Published in Legal Recognition of Same-Sex Relationships in Europe (Intersentia, 2012)

Private international law aspects of same-sex marriages and

partnerships in Europe
Divided we stand?
Patrick Wautelet
University of Liège

1. BY WAY OF INTRODUCTION

2. ACCESS TO MARRIAGE AND PARTNERSHIP

2.1. Same sex marriage

2.1.1. Countries which have opened up marriage to same sex

partners
2.1.2. Countries which have not opened up marriage to same sex
partners

2.2. Partnerships

3. CONSEQUENCES OF MARRIAGE AND PARTNERSHIP – THE

LIFE OF THE RELATIONSHIP

3.1. Same sex marriage

3.1.1. Between countries which have opened up mariage to same-

sex partners
3.1.2. Between countries one of which does not allow same-sex
marriage

3.2. Partnerships

3.2.1. First approach : law of the country of origin

3.2.2. Second approach : law of the host country
3.2.3. Third approach : analogy with marriage

4. OUTLOOK

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1. BY WAY OF INTRODUCTION

Family law has undergone a radical change over the last twenty
years or so. While marriage previously dominated the field, leaving
very little room for non-married couples, whose situation was
mainly characterized by the absence of firm legal principles, the
recent decades have seen the rise of new legal institutions affording
a measure of legal protection to couples outside marriage. This has
coincided with the desire to ensure that same-sex couples could find
a place within the law. As a result, the landscape of family law has
profoundly changed.

If one examines the current stand of the law, it becomes clear that
following this evolution, a few common points stand out while
substantial differences remain. Whereas a large number of countries
have created the possibility to register unions different from
marriage, not all of them have done so. Some countries have shown
indifference to the idea, other have demonstrated clear reluctance,
sometimes even outright rejection – witness the provision in favor of
different sex marriage included in the recent Hungarian
Constitution.1 Among the countries which have created
'partnerships' and other new forms of relationships, the diversity is
obvious, with some countries offering a close copy of the marriage,
while other have opted for a less favorable regime. Finally, a handful
of countries have opened up the possibility of marriage to same sex
partners.2

From the outset this evolution has been closely studied from the
private international law perspective. In view of the ever increasing
mobility of persons within the EU and beyond the conflict of laws
treatment of same sex marriages and partnerships is indeed far
from a purely theoretical concern.

The cross-border aspects of these relations have already already

been documented in a number of fundamental studies. 3 Some years

1 See Article L of the 2011 Constitution which is to enter into force on the 1 st day
of 2012. According to his provision, Hungary is to protect the “institution of
marriage between man and woman...”.
2 Belgium (since 2003), The Netherlands (since 2000), Spain (since 2005),
Sweden (since 2009) and Portugal (since 2010).
3 See among other the following groundbreaking works: I. CURRY-SUMNER, All's well
that ends registered? The substantive and private international law aspects of
non-marital registered relationships in Europe. A comparison of the laws of
Belgium, France, The Netherlands, Switzerland and the United Kingdom
(Intersentia-Antwerp 2005); G. GOLDSTEIN, “La cohabitation hors mariage en droit

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down the road, it appears useful to pause and wonder whether the
difficulties and problems uncovered in these studies have been
resolved. To this end, this paper intends to offer a general review of
the private international law of same sex relationships, focusing on
the situation in Member States of the European Union. Because of
the number of countries whose laws will be examined, we intend to
adopt a bottom up approach, starting not so much from general
questions and problems, but rather from a close examination of the
private international law rules pertaining to same sex relationships
(marriages and partnerships) in Europe.4

From this examination it will be possible to determine whether and

on what issues there exists a consensus among the countries
concerned on the treatment of same-sex relationships. This will be
done by looking first at the possibility for same-sex partners to
access a specific status. In a second stage, the enquiry will focus on
the consequences arising out of a particular status. From there the
paper intends to identify the difficulties arising out of the lack of
consensus. In a final chapter, some thoughts will be offered on the
way forward – in particular assessing the merits of a global or
European solution to tackle cross-border recognition problems.

