Private international law aspects of same-sex marriages and partnerships in Europe – Divided we stand?

Family law has undergone a radical change over the last twenty years or so. While marriage previously dominated the field, leaving very little room for non-married couples, whose situation was mainly characterised by the absence of firm legal principles, the recent decades have seen the rise of new legal institutions affording a measure of legal protection to couples outside marriage. This has coincided with the desire to ensure that same-sex couples could find a place within the law. As a result, the landscape of family law has profoundly changed.

If one examines the current stand of the law, it becomes clear that following this evolution, a few common points stand out while substantial differences remain. Whereas a large number of countries have created the possibility to register unions different from marriage, not all of them have done so. Some countries have shown indifference to the idea, other have demonstrated clear reluctance, sometimes even outright rejection. Among the countries which have created 'partnerships' and other new forms of relationships, the diversity is obvious, with some countries offering a close copy of the marriage, while other have opted for a less favourable regime. Finally, a handful of countries have opened up the possibility of marriage to same-sex partners.

From the outset this evolution has been closely studied from the private international law perspective. In view of the ever increasing mobility of persons within the EU and beyond the conflict of laws treatment of same-sex marriages and partnerships is indeed far from a purely theoretical concern.

The cross-border aspects of these relations have already been documented in a number of fundamental studies. Some years down the road, it appears useful to pause and wonder whether the difficulties and problems uncovered in these studies have been resolved. To this end, this paper intends to offer a general review of the private international law of same-sex relationships, focusing on the situation in Member States of the European Union. Because of the number of countries whose laws will be examined, we intend to adopt a bottom-up approach, starting not so much from general questions and problems, but rather from a close examination of the private international law rules pertaining to same-sex relationships (marriages and partnerships) in Europe.

From this examination it will be possible to determine whether and on what issues there exists a consensus among the countries concerned on the treatment of same-sex relationships. This will be done by looking first at the possibility for same-sex partners to access a specific status. In a second stage, the enquiry will focus on the consequences arising out of a particular status. From there the paper intends to identify the difficulties arising out of the lack of consensus. In a final chapter, some thoughts will be offered on the way forward – in particular assessing the merits of a global or European solution to tackle cross-border recognition problems.