The burden of conjugality

Rather than arguing that rights are fundamental and natural to the individual, we should try to imagine and create a new relational right which permits all possible types of relations to exist and not be prevented, blocked, or annulled by impoverished relational institutions. Introduction The case of Burden and Burden v. United Kingdom, decided by the European Court of Human Rights (ECHR) in a chamber judgment by the Fourth Section in 2006, and then its second round as the case of Burden v. United Kingdom, decided in a judgment given by the Grand Chamber in 2008, presented the ECHR with the challenge of addressing the legal consequences of the relationships of two sisters who have always lived together. This chapter looks closely at the judgments in this case, and, after criticising them, suggests an alternative route that would have better respected diversity of forms of human life and of family structures. The discussion will proceed as follows. In the first section below, I will describe the facts of the case. The second section will include a description of the judgments of the Fourth Section and Grand Chamber. The third section will include an internal critique of the reasoning in the two judgments. This will be followed in the fourth section in a discussion that puts the questions addressed in the Burden case in the broader perspective of the limits of the conjugality-centred approach to relationship and family life and will accordingly include a critique of the judgments from that perspective. Finally in the concluding part I will explain the alternative route that I suggest the ECHR could have taken in the Burden case. This will be illustrated in my suggested redrafting of some crucial paragraphs of the Grand Chamber decision, which is to be found at the end of this chapter. The Burden case challenged the notion of equal recognition of different forms of relationship, and illustrates how opening the institution of family life to same-sex couples raises new questions of equality, which touch upon the very notion of what types of relationships are worthy of legal recognition and for which purposes. Because the case was litigated against the background of the introduction of ‘civil partnerships’ for same-sex couples in the United Kingdom, it raised significant questions about the nature of this institution, and more generally about the law’s treatment of people who live together in forms of life which differ from the nuclear heterosexual family.