ECJ advises all EU nations must recognise same-sex couples: What does this mean for LGBTQ people?

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Planning a move abroad is an exciting but stressful experience for any couple.

For same-sex couples, there’s an extra (and annoying) hurdle of whether their partner will even be allowed into the country. Even when they are happily married back home, they don’t have to travel far to find that their marriage is not only unwelcome, but could put the couple in danger.

When Adrian Coman moved back to his native Romania in 2013, he assumed that his American husband, Claibourn, would move there with him. Unfortunately for the couple, Romania does not legally recognise same-sex marriages; up until 2002, homosexuality was still a criminal offence.

Romania did not recognise their marriage and Claibourn was only allowed to stay in Romania for three months before he had to return to the USA. The couple stayed in the USA whilst they went through several court hearings, hoping that Claibourn would be allowed in as Adrian’s husband, eventually ending up at the European Court.

In what is undoubtedly a positive step for LGBTQ rights, the European Court has ruled that Claibourn should be allowed to live in Romania as Adrian’s husband. ‘Spouse’ was found to refer to married people, regardless of gender, even if a particular country doesn’t allow same-sex marriages. The decision is helpful in showing that same-sex couples should be treated equally to heterosexual couples.

What it means in practice is that same-sex couples can set up a new home elsewhere in the EU, even if that country does not recognise or allow same-sex marriages. Although it’s a helpful decision, it is also a timely reminder of the difficulties same-sex couples have to face.

Nick Karvounis via Unsplash

As with any news story these days, Brexit is inescapable. No one yet knows what post-Brexit Britain’s relationship will be with the remaining EU27, but the movement rights which Britons enjoy throughout the EU only continue whilst the UK is a member, Claibourn’s residency was only granted because Adrian is an EU citizen exercising an EU right.

With so much uncertainty about the UK’s own marriage to the EU, it is difficult to say when these free movement rights will end for Britons or what, if anything, will replace those rights. For any same-sex couples planning a move to continental Europe, now may be a good time to go.

Globally the situation is even messier. Same-sex couples travelling abroad, let alone moving, cannot assume that the nature, status and even legality of their relationship may be treated the same when moving across borders and in fact could be treated completely differently. Parents in particular should take care; whilst you may be treated as a parent in one country, you may have no legal rights or responsibilities for your child in another. Whether for a permanent move or just a holiday, LGBTQ travellers should always check the latest travel advice for their destination of choice to avoid trouble in paradise. Punishments for homosexuality range from fines to prison sentences to hard labour and even execution.

Romania is one of six EU countries, along with Poland, Slovakia, Bulgaria, Lithuania and Latvia, which does not allow or recognise same-sex marriage or any kind of civil partnership, putting them out of step with most of the EU. It is hoped that this decision will open up the debate in those countries. It is worth noting that the European Court, often accused of meddling in home affairs, did not say that same-sex marriages must be made legal. That is still up to individual countries to decide.

At least in terms of moving within the EU, this decisions puts homosexual couples on an even footing with heterosexual couples. It is of course disappointing that it took Adrian and Claibourn five years to reach this point or that they had to go to court in the first place. Many will also be frustrated that the European Court did not go further and give same-sex couples full equality.

James Carroll is a specialist family law practitioner at Russell-Cooke LLP, and Richard Booth, a trainee solicitor at the firm. Further information can be found through James’ website profile here.

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