Academic journal article The Journal of Gender, Race and Justice

Interstate Recognition of Same-Sex Relationships in Europe

Academic journal article The Journal of Gender, Race and Justice

Interstate Recognition of Same-Sex Relationships in Europe

Article excerpt


In 1 989 a new institution, registered partnership, was born. During its infancy, registered partnership developed slowly, and those in the vicinity nurtured its personality. Even during its early days registered partnership remained relatively unaffected by outside influence. Yet, with the onset of adolescence things began to change and a period of progress dawned. New and exciting external influences demanded that registered partnership change and adapt. Confronted with new ideas and perspectives, registered partnership had to fight for its territory and determine where its boundaries lay. As its adolescence drew to a close, registered partnership began to mature, find its own path, and recognize its core value system. Although its upbringing and roots had left indelible marks on its personality and character, registered partnership had, after painstaking development, managed to mold itself and become an individual. With a turbulent time behind it and the tests of maturity and old age yet to come, it seems clear that registered partnership has managed to carve a little piece of the world for itself.

Although the story appears to end happily with non-marital registered relationships woven into the fabric of family law in Europe, it is not true that all's well that ends registered.1 Although more than fifty jurisdictions worldwide have created non-marital registered relationship schemes, a couple registered in one country can still face problems as soon as they cross the border and leave the territory where their relationship was originally registered. The question arises how one can best solve this and many other private international law problems.

One could begin with the harmonization or unification of substantive family law in this field.2 Although the battle lines have been drawn between those who believe in the desirability of harmonizing or unifying substantive family law and those who believe otherwise,4 this Article does not address that debate. It has been presupposed that irrespective of whether the harmonization or unification of family law in this field is desirable, it is evidently not feasible.5 As is the case with matrimonial property law,6 it is possible to differentiate a number of models of relationship registration. Although one may prefer one model over others, the eventual choice may simply be no more than an amalgamation of socio-political and legalstructural factors. At this time it is therefore possible that any attempt to harmonize or unify the substantive law rules in this field would be unsuccessful.

Bearing this in mind, the search for answers to the aforementioned problems turns to the domain of private international law.7 Questions of jurisdiction, choice of law, and the recognition and enforcement of judgments will inevitably arise with respect to non-marital registered relationships. With more than six million European citizens migrating yearly, coupled with the one and half million third-country nationals moving to the European Union each year, the number of cross-border familial relationships is likely to rise.8 This rise leads, in turn, to an increase in the number of cases with an international element, and thus an increase in the resort made to private international law. As long as private international law rules remain national, application of these rules could lead to decisional discord and limping relationships. As a result, the harmonization or unification of private international law rules with respect to non-marital registered relationships is desirable.

After a brief summary of the present domestic institutions for nonmarital registered relationships currently operating throughout Europe (Section 2), this Article's focus will shift to how three countries deal with the recognition of foreign relationships (Section 3). I have selected these three countries, Belgium, the Netherlands, and the United Kingdom, to illustrate the differences in approach and result. …

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