In this week’s spotlight, we look at the recent right for same sex partners to live in any EU member states, including those which oppose same sex marriage. Earlier last month, a European Court ruled that EU nations that oppose same sex marriage must give same sex couples equal residency rights to those which heterosexual partners enjoy.
Case Background
The European Court of Justice ruled in favour of a Romanian gay man’s right to have his US husband live with him in Romania. The American Man, Clai Hamilton was denied residency in Romania with Adrian Coman, his Romanian spouse. Instead he was allowed to stay in the country for 3 months. In this case, Romania argued that the American was not entitled to the same EU residency rights awarded to spouses because same sex marriages are illegal in Romania. However, the European Court of Justice held the term ‘spouse’ was gender neutral. This decision ruled that EU member states must recognise same sex marriages from other EU states and allow same-sex couples the same residency rights that other families enjoy.
Implications
This significant ruling provides that the freedom of residence of an EU citizen can no longer be obstructed by a member state’s refusal to grant residency to their same sex spouse. Still, member states have the freedom to acknowledge marriage between same sex couples or not. This judgement has implications for same sex couples in Romania, Bulgaria, Poland, Slovakia, Lithuania and Latvia. As these former communist countries currently offer no legal protection to same sex couples.
Whilst the European Court of Justice did not mention any need for member states to legislate on same sex marriages, campaigners have argued the legislation of same-sex marriages is a fundamental human right. This is particularly challenging because the opposition to same-sex relationships is fierce in conservative Romania, where homosexuality was only decriminalised in 2002. The European Commission has reinforced their impartiality by insisting the ruling is not a drive from Brussels to force social change in the EU. Margaritis Schinas, a spokesman for the European Commission, stated ‘Member states are in charge – but this is a useful clarification in terms of avoiding discrimination.’
Conclusion
Same sex marriage has been legalised in 24 countries worldwide including England and Wales, Ireland and the United States. Whilst it remains for Member States to decide whether to legalise same sex marriages within their borders, this ruling is a significant step forward to prevent discrimination on the basis of sexual orientation.
At Grayfords, we deal with international cases as well as those solely relating to England and Wales. Our solicitors are happy to offer advice on a range of LGBT+ matters including civil partnerships, same sex marriage, property and asset division, pre-nuptial and pre-civil partnership agreements, children issues and surrogacy.