Much of the discussion will be speculative, given the (surprising)

paucity of case law. No examination will be offered of the specific
treatment of same-sex unions under EU law 5 or international law.6
Likewise, non marital cohabitation, which have not been registered,
will not be considered.7

international privé”, Collected courses (vol. 320 – 2006, pp. 9-389); A. DEVERS,
Le concubinage en droit international privé (Paris 2004) and C. GONZALEZ BEILFUSS,
Parejas de hecho y matrimonios del mismo sexo (Marcial Pons, 2004).
4 See for another approach, focusing not so much on the existing rules and their
shortcomings, but on the elaboration of a new legal framework based on new
methodological approach, A. QUINONES ESCAMEZ, “Propositions pour la formation, la
reconnaissance et l'efficacité internationale des unions conjugales ou de
couple”, Rev. crit. dr. int. priv., 2007, pp. 357-382.
5 Save for the EU conflict of laws rules such as Brussels IIbis and Rome III
Regulations.
6 See e.g. H. U. JESSURUN D'OLIVEIRA, “How do International Organisations Cope with
the Personal Status of their Staff Members? Some Observations on the
Recognition of (Same-Sex) Marriages in International Organisations”, in New
Instruments of Private International Law, GABRIELLA VENTURINI and STEFANIA BARIATTI
(eds), (Giuffre, 2009), pp. 505-531.
7 See e.g. PIERRE-YVES GAUTIER, “Les couples internationaux de concubins”, Rev. crit.
dr. int. priv., 1991, pp. 525-539.

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2. ACCESS TO MARRIAGE AND PARTNERSHIP

The first question to be examined concerns the possibility for two

persons of the same sex to access a specific status, either marriage
or partnership. May two Portuguese men residing in Belgium marry?
May two Luxembourg nationals conclude a partnership in Germany?
While the same question arises for marriage between man and
woman, the context is different when the question relates to
partnership or same-sex marriage : the relative novelty of same-sex
marriage and partnership and the different degrees with which
same-sex relations are accepted means that no identical treatment
with different sex marriages has been achieved.

In order to present the regime applicable to same-sex relations, a

distinction must be made between two types of access
requirements : in the first place, a legal system may subject access
to the registration authorities to specific requirements, aimed at
ensuring that the partners present a sufficient connection with the
country. In the second place requirements as to the institution itself.
Both of these requirements must be studied together. A distinction
will be made between same sex marriage and partnerships, as both
institutions have until now been subject to different rules.

2.1. Same sex marriage

In order to account for the current practice of States, a distinction

must be made between those countries which have and the
countries which have not opened up marriage to same sex partners.
In the latter the question of access to same sex marriage indeed
raises specific questions unknown in the former.

2.1.1. Countries which have opened up marriage to same sex

partners

In those countries which have opened up marriage to same sex

partners, the prevailing solution seems to be to apply mutatis
mutandis the rules drafted for 'classic' marriages. 8 In most cases, no
specific provisions were therefore adopted. Same sex marriages are
governed by the very same conflict of laws provisions drafted for

8 Portugal does not seem to have adopted any specific conflict of law rules when
it opened marriage to same sex partners. The Act N° 9/2010 of 31 May 2010
does not include any specific provision on cross-border aspects of same sex
marriage.

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marriage in general. This is the case in the Netherlands, 9 Belgium 10

and, more recently, Sweden 11 and Norway.12 In Spain, same-sex
marriages are also subject to the same rules applicable to different
sex-marriage, as no specific provisions were adopted when same-
sex marriage was made possible.13

Likewise, the rules which govern the formal requirements of

marriage have been made applicable to same sex unions.14 This also
applies to the rules limiting the jurisdiction of local authorities to
celebrate the marriage : here too, the rules for 'classic marriage'
have been opened to same sex marriages.15

