From: Hannele Lehtikuusi Subject: Finland/ Partnership law in English Date: Sat, 8 Jun 1996 22:27:56 +0300 (EET DST) Below you will find the text of the Private Bill for the Act on The Same Sex Partnership. First part is the lenghty explanatory part and right in the very end is the law itself. The Bill was handed to the Parliament on the 28th of May and the debate on it took place on the 5th of June. Next step will be taken in the Committee of Law, which has to decide if it is taken into handling. haski ........................................................ Outi Ojala (Left-Wing Alliance) et al: A BILL FOR THE ACT ON THE SAME SEX PARTNERSHIP To the Parliament The main contents of the bill In the bill it is suggested that two persons of the same sex could enter a partnership. With some exceptions, the provisions to be applied to the recognitionand dissolution of a partnership would be the same as in marriage. The legal effect of the recognition of a partnership would be the same as that of contracting marriage. The laws concerning marriage and legally wedded spouses would be extended the recognized partnership and the partners with certain exceptions, such as the right to adoption. The rights and obligations of the partners in a recognized partnership would be the same as they are in marriage. Generally, the bill corresponds to the legislation in force in the three other Nordic countries with the aim of securing equitable legal treatment of citizens living in a partnership irrespective of their sexes. General justification 1. General The bill is based on the need of two women or two men forming a partnership to build the relationship on a juridical foundation. The bill for the Act on The Same Sex Partnership would regulate the mutual relations of the persons in the relationship as well as their relations with society. The legislation in Finland does not recognise partnership of two persons of the same sex. A Committee on Family Issues in its report in spring 1992 (KM 1992:12, Families and the Law) stated that "partnerships of persons of the same sex are in a very divergent situation." The partners in a partnership of two persons of the same sex cannot apply such provisions of the law "where possible future problems have been anticipated and their righteous solution envisaged." The Marriage Act does provide the heterosexual couples with this option. The Committee found that "equality before the law had not been effected." That was why the committee ended up suggesting to initiate preparations of an act with an aim that couples of the same sex could, if they so wish, have their partnership recognized, and thus share the norms pertaining to the juridical problems of the partnership as well as its dissolution. The Committee also suggested that a survey should be made to establish to what extent regulations concerning spouses in the legislation on social welfare and taxation could be applied to people in a recognized partnership. The suggestion of the Committee on Family Issues puts an emphasis on the regulation of juridical aspects of the parties in a partnership. It is as important to regulate the relationship of persons of the same sex in a partnership with society. A recognized partnership like marriage, too is understood in the context of the bill as a juridical relationship. This is in line with the opinion of the Committee on Family Issues according to which judicial regulation of marriage does not any more aim at supporting certain ethical or religious convictions but at solving practical questions raising in the course of the relationship. The Committee sees no ethical or religious obstacles to regulating a partnership of persons of the same sex adopting decisions similar to those in the Marriage Act. The law bill has been based on this ideologically and religiously neutral stand, which, logically, leads to that no prescriptions on church wedding are included. 2. The Scope of the Act on The Same Sex Partnership The bill for the Act on The Same Sex Partnership would be only extended to two persons of the same sex. They would be allowed, if they so wish, have their partnership recognized if there is no legal objections to it. 3. Prerequisites of a partnership of Two Persons of the Same Sex The prerequisites of the recognition of a partnership of two persons of the same sex would be the same as of contracting marriage. As regards the legal objections and how they are established, the respective regulations of the Marriage Act would apply. At least one of the parties of such partnership shall be a Finnish citizen or have permanent residency in Finland. 4. Recognition of a partnership The bill differs from the Marriage Act essentially in that there is no provision for church wedding in it. The justification is based on both principal grounds and practical realities. The bill does not aim to impose the recognition of a partnership of two women or two men in the same form with heterosexual marriage but, instead, to create prerequisites for the form and procedures of recognizing a partnership to develop in a manner, corresponding to the specific nature of the event. The bill does not either contain regulations on how religious communities should relate to the recognization, but the matter is left a prerogative of these communities. 