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Can an EU Country Forbid You from Being with Your Spouse?

What Happens When a Government Does Not Recognize Your Same-Sex Marriage

People walk behind the European Union's flag during the annual gay parade in Budapest July 5, 2008. The European Union Court of Justice's ruling on the case from Romania could be felt by same-sex couples throught the EU. © 2008 Reuters

For most married European citizens it is simple: the European Union generally allows non-EU spouses of citizens to live and work anywhere in its jurisdiction if they accompany their EU citizen partner.

All you need to do is register your marriage, and the wheels of bureaucracy should start turning. But one couple is only seeing hope after knocking on doors for five years.

It all started with a refusal by the Romanian embassy in Brussels, Belgium, to register a marriage. Adrian Coman, a Romanian citizen, married Clai Hamilton, a US citizen, in Belgium in 2010 after being in a relationship for eight years. Two years later, they considered settling in Adrian’s home country.

That is when they ran into the first obstacle at the Romanian embassy. What was the problem? Romanian marriage law only recognizes a marriage between a man and a woman. Hence, it curtailed Adrian and Clai’s right to freedom of movement within the EU – a right that would automatically apply if Adrian married a woman.

The couple, together with the Romanian LGBT rights organization ACCEPT, decided to challenge the refusal. Adrian believes that the embassy’s non-recognition of his marriage was not only a logistical hurdle to be overcome, but also an affront to dignity and equality under EU law.

His experience at the Romanian embassy remains vivid: “I remember the clerks talked privately about the matter, then a few minutes later they told me they could not transcribe my marriage certificate. In that moment all I felt was sad and humiliated. I left the consulate holding a sheet of paper saying my family was not recognized by the Romanian authorities.”

After long delays and uncertainty about which court had the competency to hear the case, it reached the Romanian Constitutional Court in 2016. The Romanian court then referred the case to the Court of Justice of the European Union, seeking clarification of the scope of EU free movement law.

This week, the EU Court’s Advocate General issued an opinion that EU countries should allow a same-sex spouse to live and work within their borders – even if their national law does not allow same-sex marriages. The EU Court of Justice still must rule on the case, but the advice of the Advocate General will carry significant weight.

EU law should not allow discrimination against same-sex couples based on member states’ domestic marriage laws being out of step with human rights norms.

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