9 See Art. 2 of the Wet Conflictenrecht Huwelijk.

10 See Art. 46 of the Code of Private International Law (hereinafter the 'Code'). In
general, see AUDE FIORINI, “New Belgium Law on Same Sex Marriage and its PIL
Implications”, Intl. Comp. L. Q., 2003, pp. 1039-1049 and W. PINTENS and J. M.
SCHERPE, “Gleichgeschlechtliche Ehen im belgischen internationalen Privatrecht”,
Das Standesamt, 2004. vol. 57/10, at pp. 290-292.
11 According to Bogdan, same-sex marriages are since the Marriage Code was
amended in 2009 considered to be “regular” marriages which are as such
subject to the same Swedish rules dealing with the applicable law as traditional
heterosexual marital unions (MICHAEL BOGDAN, “Private International Law Aspects
of the Introduction of Same-Sex Marriages in Sweden”, Nordic Journal of
International Law (2009, pp. 253-261) at p. 256). See also M. JANTERA-JAREBORG,
“Sweden : The Same-Sex Marriage Reform with Special Regard to Concerns of
Religion”, IPRax, 2010, pp. 1505-1508.
12 Frantzen reports that no specific conflict of laws provisions were adopted to
deal with access to same sex marriage in Norway (TORSTEIN FRANTZEN, “Einfürhung
der gleichgeschlechtlichen Ehe im norwegischen Recht”, FamRZ, 2008, pp.
1707-1708). Accordingly, the general provisions of the Norwegian Marriage Act
(Act n° 47 of 4 July 1991, as amended) apply.
13 The application of the general rules has, however, led to many difficulties,
some of which were solved by a general resolution adopted by the DGRN
(Resolución Circular de la dirección General de los Registros y de Notariado
sobre matrimonios civiles entre personas del mimso sexo, adopted on 29 July
2005). The DGRN has also issued two decisions in October 2005 and April
2006, dealing with concrete cases. These resolutions leave many questions
open and have received many criticism in the literature. See in general PATRICIA
OREJUDO PRIETO DE LOS MOZOS, “Private International Law Problems Relating to the
Celebration of Same-Sex Marriages : DGRN of 29 July 2005”, Yearbook of
Private International Law, 2006, vol. 8, pp. 299-306 (who questions the
qualification of the gender requirement, at pp. 303-304 and also points to the
“poor argumentation of the decisions of the DGRN) and CARMEN VAQUERO LÓPEZ, “A
propósito de la resolución de la DGRN de 29 de julio de 2005 sobre
matrimonios civiles entre personas del mismo sexo”, Anuario español de
derecho internacional privado, 2006, pp. 611-631.
14 See in Belgium Article 47 of the Code; in the Netherlands art. 4 Wet
Conflictenrecht Huwelijk (which incorporates the solution of Article 2 of the
1978 Hague Convention).
15 See in Belgium the application of Article 44 of the Code. In the Netherlands,
application of Article 1:43 of the Civil Code (which provides that at least one of
the future spouse should be domiciled in the Netherlands or be a Dutch
citizen).

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The application of the rules devised for the 'classic' marriage is

obvious and self-explanatory : if a country decides to open up
marriage to same sex relationships, there seems to be no good
reason to reserve a specific conflict of law treatment to such
marriage. As one commentator has noted in relation to the lack of
any distinct private international law treatment under Spanish
private international law, “it should be seen as the logical
consequence of the legislator's intent to ignore any difference
between same-sex and different-sex marriages under Spanish
law”.16

The application of 'classic' rules does not, however, resolve all

questions. These rules may lead to the result that no marriage may
be celebrated, if one of the future spouses possesses the nationality
of a State whose law does not allow same sex marriage. At the
same time, the possibility to conclude a same-sex marriage may
attract people with few or no connection to the jurisdiction.
Countries are therefore engaged in a balancing exercise between
opening up the possibility to conclude a marriage, so that marriage
is not reserved exclusively to nationals of those States where same-
sex marriage is allowed, and limiting it in order to avoid marriage
tourism. In that respect, there is a clear distinction with different sex
marriage, where such considerations are absent.17

