Marriage is considered to be a universal institution which obviously builds a unity of the family throughout the history.1 Marriage as one of the most important institution often leads us to the conflict of law situations;2 Recognition of the marriage implies status of marriage and other related circumstances which flow from the status.3 In the past, Marriage was essential an element for full membership of the society, with time we witnessed changes of the legal and social status of marriage, the concept of marriage as a unity of male and female has changed.4 More positive and tolerant attitude toward sexual minorities occurred for example; in Northern America and Western Europe while Eastern Europe still trying to create an alternative form5 of the same-sex relationship.6 To tackle situations where different nationals from different countries willing to marry we should take into account two factors – formal and essential validity of marriage, every country has its own Private International law thus, they apply their own rules.
7 Problem can be faced by individuals on basis of sexual orientation related to cross-border marriages when for instance, homosexual couples are willing to marry or get into civil partnership in country of nationality of habitual residence of one of spouse, later decides to move in another MS for staying or situations when partners move in another MS with intention to acquire the status of married couple with the hope that once they back to their home states this status will be recognized 8 Both these cases are related with recognition of the status acquired.9 The family law remains subject to a special legislative procedure.10 In family law issues EU has no competence, but it does have the responsibility to ensure that the right of its citizen while enjoying the freedom of movement within Union. ECJ in its judgments already ruled that each MS is competence for its own family law while making sure that steps taken by MS are in conformity with EU rules and values include non-discrimination principles and free movement provisions.11 Hence, EU can ‘interfere’ and take measures once there is the threat on rights protected under EU law, its situations when MS does not accept and recognize partnership or parental relationship of individuals which can affect different filed of lives include employment issues, social benefits and etc. Thus, it seems EU’s responsibility to ensure that couples and their relationships are recognized in MS while exercising their right to free movement.12Directive 2004/38 (Citizen Directive) allows EU citizens to freely move and reside in Union.13 Directive without further clarification refers to term ‘spouse’ which in the language of the directive is gender and orientation neutral.
These basically motivate some MS to refuse from Homosexual marriages conducted in another MS. Lack of recognition of civil statuses derived from rainbow relationships is in breach with the right of free movement of sexual minorities, even if the MS tries to base an argument on public exception clause which allows derogation from free movement provisions. In certain cases ECJ ruled that each MS is capable for its own family law, bearing responsibility that all measures taken will be in conformity with EU rules and values include the principle of non-discrimination and free movement provisions. With regard to difficulties arising from free movement of EU citizens, according to ECJ MS might be ‘excused’ if there is the possibility for justification of the obstacles on basis of objective considerations and also by proving that it’s proportionate to’ legitimate objective on national provisions’.
ECJ also explained that the public exception provision should be applied in a restrictive manner.14 1 New Word Encyclopedia, visit: http://www.newworldencyclopedia.org/entry/Marriage 2R.
Dosi, ”Validity of Marriage and Conflict of law”, ILI Law Review, 2010, pg.269, visit: https://www.scribd.com/document/98881732/Validity-of-Marriage 3 M. Bailey, ”Same-Sex Relationships across Borders”, McGill Law Journal, 2004, visit: http://www.lawjournal.mcgill.ca/userfiles/other/4801407-49.
4.Bailey.pdf 4 R.
Frimston, ”Marriage and non-marital registered Partnerships : A European Perspectives of Private International Law”, 5 Hungery introduce civil partnership in 2009, Estonia passed a civil partnership law in 2016 and ect.6 J. Eekelaar, ”Family Law and Personal Life”, Chapter 6 ‘The Central Case of Rights’, 2006, Pg.132.7 R. Dosi, ”Validity of Marriage and Conflict of law”, pg.
2698 D. Gallo, L. Paladini, el., ”Same-Sex Couples before National, Supranational and International Jurisdictions”, Springer Science & Business Media,2013, pg.364 9 Ibid, pg.
36510 visit: S. Peers, ”Guide to EU decision-making and justice and home affairs after the Treaty of Lisbon, University of Essex, A Statewatch publication, PO Box 1516, London N16 0EW UK, 2010, pg.9, note: The Council acts unanimously after consulting Parliament.
The Council may decide that certain aspects of family law with cross-border implications can be the subject of regulations adopted in accordance with the ordinary legislative procedure. In this case the proposal is notified to national parliaments. If a single national parliament is opposed then this will prevent it from being adopted11 S.
Marinai, ”Recognition in Italy of Same-Sex Marriages celebrated abroad – ‘the Importance of a Bottom-up Approach”, European Journal of Legal Studies, vol 9 No.1, pg.1412 Report on ”Round Table on Rainbow Families: from mutual recognition of rights in the EU to national strategies on marriage equality and/or civil union laws” ILGA EUROPE, Foundation DOTS, 2015, PG.2 13 European Union, Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, 29 April 2004, 2004/38/EC, available: http://eur-lex.europa.
eu/legal-content/EN/TXT/?uri=celex:32004L003814 A. Tryfonidou, ” Same-Sex Marriage: The EU is Lagging Behind”, 2015, visit: http://eulawanalysis.blogspot.com.mt/2015/06/same-sex-marriage-eu-is-lagging-behind.html