The Recognition of Same-Sex Marriages Abroad
As of October 2017, same-sex marriage has been legalised in 25 countries across the world. The issue of same-sex unions has always been inherently controversial with political, religious and societal views often at odds with one another. But, more and more, equal rights and anti-discriminatory laws prevail and progressive societies worldwide have welcomed change. The rate of progress with respect to same-sex unions including marriages is promising but notwithstanding this, couples are still experiencing inequalities or difficulties when cross border issues arise. This can be complicated further where there are children involved.
The wave of change
Whilst the issue of marriage equality will always divide society, the pace of change is quickening. Back in 1989, in a pioneering move, Denmark became the first country in the world to legally recognise same-sex unions. This development set the precedent for the formal recognition of same-sex partnerships and other countries started to follow suit. In April 2001, The Netherlands became the first country to introduce same-sex marriage, followed by Belgium in June 2003. What flowed from this was a gradual acceptance and recognition of same-sex marriages, predominantly in Western Europe and both North and South America.
- In June 2017, Germany became the 15th European country to legalise gay marriage. The first same-sex marriages took place in October 2017 as the country embraced long awaited change.
- Same-sex marriage also became legal in Malta when a bill was passed in July 2017. The matter is currently pending.
- Voting has just taken place in Australia in the same-sex marriage debate, with the deadline for all ballots in the voluntary postal survey due by 7th November 2017. Whilst the outcome will not be legally binding, the role of the ballot is to inform and will prompt politicians to consider a change in the law depending on whether the country says ‘yes’ to the question, “Should the law be changed to allow same-sex couples to marry?”
- Further, Taiwan became the first country in Asia to legalise same-sex marriages after a ruling by the country’s highest court in May 2017. The parliament has two years to enact or amend present legislation to address the matter so as of now, same-sex marriage is pending. If changes are not implemented, couples will be able to register their relationship under present laws. This represents a monumental step for a region which is severely prejudiced towards same-sex relationships and where persecution is widespread due to the divergence between social acceptance and political and religious tolerance.
|Year same-sex marriage was legalised||Country|
Norway and Sweden
Portugal, Iceland and Argentina
France, Brazil, Uruguay, New Zealand
United Kingdom (excl Northern Ireland)
Ireland, United States (nationwide), Luxembourg
Colombia, Greenland (territory of Denmark)
In some countries such as Mexico, same-sex marriages have been legalised but not all states. A change in legislation in Malta and Taiwan is pending.
The legal anomaly
Whilst same-sex marriage has become possible in many countries worldwide, elephant traps exist where laws are not harmonized. Recently, Pink News reported on a couple, living in England, who had validly converted their civil partnership to a marriage. Leandro and Francois entered into a civil partnership in 2008 and later converted their civil partnership to marriage. So far so good as concerns legality in England and Wales. The couple then decided to move to Francois’ native France with their adopted son but were stopped in their tracks. The story goes that the French authorities have refused to recognise the English marriage as the marriage was not conducted in such a way as to accord with French law, primarily that there needed to be a marriage ceremony (the conversion to marriage in English law is applied retrospectively so the date of the marriage is backdated to the date the civil partnership was formed) and the date on the marriage certificate must correspond with the date of the marriage itself. The couple (along with many others) are therefore left in the troubling position of not being able to have their marriage formally recognised in France. More concerning still is that the status of the couples’ adopted son would be put in jeopardy with their marriage not being legally recognised in France. Re-marrying in France is also not an option for the couple because under French law, you cannot get married in France if you have been legally married elsewhere and are indeed still married. The situation is puzzling to say the least. The French authorities have advised the couple to get divorced and then remarry so as to be married in accordance with French law. Understandably, the couple are unwilling to do this but they are now caught in a web of bureaucracy and illogicality with no solution in sight. Crucially, the couple do not have grounds for divorce under English law in any event given that their marriage has not ‘broken down irretrievably’.
So what does this mean for couples who are legally married in one country but whose marriage cannot be recognised in another? Unfortunately, there is no immediate solution and couples will usually be bounced from pillar to post between different political and legal authorities, quite possibly leaving them in limbo until a change in the law is made. With one in ten adoptions in England in 2016 being to same-sex couples, the situation could be complicated further if the marriage and subsequent adoption cannot be recognised abroad. (Department of Education, 28 February 2017)
The problem is exacerbated further where married couples wish to move to countries such as Switzerland, Italy, Greece or much of Eastern Europe and Russia where same-sex marriage is unlawful. Instead, the partnership may only be recognised as a form of civil union which may result in a downgrading of the parties’ legal rights. Indeed, many countries in Eastern Europe and Russia do not permit any kind of same-sex union at all. Further, same sex relationships are in fact criminalised predominantly in some African states and some countries in the Middle East (see ILGA.org maps for detail)
For married same-sex couples seeking to move abroad, it is advisable to check with the relevant authorities/Embassies and a local solicitor to establish whether their marriage will be recognised in that particular country and if there are any administrative steps that need to be taken.
Where couples experience difficulties, aside from appealing to the relevant Justice department, the Human Rights Ombudsman may be able to assist.
A final word
Once one hurdle has been overcome, it would unwittingly seem to be replaced by another. The incompatibility of laws as between different countries as regards same-sex unions is hindering decades of progress in this area. As is the case with the couple wishing to move to France, the peculiarities of domestic laws are getting in the way of a seemingly straightforward situation. In many cases, this lacuna will subsist until domestic laws are adjusted to accommodate marriages performed abroad.
David Allison is a director at Family Law in Partnership. He acts for a wide range of individuals including business owners, entrepreneurs, bankers, other lawyers and their partners. The focus of his practice is financial claims on divorce, particularly those with an international dimension, but he is also well known for his expertise in the legal issues affecting cohabitants, same sex couples and civil partners.
Carla Ditz is an associate at Family Law in Partnership. She advises on all aspects of divorce, children and cohabitation matters. Carla also has a keen interest in religious divorce, in particular the Jewish Get, and advises clients on what steps need to be taken and at what stage during the civil divorce process. Carla’s aim is to develop fair and practical solutions to the problems that may arise during family breakdown.