In order to deal with the restrictions imposed by the national law of

the spouses, some countries which allow same sex marriage, have
therefore adopted specific rules aimed at making same sex
marriage possible. So it is that in Belgium, Article 46-2 of the Code
of Private International Law provides that if the law of one of the
future spouses does not allow the marriage, this law will be ignored
because deemed to be in violation of international public policy. 18
This is a rather radical option, which have been criticized.19 Likewise,
16 PATRICIA OREJUDO PRIETO DE LOS MOZOS, (fn. 13), at p. 300.
17 For marriages between man and woman, the current outlook is one where
restrictions are imposed mainly because of marriages of convenience. See e.g.
M.-CL. FOBLETS et D. VANHEULE, “Marriages of convenience in Belgium : the Punitive
Approach Gains Ground in Migration Law”, Eur. J. Migration L., 2006, 263-280.
18 See in general GIAN PAOLO ROMAND and SOFIE GEEROMS, “La loi belge du 13 février
2003 et le droit international privé : de la circulaire ministérielle du 23 janvier
2004 à l'alinéa 2 de l'article 46 du Nouveau Code”, in Aspects de droit
international privé des partenariats enregistrés en Europe : actes de la XVIe
Journée de Droit international privé du 5 mars 2004 à Lausanne, (Schulthess,
2004), pp. 105-136.
19 Initially, the interpretation resulted from an an administrative circular issued by
the Minister of Justice, which stated that any foreign legal prohibition on same-
sex marriage must be considered discriminatory and contrary to Belgian public
order, and therefore should not be applied (Circular of 23 January 2004,

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in Spain, the Direccion General indicated that the application of a

foreign law could violate public policy if the result was that same-
sex marriage could not be concluded. 20 In the Netherlands, the
difficulty is less acute as the system already includes a mechanism
in favor matrimonii : in accordance with the Hague Marriage
Convention of 1978, Article 2 of the Wet Conflictenrecht Huwelijk
provides that marriage is possible if the spouses comply with the
requirements of Dutch law. If this is not the case, a marriage is also
possible if the spouses comply with the requirements of their
national law.21 22

These rules have considerably extended the possibility to conclude

same sex marriages. In order to avoid marriage shopping, the
legislators have, however, imposed some additional requirements.
published in the Official Gazette of 24 January 2004). See the strong criticism
by J.-L.RENCHON, “L'avènement du mariage homosexuel dans le Code civil belge”,
in Rev. b. dr. intl. dr. comp., 2004, (169-207), at pp. 189-190 (from a
substantive point of view) and by MICHAEL TRAEST, “De omzendbrief van 23
january 2004 betreffende het homohuwelijk of : hoe een omzendbrief Belgische
conflictenregels wil wijzigen”, Echtscheidingsjournaal, 2004, pp. 49-52
(criticizing the use of a ministerial circular).
20 This was one of the many arguments used by the Direction general to reverse
the decision of the registrar who had refused to celebrate a marriage between
a Spanish citizen and a foreigner. The reasoning used by the Direction general
is quite confused, as it rests on various mechanisms : next to the public policy
argument, the Direction has also referred to renvoi and the possibility to
disregard the foreign nationality of one of the partners who also possessed
Spanish nationality. For more details, see C. GONZALEZ BEILFUSS, “Private
international law aspects of homosexual couples. Spanish Report”, Report to
the XVIIth Congress of International Academy of Comparative Law, Utrecht,
2006, at pp. 5-6.
21 This is called the “conflictenrechtelijke herkansing” (see L. STRIKWERDA, Inleiding
tot het Nederlandse internationaal privaatrecht, 8th ed., Kluwer, 2005, at p. 97,
N° 108). The same solution applies in Luxemburg, which has also ratified the
1978 Hague Convention. See Art. 171 of the Luxembourg Civil Code. This
explains why the Luxembourg government has refrained from suggesting the
adoption of specific rules. In the draft legislation submitted to the Luxembourg
Parliament, the government has indicated that the general conflict of law rule
will be applicable to same sex marriage.
22 In Norway, it seems that the favor matrimonii policy is also present : in
principle, the requirements to celebrate a marriage are governed by Norwegian
law, whatever nationality the spouses may possess. However, foreign spouses
and spouses who do not habitually reside in Norway are required to submit a
certificate stating that there is nothing to prevent him or her from contracting a
marriage in Norway. If such documentary evidence cannot be submitted, the
spouse may file a certificate stating that he or she is not registered as married
or a registered partner in his or her home country. Finally, section 7(g) of the
Marriage Act provides that the National Population Register may make an
exception to the requirement of producing a certificate “when there are special
reasons for doing so”. This could possibly be sued to allow two persons of the
same sex to conclude a marriage in Norway even though such marriage would
not be possible in their home jurisdiction.

