries adoptions.

  63. 63.

    Parliamentary document no. 935: 2000–2001 Report on the legal status of cohabitants.

  64. 64.

    Members of the aforementioned Commission had debated the latter issues and although they accepted that there were no discernible differences between heterosexuals and homosexuals as parents, relying mostly on the Swedish report from 2001, their proposals had not been unanimous.

  65. 65.

    Law No. 65/2010 amending the law on registered partnership and several other laws.

  66. 66.

    Law No. 65/2010 on changes to the law on marriage and others laws. The treatment of registered partnerships already established in Iceland is similar to the that of Norway and Sweden, as described above. It is worth noting that the law on registered partnership in Iceland entered into force on the same date, June 27 1996, symbolic since the Stonewall uprising in 1969, and the same applies to most of the subsequent amendments to the legislation in Iceland.

  67. 67.

    Familjekommission betänkande 1992:12 [Finnish Governement Official Report: The Family Commission].

  68. 68.

    See further Savolainen (2003), pp. 26–27.

  69. 69.

    Justitieministeriets Betänkande 1999:2 [Ministry of Justice Report].

  70. 70.

    The law came into force in 2002. Registered partners in Finland can also obtain joint custody of a child.

  71. 71.

    It has been argued that the Finnish gay and lesbian movement focused more on parenthood in their campaign for registered partnership than in any other Nordic Country: see Rydström (2011), p. 123.

  72. 72.

    Hiltunen and Waaldijk (2004), p. 82.

  73. 73.

    The issues had been hotly debated for many years as described in the bill, RP 3/2206, which became law No. 1237:2006 on assisted reproduction.

  74. 74.

    RP 198/2008 [Bill for amending the law on registered partnership].

  75. 75.

    Law No. 391:2009 amending the law on registered partnership.

  76. 76.

    Berggren and Trägårdh (2011), p. 19.

  77. 77.

    Helgadóttir (2006), pp. 251–254.

  78. 78.

    Merin (2010), p. 66. Rydström (2011), p. 168 suggests that a de-radicalisation of the movements is an important factor in explaining why gay marriage became a priority for the national gay and lesbian movements and why it had any chance to be accepted by mainstream society.

  79. 79.

    Berggren and Trägårdh (2011), p. 27.

  80. 80.

    Glass et al. (2012), p. 170, compared the extension of marriage rights for same sex couples in five Countries—the Netherlands, Belgium, Norway, Sweden and Spain—and concluded that the single most important factor predicting the extension was the ascension of a strong leftist ruling party or coalition.

  81. 81.

    Waaldijk (2004) pp. 439–440. Fassin (2004), p. 188 notes how history supports the optimistic narrative. See also Adams, p. 273, and Lund-Andersen (2003), p. 23.

  82. 82.

    Finland does lag a little behind the other Nordic Countries. One possible reason can by the fact that the Icelandic, Danish, Norwegian and Swedish languages are very closely related and the last three are largely understood in the other Countries. Finnish is of quite another origin and this may hamper successful formal and informal cooperation on legal matters.

  83. 83.

    Jänterä-Jareborg, p. 148 speaks of the importance of the uniformity of approach.

  84. 84.

    Scherpe (2007), p. 286.

  85. 85.

    Adams, p. 273. Rydström (2011), p. 168, suggests that the idea of a separate registration for homosexuals was not orginially Nordic but was discussed in different European gay and lesbian movements in the 1960s.

  86. 86.

    Fassin (2004), p. 188 uses the term “quasi-marriage”. In admitting same-sex partners into a legal realm alongside of marriage, albeit with restrictions, it also became almost self evident that same-sex cohabiting partners would automatically enjoy the same legal rights and protection afforded the less revered institution that cohabiting different-sex partners enjoyed in various areas of law.

  87. 87.

    Lund-Andersen (2004), pp. 425–426.

  88. 88.

    Ytterberg (2003), p. 8.

  89. 89.

    Friðriksdóttir (1996, 2003, 2010).

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  1. University of Iceland, Reykjavík, Iceland

    Hrefna Friðriksdóttir

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  1. Department of Law, Luiss University, Rome, Italy

    Daniele Gallo

  2. University Institute SSML Carlo Bo, Rome, Italy

    Luca Paladini

  3. Political and International Sciences, University of Siena, Siena, Italy

    Pietro Pustorino

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Friðriksdóttir, H. (2014). The Nordic Model: Same-Sex Families in Love and Law. In: Gallo, D., Paladini, L., Pustorino, P. (eds) Same-Sex Couples before National, Supranational and International Jurisdictions. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-35434-2_7

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