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Gay spouses have rights in all EU countries, says European court official

13 January 2018, 03:33 | Taylor George

The European Court of Justice

The European Court of Justice

Belgian advocate general Melchior Wathelet wrote today that European Union countries must recognise same-sex spouses in the same ways that they do straight spouses.

Judges are not bound by the advocate general's view, but tend to follow it.

Wathelet's opinion was given in the case of a Romanian national, Adrian Coman, who wanted to be able to build a life in Romania with his American husband, Claibourn Robert Hamilton, with whom he had been living for four years in the U.S. before marrying in Brussels in 2010.

"The obligation to facilitate the entry and residence of the national of a third state of the same sex as the citizen of the European Union to whom he or she is married is greater, and the discretion narrower, when the member state does not allow marriage between persons of the same sex and does not afford homosexual couples the possibility of entering into a registered partnership", Wathelet wrote.

A 2004 directive on the EU's freedom of movement principle gives rights to an European Union citizen's spouse, without specifying how "spouse" is defined.

But because Romania does not recognise same-sex marriage, Hamilton's bid for a residence permit to live there was refused. The case was punted to Luxembourg in 2016 when Romania's constitutional court sought clarification on the underlying human-rights issues.

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One of the EU's most senior legal advisers has said that same-sex partners of European Union citizens enjoy the same free movement rights as partners of a different gender. The couple challenged the decision in Romanian court, claiming it was discrimination based on sexual orientation.

European Court of Justice Advocate General Melchior Wathelet published a legal opinion on the case.

"That legal recognition of same-sex marriage does no more than reflect a general development in society with regard to the question", Wathelet wrote.

The senior adviser also stated that "in the area of family reunification, the objective of protecting the traditional family can not justify discrimination on grounds of sexual orientation".

The ECJ has had a relatively benign history with the United Kingdom - unlike the more contentious European court of human rights in Strasbourg - but nonetheless became a symbol of compromised sovereignty during the Brexit referendum.

"That conclusion also applies in respect of that citizen's country of origin, when he returns there after residing on a permanent basis in another Member State in which he has developed or consolidated a family life, as Mr Coman has done with Mr Hamilton in the present case". The EU has insisted that any future agreements on citizens' rights and access to the single market must continue to be policed by the ECJ.



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