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So it is that under Article 2 of the Dutch law one of the spouses

must have his habitual residence in the Netherlands or possess the
Dutch nationality. Article 46 of the Belgian Code goes further : it is
sufficient that one of the spouses has the nationality or is habitually
resident in a country under whose law same sex marriage is
possible. In Sweden, the same result is achieved by another rule : if
none of the parties is a Swedish citizen or habitually resides in
Sweden, each of the parties must fulfill the requirements of the law
of at least one country of which he or she is a citizen or where he or
she habitually resides.23

These rules and mechanisms leave, however, some room for

marriages to be concluded between spouses who could not get
married in their countries of origin. As a consequence, limping
relationships have been created. In most countries, it seems that
the fact that the marriage will not be recognized in the country of
one of the spouses, is not taken into account.24

2.1.2. Countries which have not opened up marriage to same sex

partners

In countries which have resisted opening up marriage to same sex

partners, no specific rules have been adopted to deal with such
marriages.25 Instead, two difficulties must be faced.

A first difficulty relates to the question whether the same sex

marriage should be dealt with as a marriage for the application of
the conflict of law rules. An intense debate has raged on this issue,
notably in France. Among others, Fulchiron has argued that even
though private international law commands a wide reading of the
concepts used in its rules, it would go to far to consider that a same
sex marriage is a marriage for private international law purposes. 26

23 This follows from section 1 para. 2 of the 1904 Act on Certain International
Marriages and Guardianship Relations. If one of the partners is a Swedish
citizen, only Swedish law will apply.
24 Bogdan indicates that the question whether the Swedish marriage will be
recognized in the country of origin of the spouse “is considered to be their
problem and is not taken into account by the Swedish authorities” (MICHAEL
BOGDAN, (fn. 11), at p. 257).
25 I leave aside the initiatives taken by various local authorities, such as cities or
regions, which have attempted to give same-sex relationships some
recognition. This has been the case in Italy, as has been documented by NERINA
BOSCHIERO, “Les unions homosexuelles à l'épreuve du droit international privé
italien”, Rivista di diritto internazionale, 2007, (50-131), at pp. 55-57. As
Boschiero notes, these initiatives do not purport to grant same-sex partners a
real legal status, at most they are relevant for benefits granted by local
authorities.
26 See H. FULCHIRON, “Le droit français et les mariages homosexuels étrangers”,

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According to Fulchiron, such an extension would touch upon the

very “nature” of the marriage and would unavoidably have
consequences for the domestic debate.27 In Italy, one court appears
to have followed the same reasoning and refused to consider that a
marriage celebrated in the Netherlands could be treated as a
marriage because the two spouses were of the same sex. 28 In
Ireland, the High Court decided in December 2006 that a marriage
celebrated in Canada between two Irish women could not be
recognized in Ireland since the concept of marriage was under the
Irish Constitution reserved for opposite-sex couples.29

If a same-sex marriage cannot be dealt with as a marriage, an

alternative solution must be found. It has been suggested to look at
the rules applicable for partnership. This solution had been
suggested in Sweden, before this country opened up marriage to
same sex spouses.30 When Sweden only allowed same sex partners
to form a partnership and not to marry, it had indeed been
suggested that the celebration of a same-sex marriage would be
refused because this type of union would be considered under
Swedish private international law as a type of registered partnership

Dalloz, Chron., 2006, n° 19, 1253-1258, at p.1254.

