JUNE 2016

    Frances Hamilton and Lauren Clayton-Helm

A clear choice of law rule should be applied to all same-sex relationships in terms of essential validity. Interest analysis allows us to look at the public policy reasons behind why a choice of law rule may be appropriate or inapposite. This technique can lead to unpredictable results. When coupled with depecage, a delineated splitting of competing policy inculcations, this allows for a more certain rules-based system. Each incapacity to marry should have its own appropriate choice of law rule. This article argues that additional public policy reasons apply to the choice of law appropriate to same-sex relationships. These include citizenship, equality and symbolism, and together require a more extended choice of law rule. It is recommended that a new theory, the continued recognised relationship theory, is suitable for same-sex relationships. This choice of law rule would apply the law where the couple is intending to live, or the law of the country where they have lived, if their relationship has been subsisting for a reasonable period of time. This article advocates that action at the European Union level will lead to more consistent results in this sphere.

same-sex relationships; choice of law; interest analysis; depecage; European Union
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International marriages, comprising a marriage between individuals of different nationalities, are a large proportion of the nuptials which take place in the European Union (EU) every year. Of the annual 2.2 million EU marriages, 350,000 involve an international couple.1 “[R]elational mobility”2 results in a greater variety of family types. There is a still greater variety of family types given the advent of same-sex marriage and civil partnership. Different states across Europe have had a diversity of legal responses across Europe to these new statuses.3 This article responds to this relatively new type of relationship and suggests how it should be treated by private international law. It is essential for a couple to know whether they are legally married.4 The need to settle this question is underlined by the “unparalleled importance of marriage”.5 Many international cases stress this factorisation.6 In the 2015 US Supreme Court judgment of Obergefell v Hodges,7 which licensed same-sex marriage across all states of the US, the majority opinion stressed that the right to marry was “fundamental”.8 The reasons why marriage was given this status included an emphasis upon “individual autonomy”,9 the unique support which marriage gives to a two-person union,10 the safeguarding which marriage gives to children11 and the fact that marriage is regarded as a “keystone of ...social order”.

Marriage is often connected to citizenship13 and is necessary for “full membership of society”.14 Some authors stress the public nature of marriage.15 As well as being considered a fundamental right16 marriage also has strong symbolical importance. For many in the Western world it is seen as the “gold standard”17 or having a privileged status.18 Gay rights groups were initially reluctant to embrace marriage as a goal.19 However, after fully understanding the rights associated with marriage and its symbolical status, these groups have engaged with marriage as a desirable status to be achieved. Marriage does undoubtedly provide the most expansive and generous recognition of rights.20 Under EU free movement law, it is essential to fall within the definition of “family member” in order to access EU benefits and move across the EU as citizens. There is a need for clear rules in this area. Despite this, the law currently stresses subsidiarity and allows individual countries in the EU to determine whether or not to recognise same-sex marriage.21 Following the recent European Court of Human Rights (ECtHR) decision of Oliari v Italy all contracting states will need to introduce some form of protection for same-sex couples to enter into a registered partnership or civil union.22 There continues to be no right to same-sex marriage. This will affect all members of the EU who are also all contracting members to the European Convention on Human Rights (ECHR). Yet there is no requirement as to what type of status need be enacted, leading to a wide variation in the rights granted to same-sex partners. This restrictive approach may mean that a non-EU same-sex spouse or registered partner cannot relocate to the new EU state, or will not have access to all the rights granted in their state of origin. It also represents a failure of the application of the freedom of movement.23 Non-recognition of a foreign marriage means that the right to same- sex marriage is a “meagre right indeed”.

Where several different jurisdictions are involved in a case it is necessary to determine which country’s law applies. The laws of several different countries may be relevant where the case involves a couple of different nationalities or where the couple relocates. The choice of law rule is the mechanism which selects the appropriate law to be applied. In domestic law, there is disagreement about which choice of law rule should be employed in relation to the validity of a marriage (both heterosexual and same-sex). Recognition of a foreign marriage is broken down into two elements: formal validity and essential validity. Formal validity on the one hand looks at the rules and requirements surrounding the actual ceremony, such as the requirement of witnesses and the vows that must be undertaken. This is usually uncontroversial and depends upon the lex loci celebratioinis.25 Essential validity on the other hand covers all aspects of a marriage which are not associated with formalities, the primary example being the capacity to marry. Here, there is much controversy and different theories compete for attention. These are examined in the next section. Most commentators agree that the current law is “baffling”26 and in need of “reformulat[ion] ...”27 Perhaps the necessity of dealing with same-sex relationships28 can be the “new momentum required to re-examine the subject ...”.

This article considers different choice of law rules and recommends that none of the commonly suggested choice of law rules can be applied universally. The focus of this article is to determine which choice of law rule is appropriate to same-sex relationships. Interest analysis30 coupled with a system of rules-based depecage31 allows us to give each incapacity to marry an appropriate choice of law rule.32 It is necessary to consider further public policy arguments in relation to same-sex relationships. We consider arguments based on citizenship, equality and symbolism which call for a more extended choice of law rule for same-sex relationships. We recommend a novel choice of law for same-sex relationships, the continued recognised relationships theory, which is then explained. The applicable choice of law rule should be that of the country where the couple intends to reside, or if their marriage has been subsisting for a reasonable period of time, it should be the law of the country where they previously lived. Consideration is also given as to why it is necessary to engage with this issue at an EU level before finally examining some anticipated objections of our recommendations.