Article by Katharina Boele-Woelki
For more than a decade the legal recognition of same-sex relationships has garnered considerable attention around the globe. The substantive discussion about whether to permit same-sex couples to formalize their relationship is one of the most contested issues within Europe and the United States. The issue becomes even more disputed and complicated in the case of cross-border situations because the private international law approaches in respect of same-sex relationships differ to a large extent. This Article aims to explore how the member states of the European Union cope with the problems created by the free movement of same-sex couples across internal borders. An overview is provided of the actual situation concerning the possibilities of formalizing a same-sex relationship in the European Union. The development of the law shows that the competence of national courts of the EU member states is restricted. They have neither allowed the formalization of same-sex relationships nor have they recognized same-sex relationships concluded abroad if specific statutory rules are lacking. Instead, the courts encourage particular legislatures to enact rules. The Article then focuses on the recognition in one member state of same-sex relationships legally registered in another country. Thereby, a distinction is made between the individual national perspectives, on the one hand, and the European perspective on the other. The latter includes European human rights law and European law consisting of directives and (future) regulations. It is submitted that the European legislature should include same-sex relationship when legislating cross-border family relationships. Finally, the question is posed of what lessons--if any--the United States can draw from the European situation.
About the Author
Katharina Boele-Woelki. Professor of Private International Law, Comparative Law, and Family Law at the Molengraaff Institute for Private Law of the University of Utrecht, the Netherlands. First State Exam 1979, Berlin; DAAD Fellow 1980-81; Dr. jur. 1982, Berlin.
Citation
82 Tul. L. Rev. 1949 (2008)