Chapter 7 - Supranational European Law of the Future: Cross-Border Recognition of Same-Sex Marriages in Full

Summary

Introduction: Why Recognize a Civil Status in Full?

The European supranational courts have explicitly abstained from rulings on the issue of status validity, choosing instead to underline the obligations of States in narrowly defined areas. Meanwhile, in their previous case-law on cross-border recognition of civil status, they have not explicitly disengaged from private international law, or ruled that their rulings are only relevant “for the sole purpose of” a narrow effect.

The “whole status” approach, which is discussed as de lege ferenda in this chapter, illuminates the essence of cross-border recognition in private international law and also gives clarity to the legal effects of a status lawfully concluded abroad. If the status is recognized as a whole and in full, that is, both in substance and in form, there is a strong presumption that certain effects must follow. Separate choice-of-law rules determine the law applicable to a certain effect, and adequately, the extent of the legal effects.

Most of this chapter will concern suggestions on how the future of European law should arguably develop or be interpreted in the future. The interpretation is mostly suggested as to be developed in case-law, rather than a set of legal rules to be adopted at EU level. There is no plan to adopt such a set of rules in the future. The EU LGBTIQ Equality Strategy, adopted in November of 2020, envisages choice-of-law rules on cross-border recognition of parenthood of same-sex couples, but not choice-of-law rules on recognition of marriages or registered partnerships.

The said case-law interpretation has not yet been developed. The chapter first discusses EU primary law and Articles of the ECHR, which in the future should be of utmost significance in cross-border recognition of same-sex marriages (section 7.2). The chapter then includes an analysis of the possibility of crossborder recognition of registered partnerships ( section 7.3 ). Furthermore, the analysis of dissolution of the status is discussed, considering that it encompasses the issue of validity of status ( section 7.4 ).