States one of a spouse is habitual residence of

States which open to Equal cross-border Marriages

Marriage in many states is understood as a traditional legal form of relationship which is supported by a formal act of registration and gives rise to different rights and obligations in private and public law.1 In states where equal marriages are available for everyone regardless their gender or sexual orientation, the solution is to apply mutatis mutandis the rules related to ‘classic’ marriages. In many cases, there were no specific laws were adapted to regulate rainbow marriages which mean that those conflicts of rules for heterosexual couples should apply. Such a solution was found in case of Sweden, Netherlands, Belgium, and Spain.2 In Belgium, Sweden and Spain those formal classical marriage rules enacted for heterosexual couples were covering Homosexual couples as well.

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When a country decides to allow equal marriages for homosexual couples there is no logical reason to create new conflict of law rules specifically for them, as it will ones again draw the line between homosexual and heterosexual couples and such a ‘line’ will always remain as an obstacle for equality in family law or other spheres of life. However, its still not happy end, even if the classical rule of marriage will apply for homosexual couples it still cannot resolve problems in cases when one of a spouse is national of a state where such a marriage is not allowed. It’s true that states which open their door to equal marriages might be attractive to people who have no connecting link to this state, so, on one hand, we have possibility of equal marriage without being restricted by only nationals but on another hand state limits such a possibility to just avoid so-called ”marriage tourism.”3 There is no same restriction for opposite-sex marriages. For example, according to Belgium law, article 46 (2) if one of spouse belongs to the nationality of a state where marriage for homosexual couples are allowed, or one of a spouse is habitual residence of such a state, the law prohibiting the right to equal marriage will not be applicable.4The invention of 1978 marriage is available for a couple if the spouses are in conformity with Dutch law or at least they are complying with their own national laws. Many states to avoid so-called ‘marriage shopping’ homosexual couples are expected to fulfill different requirements, for example for Dutch legal system such a requirement is that a spouse should be the national or habitual residence of Netherlands. It’s worth mentioning that even Dutch private international law does not see the distinction between heterosexual or homosexual couples, it still does not mean that outcome of such marriage will be relevant, for instance, the norms of private international law explains that ”in some countries the recognition of a same-sex’ marriage validity entered into in the Netherlands could be seen as against public order.5 In Case of Sweden, if the couples are not Swedish citizens, they both are expected to fulfill requirements of the law of at least one state he/she is a citizen or habitual resident. The marriage performed outside of Sweden will be recognized as such in Sweden ” if is valid in the country where the marriage was entered into force or the state where the spouses are nationals or have habitual residents.6

State which are not open for Equal marriages

Some EU states still not allowing marriage equality for homosexual couples reasons are same – different traditional and cultural values. When the law of state does not allow homosexual couples to marry, such couples are seeking such opportunity in other states where laws are more tolerant, however, problem which might be faced  is that once the marriage is concluded outside of state of nationality, the marriage is not recognized back home if the spouses want to live together or even if they want legal separation. As we see it will make divorce impossible to be granted, and not only, will the consequences of marriage such as financial provisions and problem-related with children stay unresolved. The problem can be even greater if the state which grants the couple marriage is not ‘allowed’ to grant a divorce for non-resident.7 According to Canadian law, the non-resident couple can marry in Canada but the same couple cannot request divorce as until 2013 non-residents were not allowed to ask legal separation.8 After proper amendments in Civil marriage Act, now Canadian court is allowed to grant homosexual non-resident couple divorce if they reside in a state where such legal separation cannot be granted because the state fails to recognize the marriage. This law to apply three major requirements should be met: 1) couple were married in Canada, 2) in the state where they are residing is not granting them divorce as the same state fails to recognize the validity of marriage and 3) if spouses spent apart at least one year.9

States which partly recognize Marriage Equality

As we saw already some states are providing equal marriages some not and there are also states which do it partly. It means that such countries have created equal marriages or ‘marriage similar’ statuses which are equaling for marriage, these countries decide to accept and recognize only such relationship from outside of their state which is themselves marriages or sufficiently similar to marriages. Means ‘marriage like” relationship will not be accepted and treated as such. For instance, this was a case of Finland 10 and Ireland11. Both of these states allow civil partnership and accepts foreign marriages into this format, but will not accept and recognize French PACS which is understood as ‘contractual institution’ instead of having given for of civil status. Such situations can be solved out without judicial recourse.12

Selective Non-Recognition By states

When it comes to selective non-recognition MS instead of to focus on the form of relationship they focus on the identity of spouses which means that nationality of a person plays a big role, in fact, it raises many legal questions. The idea behind such approach is grounded on the notion of so-called ‘connecting factor’ under a Private international law allowing marrying. Such model was used by France until 2013, for instance, France would recognize marriage equality between to Dutch gays or lesbians, as marriage equality is ensured by Dutch Law, but if one of spouse was not Dutch and was, for example, British, such a marriage would not be acceptable in France and UK, while it was totally welcomed and accepted in the Netherlands.13

Short Review of conflict of law rules in USA

In1970 gay couple was given in Minnesota marriage license which was annulled by court order. After almost 45 year,14 US supreme in 2013 in case of, United States vs. Windsor 15 held that article 3 of Defense of Marriage Act (DOMA) limits the meaning of marriage by defining it as opposite-sex couple marriage, thus it’s unconstitutional.

