Rethinking Conjugality as the Basis for Family Recognition: A Feminist Rewriting of the Judgment in Burden v. United Kingdom

In Burden v. UK, elderly cohabiting sisters unsuccessfully challenged their exclusion from civil partnerships. They claimed this exclusion was a violation of the prohibition of discrimination (Article 14) and the right to peaceful enjoyment of property (Article 1 of Protocol 1) under the European Convention on Human Rights because the surviving sister would be liable to pay inheritance tax whereas a lesbian couple could avoid this liability by registering a civil partnership. The facts of the case and the judgments by both the Chamber and Grand Chamber of the European Court of Human Rights raise interesting questions about the extent to which it is justifiable to base legal protections on conjugality. In this paper, I will explore these questions and consider how the judgment could be rewritten from a feminist perspective.