Justice of the Supreme Court Haralambos Mahairas is planning to enter a motion before the 1^st Political Department of the Supreme Civil and Criminal Court of Greece to hold the marriage between two women in Tilos on June 2006 as inexistent, on the grounds that the law in force leaves no room for marriages between people of the same sex.

The hearing of the case, which was postponed until November, gives the Supreme Court the opportunity to “abandon introversion in its rulings and proceed to an interpretation of the legislation that will be in accordance with the facts and changes taken place in customs and society”, underscores Vasilis Hirdaris, the couple’s lawyer, and notes that the same sex marriage has already been allowed in ten European states.

Nevertheless, as the Justice of the Supreme Court stated in his motion, our legislation is prohibitory. It is also stressed that both the Constitution and the European Convention on Human Rights recognize the right of espousal and family in both sexes, without though providing a clarification forthwith on whether the couple can be of the same sex. They refer the case to the national legislation, where according to the Justice of the Supreme Court the different sexes of the couples constitute an almost universal presupposition of the wedlock existence.

Therefore, the Justice of the Supreme Court suggests the rejection of the couple’s final appeal against the inexistent wedlock judgement of the Court of Appeals of Dodekanisa as unfounded, by highlighting: Under the Civil Code order, the diversity in the sex of the couple to be married is considered self-evident. Furthermore, the reference to the couples as “to be married” and “spouses” in the provisions of the Civil Code hardly leads to the conclusion that it was made in order to show that the Civil Code henceforth acknowledges the civil same-sex marriage as well.

The lawmaker’s intention is supported by the fact that the recent law concerning the cohabitation agreement exclusively concerns couples of different sex (nonetheless, the Ministry of Justice has announced that same-sex couples are to be included). No resolutive argument is deduced by the Article 12 of the ECHR in favor of the recognition of the same-sex civil marriage, as both sexes are discerned there as well. The same applies to the International Covenant on Economic, Social and Political Rights. Finally, the Justice of the Supreme Court indicates that the European jurisprudence rules and expressly aligns itself with the broadening of the term ‘family’ by including the same-sex couples, but has not yet expressly decided on how this will be done, i.e. in what legal form, for instance the cohabitation agreement or something else.