Preserving Marriage as a Union Between a Man and a Woman in the Law of North Macedonia: A De Lege Ferenda Perspective

Abstract

The traditional model of marriage is the subject of intense debate, as LGBTI rights movements call for an expansion of the concept of marriage. This paper examines whether there are present-day institutional, family, reproductive, parental and social reasons for preserving the statutory definition of marriage as a union between a man and a woman in North Macedonia in light of evolving European human rights standards. It combines normative, case-law and comparative analysis with a review of legal, sociological and empirical literature, including scholarship and judicial opinions that reach the opposite conclusion. Article 6 of the Law on the Family defines marriage as a union of a man and a woman, and Article 15 requires that it be concluded by two persons of different sexes, while the Constitution leaves the regulation of legal relations in marriage to statute. The institution’s reproductive dimension must be distinguished from a particular couple’s capacity to have children, which is not a legal condition for marriage. The empirical studies on family structure reviewed support the importance of family stability and parental responsibility for children’s well-being but do not examine parents’ sexual orientation. The European Court of Human Rights requires States to provide legal recognition and protection for same-sex couples but leaves them a margin of appreciation as to the form of recognition, which need not be marriage, whereas the Court of Justice of the European Union requires same-sex marriages concluded in another Member State in the exercise of free movement to be recognised for the purposes of EU law, without obliging States to provide for them in national law. Separate legal regimes govern the conditions for concluding a marriage, marriages with a foreign element and protection against discrimination. Answering the research question in the affirmative, the paper recommends de lege ferenda that the statutory definition of marriage be preserved, including in the future Civil Code, a position grounded in the institutional character of marriage, its family, reproductive and parental dimensions and the social interest attached to it rather than in historical continuity alone. At the same time, the rights and interests of same-sex couples should be regulated separately and effectively, in accordance with constitutional guarantees and international obligations, with due respect for human dignity, equality and the prohibition of discrimination.