Recognition of marriage and the free movement of workers in the European Union


Iliya Dzhongarov

Iliya Dzhongarov


This article is to a great extent inspired by a recent guest lecture which was given by Dr Jens M. Scherpe[1] in my class on Comparative Law in the Katholieke Universiteit Leuven (Catholic University of Leuven ) in Belgium where I am doing my Erasmus program. Normally, Family Law does not fall under my current specialization in the faculty of law, but the problematic discourse/the problem of the discourse we had in class seemed too important in the context of our European society just to lay aside. For this reason, I decided to do a summary and present one of the main problems in today’s European Family.

After a brief introduction and a couple of original but also ironic jokes about Brexit (it was the 29th March – the day that Theresa May officially triggered article 50 and the process of withdrawal from the European Union), our guest lecturer kicked off his planned discourse by framing it with one of the essentials to the European Union which is the free movement of workers, which is that you can move freely inside the Union.
It presents one of the four freedoms enjoyed by EU citizens. This includes, the rights of movement and residence for workers, the rights of entry and residence for family members, and the right to work in another Member State and be treated on an equal footing with nationals of that Member State. Restrictions apply in some countries for citizens of Member States that have recently acceded to the EU.

In this context, there is a problem when it comes to family law because obviously, we do not always live by ourselves, we have families, and it would make very little sense to move to work in Spain if we cannot take our families with us. By now you are probably asking yourself, why couldn’t I take my family with me given the fact that European legislation gives me this right as a citizen of the European Union?

Well the answer apparently lies in the fact that our family may not be the kind of family which is recognized there, hence our civil relationships are not governed by the same law in every country.[2] If we were in a marriage with someone from the same sex in France, certain difficulties may or may not arise if we moved to a country which had an expressed prohibition of same sex marriage in their Constitution, like many of the member states in Eastern Europe do.[3] Differences exist and here comes the problem of legal recognition of adult relationships in a broader sense.

Dr Scherpe provided us with a handout so we can better understand his presentation of the problem in which he explains the structures of the various legal regimes that exist in Europe alone. This serves to explain that immense difficulties which exist for the free movement of workers, because if we are running different family models, chances are that our family as such will not be recognized in a different country in Europe.

Map of different legal regimes in Europe source

This piece of writing will summarise the most important points concerning the multiplicity of legal structures across Europe alone that were discussed in class without going into the details of the legal regimes provided.

The Family Law for a very long period of time was concerned with marriage, there were the odd parts about children being sometimes outside marriage but those questions were easily ignored as not to disturb the foundations of the union. As our society developed countries found themselves confronted with a new phenomenon, which in itself wasn’t actually new neither even a phenomenon, those were people who were living together without being married and people of the same legal sex living together in a strong relationship.

Under those consequences governments, social movements, lobbies started working on getting those people a deserved legal framework, and thus appeared the so-called cohabitation and of course the same sex relationships. The first country to make a step from a legal point of view was Sweden which enacted a law on cohabitation which in the first instance applied only to couples of the opposite sex, but afterwards a second statute opened up the possibility for couples from the same sex. Looking at the structures of legal relationships, the biggest problem came from regulation same sex relationships because that factor dominates the way legislatures take decisions on how to regulate relationships.

Seeing how well Sweden did, the government in Denmark acted next and became the first country for same sex couples, its law on “registered partnerships” acted in giving everything that marriage provides without calling it marriage because society was not ready for that yet, it was not until 2012 the law was replaced by a new same-sex marriage law, which came into effect on 15 June 2012.[4] Public opinion also arose and within a couple of years 90% of Danish citizens approved same sex relationships.

Next in line came Germany which created a bill giving same sex relationships recognition much like the model used in Denmark without opening up the institution of marriage to same gender couples because they believed that politically they should not extend the rules on children to same sex couples in Germany.[5] The United Kingdom also followed this established “Nordic model” which wanted to give people an institution close to that of marriage without calling it in reality “marriage”.

On the other hand, other countries had a different approach, which included France who wanted to deal with 2 problems at once. There was the cohabitation and the same sex couple. The French legislator offered a solution which is called “PACS”[6]. It gave recognition to non-married same sex couples, and it solved the cohabitation problem. But in this case, states using this strategy having marriage at the top, but no equivalent for same sex couples, then a form of registered partnership, informal cohabitation and cohabitation without legal effects. Dr Scherpe noted here a fundamental problem that is in this model, there are areas of potential discrimination, a lot of people will argue that in an opposite sex relationship, if they do not want to marry but at the same time nobody offers them something different, why are they offering an alternative to same sex couples. Opposite sex couples as a result have larger lobbies. In 2013 France opened up the institution of marriage to same sex couples and so the problems left unsolved by the PACS, were finally resolved.

In the Netherlands, the picture is different, they introduced a registered partnership[7] which was immediately open to same sex couples which was in substance basically the same as marriage with a few differences concerning dissolution. The odd thing in this picture is that they created a statute which was practically the same as marriage without calling it marriage, which shows the ideological opposition to the institution of marriage for some people. This development is supported by the development at an EU level, where facilitating the free movement of people, same-sex couples included, is a prioritized issue.

The rapid legal development in recognizing the rights of same-sex couples can also be linked to the strong impact of the general human rights discourse in Europe. Laws which safeguard the rights of same-sex couples and homosexual individuals in society are often justified with reference to human rights principles such as equal treatment and non-discrimination, which it is necessary to protect in a democratic society[8].

