Constitutional discrepancy of the (existing) regulation of marriage and adoption for same-sex couples

On 16.6.2022, the Constitutional Court adopted an important decision to equalise the rights of same-sex partners with different-sex partners in the area of marriage and adoption of children.

According to the Constitutional Court’s decisions issued on 16 June 2022, the statutory regime, which provides that:

  1. only two persons of different sexes may enter into marriage and
  2. same-sex partners living in a formal civil partnership cannot adopt a child together

is inconsistent with the constitutional prohibition of discrimination.

Since the marriage and joint adoption arrangements under review constitute, in accordance with the Constitutional Court’s finding, impermissible discrimination against same-sex couples, the legislator has a six-month period within which to remedy the constitutional inconsistency found. Activities in this direction are already underway, as the Government approved the text of the draft law on amendments to the Family Code at a correspondence meeting on 15 July 2022 and sent it to the National Assembly under the abbreviated procedure.

Until the unconstitutionality has been rectified, the Constitutional Court has held that (i) marriage is a living union of two persons regardless of gender and (ii) same-sex partners living in a civil partnership may jointly adopt a child under the same conditions as spouses.

The Constitutional Court’s decision does not affect the legal status and rights of different-sex partners but allows same-sex partners to marry alongside different-sex partners. The same applies in the area of adoption of children.

In Slovenia, until the Constitutional Court’s decision, same-sex partners were only able to establish shared parenthood by one partner adopting the other partner’s child (unilateral adoption). Following the Constitutional Court’s decision, same-sex partners living in a formal civil partnership may now jointly adopt a child under the same conditions as apply to different-sex spouses (joint adoption). The choice of the most suitable adoptive parents for a particular child will continue to be made by the social work centre, on whose proposal the adoption will be decided by the court, taking into account the best interests of the child.

With this decision, Slovenia follows European countries that have already allowed same-sex couples to marry and, as a consequence, have equalised the rights of same-sex couples with those of different-sex couples. These are: Austria, Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland and the United Kingdom. Globally, same-sex couples can marry in countries such as the United States, Canada, Argentina, Brazil, Uruguay, Colombia, Ecuador, Costa Rica, Chile, Taiwan, Australia, New Zealand and South Africa.

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