5. Dissolution of a partnership As regards dissolution of a partnership regulations of the Marriage Act, as appropriate, would be applied. In a matter of dissolving a partnership only a Finnish court of jurisdiction would be competent. 6. Legal effect The legal effect of recognizing a partnership would be mainly the same as in the case of contracting marriage. The legislation on marriage and common marriage in force in Finland would be applied to the recognized partnership and its parties with certain exceptions. The most significant exception would be that the parties of a recognized partnership would not be allowed to adopt a child together. The regulations of the Marriage Act on the property of the spouses, division of such property, marriage settlement contract, gifts of one spouse to the other, maintenance and the debts of the spouses would be extended to the parties of a recognized partnership and so would be legislation concerning inheritance, social welfare and taxation as well as all remaining legislation with regulations on marriage and spouses. The parties of a partnership would be entitled to inheritance and, as regards taxation and decisions on any social benefits, they would be considered on a par with married couples. This would among other things mean that the income of the other party of the partnership would be taken into consideration when a decision is being made whether a person is entitled to employment benefit on social grounds. 7. Changes in the remaining legislation When enacted, the bill would require changes in the prescriptions related to family and inheritance laws as well as in the remaining civil legislation and also in tax, crime, and social legislation and Rules and Procedures. The need to regulate the status of children in lesbian and gay families would require the biggest changes. There are often children of the parties in the families of couples of the same sex. Although a child may have lived in the family of his or her biological parent and her or his partner since birth or early childhood, the child's relationship with this social parent has not been regulated in our legislation. In the case of death or illness of the biological parent, the social parent has no right or obligation to take care of the child. The responsibility for the child is transferred to the biological relatives of the child irrespective of what the child's real relationship with his or her kin is. The good of the child requires that the parties of a recognized partnership, contracted as stipulated in the bill shall have the right to agree upon a child's joint custody. A court of jurisdiction shall be able to decide that the custody of a child is granted to the parent and her or his partner together, or should the good of the child so require, e.g. in the case of the biological parent being ill, to the partner of the biological parent of the child. It would seem that it is not completely impossible to interpret the provision in paragraph 4 of the Act on Custody and Visiting Rights in a manner that the custody of a child, in a case where the child's good so requires, is regulated by a court order as prescribed above. It is suggested that the Cabinet should look into whether the existing legislation in force suffices to protect the right of a child to his or her social family or should the respective regulations be specified to this end. Detailed justification 1. Prerequisites of a partnership Only two persons of the same sex can enter a partnership. The act would not allow several people living in the same household to recognize their mutual relationship. Before a partnership is recognized, the fulfilment of the preconditions of not having obstacles as prescribed in chapter 2 of part I of the Marriage Act, would be established. A person under 18 years of age would not be allowed to enter a recognized partnership but with a special permission by the Minister of Justice. A ward would only be allowed to enter a recognized partnership with permission of his or her guardian or a court. A new partnership would not be recognized if an earlier partnership or marriage is in force. Also, a partnership would not be allowed to be recognized with one's mother, father, their parents, one's children, grandchildren or any other relative in the direct line. Partnership shall also not be allowed between siblings and half-siblings. An adoptive parent and child or persons, if one is a direct descendant of the other's sibling would only be allowed to have their partnership recognized with a permission of the Minister of Justice. The Population Registrar would, on a joint request of the two wishing to have their partnership recognized establish that there is no legal objection to the partnership prescribed in the law. If a permission of the Minister of Justice is required, it would need to be submitted to the Population Registrar. The persons wishing to have their partnership recognized would be requested to give a statement in written that there is no obstacle to it prescribed in the law and also, in written, whether one or both of them have been earlier in a marriage or recognized partnership. Then, the Population Registrar would issue a written certificate stating that there is no legal objection to the recognition of the partnership. 