Trust and Probate Litigation partner Emma Holland and Divorce and Family senior associate Jenny Duggan spoke at a conference on gender and inclusivity in international families organised by the International Association of Young Lawyers (AIJA) on 23 June 2022. Emma and Jenny co-moderated a panel discussing ‘The End of The Rainbow – Disputes within LGBTQ+ Families’. Members of the panel included lawyers from Brazil, Switzerland, France and Spain.
The panel recognised that many of the issues they wanted to discuss had arisen because the law has not kept pace with the evolution of the concept of the modern family, which has caused particular issues for the LGBTQ+ community. This is not helped by outmoded terminology that fails to take into account evolving societal attitudes and developments in reproduction technology.
The topics covered included:
Marriage, divorce and cohabitation of same-sex couples
The panel reflected on the status of same-sex spouses and civil partners in their respective jurisdictions and the protections afforded to cohabiting same-sex couples. It was observed that cohabitees tend to have far less default protection, although, in Spain and France, there was some legal acknowledgement of their status. There was a discussion about the developments in the pipeline for changes in the status quo for same-sex couples, particularly in Switzerland, which has introduced marriage for all as of 1 July 2022.
Disputes arising from wealth planning steps for LGBTQ+ families
The panel considered how the traditional wording used in wills and trusts fails to accommodate LGBTQ+ families. It was interesting to observe that none of the jurisdictions considered appears to have statutory definitions of family. It seems common law jurisdictions look at the intestacy rules, while civil law jurisdictions are often guided by the forced heirship provisions. The panel explored whether the courts in their respective jurisdictions would assist if the wording is not fit for purpose, for example, if there is a lack of clarity as to whether same-sex spouses or non-biological children are included. It then moved on to consider the non-court solutions that are available. The perspectives of the different jurisdictions were wide-ranging, particular as some did not recognise trusts.
Cross-border issues concerning children
The discussion explored the legal recognition of parents within the LGBTQ+ community, particularly when there is an international relocation. It then touched upon issues arising from surrogacy arrangements, particularly on the parents’ separation. The panel shared observations on the fall in international adoptions before the session, but time did not allow it to be discussed on the day.
All the jurisdictions represented had made progress in recognising the rights and needs of the LGBTQ+ community. However, the panellists agreed that more could be done to improve the situation and address how the concept of the modern family continues to evolve.
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