Published: Fri, January 12, 2018
World | By Paul Elliott

Gay couple's joy after ECJ advisor backs bid for Romania marriage recognition

Gay couple's joy after ECJ advisor backs bid for Romania marriage recognition

But the Romanian authorities refused a request for a residence permit for Mr Hamilton, saying he could not be recognised as the spouse of an European Union citizen because Romanian legislation prohibits marriages between same-sex couples. Romania's Constitutional Court asked the European Court of Justice whether the non-EU spouse should be regarded as a spouse eligible to claim a right of residence.

The finding involves the case of Romanian national Adrian Coman and his American partner, Clai Hamilton, who tied the knot in Brussels in 2010 but have since been denied the right to live in Romania together.

The country is moving towards holding a referendum on whether same-sex unions should be constitutionally banned and made illegal. Romania is one of six countries in the European Union where it is not yet legal for same-sex partners to marry. Previously, the term "spouse" had been undefined.

The judge added that "the objective of protecting the traditional family can not justify discrimination on grounds of sexual orientation" and that "the concept of "spouse" within the meaning of the directive also includes spouses of the same sex". The case was eventually referred to the ECJ, which determined that "spouse" is gender-neutral and includes same-sex partners.

If the advocate general's recommendation is followed by the ECJ, European Union citizens will be allowed to bring in their same-sex spouses from non-EU countries to live with them in any member states under free movement rules - a right some countries only recognise for opposite-sex marriages.

They turned down the request because Romanian law prohibits same-sex marriages and does not recognize such marriages that have taken place overseas.

The ECJ's order is nonbinding.

Advising the European Court of Justice on the case, Advocate General Melchior Wathelet said Thursday balanced Romania's interest in protecting "the traditional family" against its obligation not to discriminate on grounds of sexual orientation.

The move was hailed as a major victory in LGBT rights.

The Dutch MEP Sophie in 't Veld said: "This is fantastic news and a landmark opinion for rainbow families".

The EU's freedom of movement principle grants rights to an EU citizen's spouse, without specifying how spouse is defined.

A senior adviser to the European Union's top court has backed a Romanian gay man's right to have his United States husband live with him in Romania.

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