2. Recognition of a partnership A partnership would be recognized in a special procedure with both parties of the partnership simultaneously present. The procedure would be witnessed by relatives or two outside witnesses. Authorities, entitled to service civil marriage, i.e. lagman (Senior Law Counsellor), Assistant District Judge or District Registrar would be authorised and obliged to service the recognition. On the specifics of the service of recognition a separate decree would be issued. 3. Dissolution of a partnership A recognized partnership would be dissolved like marriage in the case of death or declaration of legal death of one of the parties without any action to dissolve it. When both parties alive, the parties would be allowed to dissolve their partnership on a request after a minimum of 6 months' reconsideration period, according to what is stipulated in the section on divorce of the chapter 6 of part I of the Marriage Act. The parties of a recognized partnership would also have the right to dissolve their partnership when they have uninterruptedly lived in separation for the past two years. Dissolution of a partnership would always be a matter of competence of a Finnish court of jurisprudence, and dissolution of partnership anywhere else would not be effected in Finland. 4. Legal effects of a partnership The recognition of a partnership would have the same legal effect as contracting marriage. Without certain exceptions, the legislation on marriage and spouses would be applied to the parties of a recognized partnership, their mutual relationship as well as their relationship towards third persons. The Marriage Act would be applied, as appropriate, without the regulations on wedding in the chapter 4 of part I. The regulations of chapter 3 of the Inheritance Code on the inheritance right and right of possession of property would be extended to the parties of a partnership, too. Further, they would be treated on a par with married couples as regards taxation or decisions on social benefits. The main exception in applying the legislation on Married spouses would be that parties of a partnership would not have the right to adopt a child together. 5. Coming into force The Act is meant to be effective as soon as possible. On the basis of the above, we suggest that the Parliament enact the following bill. ------------------------------------------------------------------------ ACT ON THE SAME SEX PARTNERSHIP According to the decision of the Parliament it is stipulated that 1. Prerequisites of a partnership Two persons of the same sex (parties of the partnership) may have their partnership recognized according to what the law stipulates. Before the act of recognition, it shall be established that there is no legal objection to the recognition, as set forth in the Marriage Act (234/29). What is prescribed on how it is established that there is no legal objection to a marriage, shall apply to partnerships. A person of under 18 years of age must not enter a partnership. The Minister of Justice, however, may grant a person of under 18 years of age the permission to recognize a partnership. Before the decision is made, a chance to be heard shall be provided to the guardian of the person seeking the permission, if the guardian's domicile can be located with a reasonable effort. 2. Procedure of recognizing a partnership The partnership shall be serviced by an authority entitled to service civil marriages in the attendance of relatives or other witnesses. In the procedure, the parties of the partnership shall be simultaneously present. Further regulations on the procedure shall be stipulated in a decree. 3. Dissolution of a partnership A partnership is dissolved when one of its parties dies or is declared legally dead. The parties of a partnership are entitled to have the partnership dissolved after a period of reconsideration according to what is prescribed in the Marriage Act (324/29). The parties of a partnership have, however, the right to dissolve the partnership without any reconsideration period if they have uninterruptedly lived in separation for the preceding two years. In cases to dissolve a partnership contacted under this Act, only Finnish courts of jurisprudence are competent authorities. Otherwise, what has been stipulated on divorce, shall apply. 4. Legal effects of a partnership The recognitionof a partnership has the same legal effect as contracting marriage. Prescriptions on marriages and spouses shall apply to the recognized partnership if it has not been otherwise stipulated. As regards application of the Act on adoption and prescriptions by virtue of it, parties of a partnership are not regarded as legal spouses. What is prescribed in the Marriage Act on wedding shall not apply to the recognization of a partnership. 6. Coming into force This Act shall be enacted on this ...... day of ........month 199_. ................................... Translation: Mr Mika Vepsalainen ****************************************************************************** * To subscribe to QUEERPLANET, send mail to: majordomo@abacus.oxy.edu * * In the mail message, enter ONLY the words: subscribe queerplanet * * To unsubscribe to QUEERPLANET, send mail to: majordomo@abacus.oxy.edu * * In the mail message, enter ONLY the words: unsubscribe queerplanet * * Words in the Subject: line are NOT processed! * ******************************************************************************