In case of Obergefell vs. Hodges,16 Supreme Court of US held that equal protection ensured by 14th amendment gives the opportunity to everyone to marry, as the right to marriage was defined as fundamental. After that same-sex marriage become legal in the USA except for Native American tribes, Court also held that states are not allowed to reject from recognizing lawful equal marriages conclude in another state It also allows homosexual couples to request legal separation from one state to another.17

To understand how the conflict of laws starts to work in the USA we should take a look of first resettlement which refers to the principle of lex loci celebrationis – validity of a marriage is depended on the place where it was concluded.18 The territorial approach was challenged as a state is not always able to control or action which can take place within its border. First resettlement did not define how would be treated couples who married outside of USA. Later on, second resettlement was introduced and it covered not just territorial but personal approach as one of major reflection of second resettlement19 was ”greater interest of another state to determine the validity of marriage.”20

Article 283 of resettlement second outlines that validity of marriage is depended on that state which has a significant link with the couple and second, marriage should comply with the rules of state where it was concluded and thus it will be recognized in other states if such a marriage is not violating public policy of that another state.21 As article 283(1) talk about the ‘significant link’, it can be interpreted as the place where you are in a moment of dispute or court proceedings. So basically, if you married in state A where your marriage is valid and lived in state B where you spent 10 years and later moved in state C where your marriage might not be recognized and you will be considered as ‘unmarried’. Section 2 of the same article underlines the ‘state having interest in marriage’ which can be the state you were living. Then obviously, the domicile state rules will ‘exceed’ over the rule of the state where the marriage took place. To conclude, the statement in article 283 (1) should be related with a time of marriage and with domicile place as it will lead our civil statues to be depended all the time on the place we are on time of dispute or court proceedings.22 So, homosexual couples to be able to access their right to marriage at first they are required to change place of domicile otherwise, their marriage will not be accepted in that state even where equal marriages are allowed.23

1 K. Waaldijk, ”Others May follow: the introduction of marriage, quasi-marriage, and semi-marriage for same-sex couples in European countries, New England Law Review Vol. 38:3 pg.570

2 P. Wautelet, ” Private international law aspects of same-sex marriages and partnerships in Europe Divided we stand?”, University of Liège, Published in Legal Recognition of Same-Sex Relationships in Europe, Intersentia, 2012, pg.4

3 Ibid, pg.5-7

4 Law of 16 July 2004 Holding The Code of Private International law

5 K. Waaldijk, Others may follow: The introduction of marriage, quasi-marriage, and semi marriages for same-sex couples in European countries”, pg.577

6 Legal Recognition of Same-Sex Relationships, Name of Country and Jurisdiction: Sweden, pg.4 visit: http://www.samesexrelationshipguide.com/~/media/files/ssrguide/europe/legal-recognition-of-samesex-relationships–sweden.pdf

7 S. M Davis, ”Conflicts of Law and the Mutual Recognition of Same-Sex Unions in the EU”, University of Reading, 2015, pg.16

8 Canadian legal resource Centre Inc, visit: https://www.canadianlegal.org/nonresident-divorce/

9 Canadian Department of Justice visit: http://www.justice.gc.ca/eng/fl-df/divorce/app.html

10 Note on 1 of march Finland  allowed ‘same sex’ marriage, visit: https://www.hrw.org/news/2017/02/21/finland-allow-same-sex-marriage

11 Note equal marriages are still not allowed according to Irish law, visit: http://www.niassembly.gov.uk/globalassets/documents/raise/publications/2014/general/5414.pdf, https://e-justice.europa.eu/content_which_law_will_apply-340-ni-maximizeMS_EJN-en.do?member=1

12  S. M Davis, ”Conflicts of Law and the Mutual Recognition of Same-Sex Unions in the EU”, pg.17

13 Ibid, pg.18-19

14 E.Eckholma, ” The Same-Sex Couple Who Got a Marriage License in 1971”, 2015, available at: https://www.nytimes.com/2015/05/17/us/the-same-sex-couple-who-got-a-marriage-license-in-1971.html?_r=0

15 United States v. Windsor, visit: https://www.law.cornell.edu/supct/cert/12-307

16 Obergefell v. Hodges, visit: https://www.britannica.com/event/Obergefell-v-Hodges

17 ”same-sex marriage: new rules / new laws”, baton rouge bar association, July 21-23, 2016 point clear, Alabama, 2016, pg.8

18Conflictof Laws- Appleton, Outline- Spring 1999, pg.3 http://www.law.wustl.edu/SBA/upperlevel/Conflicts%20of%20Law/ConflictLaws-Unknown1.pdf

19 See: http://www.kentlaw.edu/perritt/conflicts/rest188.html

20 S. M Davis, ”Conflicts of Law and the Mutual Recognition of Same-Sex Unions in the EU”, pg.48-49

21 W. L. M. REEsE, ”Conflict of Laws and the Restatement Second, pg.681-682

22 Ibid,

23 S. M Davis, ”Conflicts of Law and the Mutual Recognition of Same-Sex Unions in the EU”, pg. 48-49

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