Family &lt;i&gt;vs&lt;/i&gt; solidarity&lt;br&gt; Recent epiphanies of the Italian reductionist anomaly in the debate on &lt;i&gt;de facto&lt;/i&gt; couples

Matteo Bonini Baraldi

doi:10.18352/ulr.73

Abstract

Whilst the academic world has already started analysing the legal recognition of de facto couples ( coppie di fatto ), even more so since the Italian Parliament began discussing the Bill on the Patto civile di solidarieta (Pacs), the political debate on de facto couples has become more and more articulated after the Government drafted its bill on ‘Rights and duties of cohabitants’ (DiCo) early in 2007. Subsequently, the Italian Parliament recast previous proposals, including the governmental one, in a new bill introducing the ‘Contract of solidarity union’ (CUS). In this paper, both the general orientations and the specific traits of each of these three bills will be reviewed, against the background of both European and global experiences and good practices. It will be argued that, whilst there are significant differences in the general inspiration that characterises each bill, the reductionist concept of ‘solidarity’ runs across them as a common thread. Acknowledging the importance of this concept, it is claimed that the focus on reductionist solutions is derived from a frame of reference characterised by the binary approach of the Constitutional court and scholars alike, which insulates the traditional family from critical review and confines all other cohabitation arrangements within the boundaries of ‘solidaristic’ unions. It will thus be speculated that the Italian anomaly lies precisely in the fact that reductionist legislative solutions have up until now been presented by mainstream discourse as the maximum of legal protection that may be supported. It is argued that this approach neglects both the specific problem of marital equality for same-sex couples and the problematisation of broader concepts of masculinity and homophobia in Italian society. While maintaining that the Italian debate on de facto couples is deficient in terms of both the internal law reform process and openness towards foreign legal schemes, as recent court cases demonstrate, it is concluded that the way out of the present cul-de-sac could be more easily found once legal scholars accept that the right questions to be asked are different from the ones asked thus far.

Highlights

Taking family matters seriously is a distinct, internationally renowned trait of Italian culture
Due to diffuse and diehard prejudices in many parts of Italy, men and women continue to face discrimination based on a personal characteristic such assexual orientation
The stereotypes which branded the former with characteristics of unreliability or sickness still contribute to ensuring that same-sex couples remain at a distance from ‘conjugality’, the socially recognised place – whether we like it or not – for profound commitment and the most significant existential dynamics of love, care, and moral and material communion

Summary

The constitutional debate on same-sex families

Vs solidarity – Recent epiphanies of the Italian reductionist anomaly in the debate on de facto couples declaration given by the parties according to existing rules governing the population registry which, as maintained by the explanatory notes, already has the institutional mandate of ‘ascertaining and certifying’.30 To be sure, it was already a legal duty for everyone to declare to the population registry his or her eventual cohabitants. The Italian Constitutional Court has held on various occasions that the reason for upholding differential treatment lies precisely in a legal, non-factual difference (marriage is a relationship encapsulated in a legal scheme which guarantees certainty and stability, cohabitation is uncertain and unstable) This bill magically ensures that cohabitation between unmarried partners remains a de facto phenomenon, unable and unfit to pierce the juridical realm, the sanctuary of marriage and the traditional family. There is absolutely no mention of the implications of a relationship breakup: it is only said that ‘rights terminate’

The Parliamentary compromise: towards a ‘contract of solidarity union’?

Global issues and Italian policies towards foreign regimes

Conclusion