Same s.ex marriage and free movement?

[Directive/2004/38/EC]

6 EEA countries now have same s.ex marriages. Additionally Canada, Argentina, and some big US states marry same s.ex couples.

In theory this should allow the non-EU citizen free movement rights within the EU as the spouse of the EU citizen. The document they would produce is a simple normal marriage certificate.

Extract from primary family member definitions:

(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

Does anyone in same-s.ex marriage have any experience with applying (under European law) for an Visa or Residence Card? All straight forward? Are you legally married, and if so where was the marriage?

Note: I earlier posted on the Irish forum, but did not get a substantial reply. I hope there is more experience in the more active UK EU law community!

[Directive/2004/38/EC]

State of the Netherlands v Ann Florence Reed. [1986] EU ECJ R-59/85 (17 April 1986)

14 ARTICLE 10 ( 1 ) OF REGULATION NO 1612/68 PROVIDES THAT CERTAIN MEMBERS OF THE ' FAMILY ' OF A WORKER , INCLUDING HIS ' SPOUSE ' , IRRESPECTIVE OF THEIR NATIONALITY , ' HAVE THE RIGHT TO INSTALL THEMSELVES WITH A WORKER WHO IS A NATIONAL OF ONE MEMBER STATE AND WHO IS EMPLOYED IN THE TERRITORY OF ANOTHER MEMBER STATE ' .

15 IN THE ABSENCE OF ANY INDICATION OF A GENERAL SOCIAL DEVELOPMENT WHICH WOULD JUSTIFY A BROAD CONSTRUCTION , AND IN THE ABSENCE OF ANY INDICATION TO THE CONTRARY IN THE REGULATION, IT MUST BE HELD THAT THE TERM ' SPOUSE ' IN ARTICLE 10 OF THE REGULATION REFERS TO A MARITAL RELATIONSHIP ONLY.

[alexandrette]

Hi Directive

I have applied for residence card a month and a half ago as civil partner/spouse of an EEA national and already got COA. We entered into civil partnership in the council where usual marriages take place and we have civil partnership certificate. I do not believe that has been treated separetely. As I remember I had to certificate of approval to get married and I got it in a month which was a lot quicker than most of the people.

Now waiting for RC. As long as you submit evidences which would support your claim of having a genuine relationship your case would have been treated as normal.

I hope this helps and I will update as soon as I hear anything.

ALex

[Directive/2004/38/EC]

alexandrette,

This is actually a question of same s.ex marriages, which are done in several EU member states but which are not performed in the UK. The question is really functionally/legally how well they are recognized for the purposes of free movement in Europe.

[Greenie]

alexandrette,

This is actually a question of same s.ex marriages, which are done in several EU member states but which are not performed in the UK. The question is really functionally/legally how well they are recognized for the purposes of free movement in Europe.

same sex marriages (civil partnerships) are allowed in the UK. Not sure what you mean?

[Directive/2004/38/EC]

Same gender marriages (civil partnerships) are allowed in the UK. Not sure what you mean?

Civil partnerships are not legally the same as marriage. Similar, but it is a distinct system.

In a number of countries, e.g. Canada, Spain, Sweden, Portugal, a marriage can be between two men or two women. You end up with a normal marriage certificate, just like a heterosexual married couple gets.

I am wondering, e.g., whether marriage certificates from a same s.ex marriage in one of these countries, is accepted smoothly and easily when the couple move to the UK (assuming one is an EU citizen and the other is not).

[Kitty]

I haven't come across this situation In Real Life, but ECI Chapter 5 refers to the relevant IDIs in respect of the validity of marriages/civil partnerships, and the relevant IDI is Chapter 8 Section 2 Annex H, which says:

Some people may have already formed a civil partnership or had a same sex marriage abroad. In certain cases this relationship will be recognised in the UK as a civil partnership and the partners will be treated as if they had formed the civil partnership in the UK. Schedule 20 to the Civil Partnership Act 2004 sets out a list of recognised foreign civil partnerships...

Then there is a list of recognised partnerships/marriages.

In terms of EEA free movement, is there any differential effect in redefining overseas marriages as "civil partnerships"?

[Kitty]

As an aside to your original question, Directive 2004/38, I noticed that the list of recognised partnerships includes the French Pacte Civil (PACS). Different- as well as same-sex partners can register a PACS, so what is the status of a male/female PACS couple as regards free movement?

I've only seen a PACS entered into by a couple who had been together so long they had no trouble satisfying the durable partner requirements. But is a straight couple in a PACS discriminated against by being treated as an extended family member, when a same-sex PACS couple would meet the family member requierments?

Hmmm.

[Directive/2004/38/EC]

As an aside to your original question, Directive 2004/38, I noticed that the list of recognised partnerships includes the French Pacte Civil (PACS). Different- as well as same-gender partners can register a PACS, so what is the status of a male/female PACS couple as regards free movement?

I've only seen a PACS entered into by a couple who had been together so long they had no trouble satisfying the durable partner requirements. But is a straight couple in a PACS discriminated against by being treated as an extended family member, when a same-gender PACS couple would meet the family member requierments?

The civil partnership of primarily family member list does not explicitly mention same s.ex couples. So it applies equally to mixed and same s.ex couples.

Interesting note about the PACS!

In terms of EEA free movement, is there any differential effect in redefining overseas marriages as "civil partnerships"?

I do not think so, since civil partnerships are recognized in the UK, and so they are equivalent of "spouse" from the perspective of the EU regs.

It could make a big difference in those member states where civil partnerships are not recognized in local law.