Freedom of Movement for Rainbow Families

The Question of Cross-Border Recognition

Abstract

This study explores how European Union law currently guarantees the right of same-sex married couples to freedom of movement and residence, what additional rights may be derived from this fundamental freedom, and what types of legal and political measures are necessary to ensure that rainbow families enjoy the right to free movement in cross-border situations within the EU.

Under EU law, Member States are now required to recognise the parenthood established in another Member State, particularly when it concerns the exercise of rights deriving from Union citizenship – such as the right to enter and reside in another Member State, the right to equal treatment, and the right to obtain travel documents for a child. However, EU law does not impose an obligation to recognise parenthood established in another Member State for the purposes of rights deriving from national law, such as inheritance, maintenance or parental responsibility.

It is assumed that EU law on the free movement of persons – as a non-discriminatory fundamental right – places an obligation on Member States to recognise same-sex marriages concluded in other Member States. This recognition ensures the cross-border portability of such marriages as a civil status throughout the EU. Furthermore, the refusal to recognise a same-sex marriage concluded abroad may be interpreted as an obstacle to the free movement of Union citizens. Such a restriction on a fundamental freedom is difficult to justify on grounds of public policy, public interest and/or national identity.

The method used to confirm or invalidate the hypothesis is through the analysis of the jurisprudence of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). Particular significance is attributed to two CJEU cases addressing the freedom of movement for rainbow families: the Coman and Pancharevo judgments.