Article, Case comment

Inching Towards an EU-Wide Recognition of Same-Sex Relationships?

Adel Msolly

Introduction

Harmonisation in EU law has been justified as means of facilitating the internal market. Such process has expanded to areas of law not economic in nature, family law being the prime example. Broadening EU competence in family law and thus furthering judicial cooperation in civil matters is necessary to enable free movement of persons and their family members (see Article 81(3) TFEU). As such, EU enjoys competence in family law on conflict of laws matters in matrimonial proceedings, parental responsibility, maintenance and succession. However, family law is one of the areas most laden with socially sensitive issues, every Member State having different values and policies in the field.

Nowhere is this divide in policies more apparent than in the context of recognition of same-sex relationships. Currently, under EU law some Member States have full marriage equality (e.g. United Kingdom[1], Netherlands), some provide for registered or civil partnerships (e.g. Italy, Czech Republic), and some offer no recognition[2] (e.g. Bulgaria, Slovakia). It does not seem likely that there would be a Regulation to legalise same-sex marriage across the EU any time soon. Notwithstanding, the discrepancies in marriage laws across the EU do hamper free movement of persons; just like heterosexual marriage, same-sex marriage and civil partnerships also have consequences in other areas of law, namely property law (for instance, in some Member States certain ways of owning joint property are only available to married couples[3]), succession (how do same-sex spouses or registered partners inherit on their spouse’s death?), among others. Does EU law address this at all?

This blog post will examine the current state of EU law on recognition of same-sex relationships, which is at a standstill. In this context, it is worth mentioning that the Coman case, currently pending before the ECJ, holds great potential for reform. Subsequently, the post considers whether existing EU law on succession and property regimes provides for at least limited recognition of same-sex relationships even in those Member States that do not recognise same-sex relationships outright. Same-sex partners should not need to navigate technical areas of EU law in order to ensure that they can, for instance, inherit the same way a heterosexual married couple would. However, such a limited recognition is a step in the right direction, and may affect attitudes in more conservative Member States, so that one day an EU-wide regime on recognition of same-sex relationships would be viable.

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