Information Note on the Court’s case-law No. 2

January 1999

Saucedo Gómez v. Spain (dec.) - 37784/97

Decision 26.1.1999

Article 8

Article 8-1

Respect for family life

Lengthy cohabitation constituting family life within the meaning of Article 8

Article 14

Discrimination

Refusal to grant the family home to the applicant on her separation from her partner, on the ground that the right she claimed could only arise where the couple were married: inadmissible

The applicant, who was already married, and A.R. cohabited from 1974 to 1992.  She could not marry him because, at that time, divorce was not allowed in Spain.  The applicant, her daughter and A.R. lived in accommodation belonging to A.R.  Following the breakdown of the relationship, the applicant lodged an application in which she asked the judge to declare her separated from her partner and to grant her the use of the family home and pecuniary provision.  The judge dismissed her requests, stating that the relevant legislation did not provide for cohabitation based solely on the will of the parties concerned.  The applicant lodged an appeal which was dismissed by the appeal court on the grounds that the right claimed by the applicant could only arise where a couple was married and that cohabitation could not be equated with marriage, particularly as no children had been born of this cohabitation and because the applicant could have regularised her marital situation, following the entry into force in 1981 of a law authorising divorce.  Her subsequent appeals were also dismissed. The applicant contends that the reasons for which the judge refused to grant her the right to use the family home constitute discriminatory treatment and infringe her right to respect for her family life.

Inadmissible under Article 8 in conjunction with Article 14: There is no doubt that the existence of a family life may be assumed in the case of a couple who lived together for 18 years.  The differences of treatment between spouses and cohabitees with regard to the granting of the family home pursue a legitimate aim and can be objectively and reasonably justified (protection of the traditional family). The applicant had more than 10 years in which to seek a divorce from her estranged husband between the introduction of divorce in Spain and her separation from A.R.  The court of first instance dismissed the applicant’s request that she be granted the family home on the grounds that she did not provide evidence to justify such a measure, and the application for pecuniary provision was dismissed on the grounds that she had failed to show that the separation had resulted in an economic imbalance in favour of A.R.  It is true that the appeal court departed from this line of reasoning and cited other grounds for dismissing the appeal, but it did accept the facts and grounds on which the decision appealed against was based.  Even if discrimination had taken place at this level, it would not have been disproportionate, especially since the applicant freely decided not to benefit from the advantages inherent in the status of spouse by not regularising her situation with A.R.  It is not for the Court to dictate or indicate to states the measures that should be taken with regard to the existence of stable relationships between men and women who live together as a couple without being married.  This is a question on which states enjoy a margin of discretion: they are free to decide what measures to take provided they meet the requirement of respect for family life.  The decisions complained of did not result in discriminatory interference in the applicant’s family life: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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