Ultimately, if a country started differencing same sex and opposite sex relationships by not classing them on the same level, by either not giving the effects of marriage to same sex couples or by not giving the name of the institution which is meant to serve as the recognition of same gender relationships. Here comes the question in all these different legal constructions: How many alternatives do we need? The answer is not easy as every country has a different approach to this topic and so it depends on the history of marriage in every state, which is what the starting point in every legislation was.

Now coming back to the beginning, why should the question about recognition of relationships concern the European community in particular? In consequence if we want to exercise our freedom of movement[9] we would want to take our family with us. If our family construction does not exist in the other countries, we are in trouble. If I was in a PACS in France and wanted to go to Germany, no such thing exists there. If you were in an informal relationship in Sweden and you move to Belgium, this will not move with you. There is a need to develop at the very least rules in Private International Law that try to resolve this issue, but they are very difficult to get cohabitation for. For formalized relationships, they have regulations that would work to a certain extent, but only for a limited number of jurisdictions. Unfortunately, we do not have at this moment free movement of workers in the European Union, at least not to its full extent.

Dr Scherpe noted an even more strange phenomenon, that is if you are in the same sex relationship under the regime of the “cohabitation legale”[10] in Belgium and you move to United Kingdom, it will be recognized as a civil partnership, which means that it would be like marriage, that is not what the “cohabitation legale” is meant to do, but because the British Law is incapable of making this distinction. Suddenly you find yourself upgraded to a civil partnership that you did not want in the first place. But it can work in the other sense as well, you can be downgraded if you move to another country. As a result, you willingly and self-consciously enter into a specific type of relationship and just because you want to exercise your free movement of workers you have to change your rights, which cannot be accepted in a United Europe where gender equality and non-discrimination are deeply rooted in the founding values of this Union. We, as European citizens have a duty to find answers to that, because after all family is one of the most, to some even the most important thing. Family comes first. Like Dr Scherpe put it – “family affairs remain in the core of our human existence, and not being able to function because there is a dysfunctionality in our inner most core, is one of the most brutal experiences anyone can have”.

It is likely that marriage as an institution will continue to be an important cohabitation model and civil status in Europe, as long as it does not stagnate but continues to prove flexible and adaptable to changing values in society.[11] The reason why we have a Family Law is because the General Law is not good enough to protect family relationships. Unfortunately, the real losers in this game are the children, irrespective of what your position on marriage is, what we can all agree on is that children are innocent and the community should protect them because if the couple did not join the right legal regime, the detrimental consequences of unsolved relationship problems will fall on them.

Iliya Dzhongarov



[1] Dr Scherpe is a Senior Lecturer in Law at the University of Cambridge, a Lecturer and Fellow of Gonville and Caius College, he is an Honorary Fellow of St. John’s College – University of Hong Kong, and also he is an Academic Door Tenant at the Barristers’ chambers Queen Elizabeth Building (QEB) in London. In this moment of time, he is a Visiting Professor at the University of Hong Kong and the Katholieke Universiteit Leuven (Catholic University of Leuven ) in Belgium where he teaches courses on Comparative Family Law. Namely it was in this last context that I had the pleasure of meeting Dr Scherpe who came to tell me and my colleagues about the problems of legal recognition of adult relationships in the Comparative Family Law through the spectrum of European legislation

[2] It is up to each Member State (and not the EU) to decide whether it will allow or recognise same-sex marriages or partnerships. Article 6(2) of the EU Treaty requires Member States to comply with fundamental rights including the prohibition on sexual orientation discrimination, when they are applying EU law. So although EU law does not oblige Member States to allow or recognise same-sex partnerships or marriages, it does oblige Member States to treat same-sex couples equally to opposite sex couples when they are applying EU law (including the law relating to free movement, migration and asylum).

[3] Constitutions of Armenia, Bulgaria, Croatia, Hungary, Latvia, Moldova, Montenegro, Poland, Serbia, Slovakia and Ukraine recognizes marriage only as a union of one man and one woman

[4] Lov nr. 532 af 12.06.2012

[5] Civil Partnership Act 2001

[6] Loi n° 99-944 du 15 novembre 1999 relative au pacte civil de solidarité

[7] On the 1st of January 1998 by the insertion of art. 80a to 80e into Book 1, by the law of 5 July 1997 (Staatsblad 1997, nr. 324)

[8] Carolline Sörgjerd, “Marriage in a European perspective”, in European family law Volume III, Jens M. Scherpe, Eduard Elgar, 2016 pp.24

[9] The Free Movement Directive 2004/38/EC allows an EU citizen, under certain conditions, to move and reside within the EU with their spouse. If the host State treats registered partnerships as equivalent to marriage, then registered partners will have the same rights as ‘spouses’ under the Directive. A citizen has the right to stay in another Member State for up to three months. If a citizen wishes to remain longer they must be a worker, student, or person of independent means. A citizen can bring their spouse with them to reside in the host Member State, even if the spouse does not fall themselves into one of the categories given above. However, if the host Member State does not recognise same sex marriages or partnerships then this person only has a right to join their partner if they themselves fall into one of these categories.

[10] Deux personnes qui vivent ensemble et font une déclaration de cohabitation légale à l’administration communale de leur commune de résidence, sont des cohabitants légaux. Cette déclaration leur confère une certaine protection juridique.

La cohabitation légale est accessible à toutes les personnes qui vivent ensemble en Belgique. Il peut donc s’agir d’un couple hétérosexuel ou d’un couple homosexuel. Vous pouvez également cohabiter légalement avec un membre de votre famille ou avec toute personne avec laquelle vous entretenez des relations sans connotation sexuelle.,

[11] Carolline Sörgjerd, “Marriage in a European perspective”, in European family law Volume III, Jens M. Scherpe, Eduard Elgar, 2016 pp.40


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