27 The opinion of Fulchiron is, however, not undisputed. Other French authors
have argued that a same-sex marriage should be considered a marriage for
private international law purposes (see e.g. B. WEISS-GOUT et M.-L. NIBOYET-HOEGY,
“La reconnaissance mutuelle des mariages entre personnes de même sexe et
des partenariats entre personnes de même sexe ou de sexe opposé. La
situation dans les différents Etats membres. Besoin d'une action de l'UE?”,
Report European Parliament, PE 432.731, 2010 at p. 9).
28 See the decision of the Tribunale di Latina of 10 June 2005, published in
Famiglia e Diritto, 2005, 411 with comments by P. SCHLESINGER and M. BONINI
BARALDI. In this case, the court was seized of a request to recognize a marriage
celebrated in the Netherlands between two Italian men. The local registrar had
refused to register the marriage in the public records. The court considered
that the marriage was considered non-existent because under the Italian
Constitutional tradition, a marriage could only exist between spouses of
different sex. See the criticism of MATTEO BONINI BARALDI, “Family vs. Solidarity.
Recent Epiphanies of the Italian reductionist anomaly in the debate on de facto
couples”, in Debates in Family Law Around the Globe at the Dawn of the 21 st
Century, K. BOELE-WOELKI (ed.), Intersentia, 2009, (253), at pp. 274-276 and NERINA
BOSCHIERO, (fn. 25) at pp. 61-62. The Italian Minister of Justice seems to have
given several indications in the same sense (see the references in G. ROSSOLILLO,
“Registered partnerships e matrimoni tra persone dello stesso sesso: problemi
di qualificazione ed effetti nell'ordinamento italiano”, (2003) Rivista di diritto
internazionale privato e processuale, p. 363-398, at p. 391, n° 10).
29 Zappone and Gilligan v Revenue Commissioners, [2008] 2 IR 41 (High Court,
Dunne J., 14 December 2006). The case is apparently still under review before
the Irish Supreme Court.
30 In France the same suggestion has been made by those who consider that a
same sex marriage cannot be deemed to be a marriage for private
international law purposes (See H. FULCHIRON, (fn. 26) at p.1255).

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and not as a marriage. As a consequence, the specific rule regarding

access to partnership would be applied.31 Until now, the solution has
only been expressly adopted in Switzerland.32

Another option is to consider that a marriage between two persons

of the same sex is a marriage. If one elects to consider that
marriage includes both marriage between persons of different sex
and same-sex marriage, it does not, however, mean that the
marriage will necessarily be celebrated.33 If one applies the classic
rules conceived for marriage, the possibility for same sex couples to
marry, could still be blocked by various mechanisms. Take the
example of France, where access to marriage is governed by the
national law of the future spouses. If two Belgian citizens wish to
marry in France, the law normally applicable will allow the marriage.
The question then moves to another topic : will the public policy
exception be used to deny these persons the possibility to marry? In
France, the answer seems to be positive. 34 Bogdan suggested a

31 M. BOGDAN, “Some Reflections on the Treatment of Dutch Same-Sex Marriages in

European and Private International Law”, in Intercontinental Cooperation
Through Private International Law - Essays in Memory of Peter E. Nygh, T.
EINHORN and K. SIEHR (eds.), The Hague, 2004, (25), at p. 28. In France, the same
solution has been suggested by Callé following the adoption of a specific
conflict of law rule dealing with partnerships : according to Callé, it could be
possible to consider that same sex marriage is a form of partnership as
contemplated by the French legislator (P. CALLÉ, “Introduction en droit français
d'une règle de conflit propre aux partenariats enregistrés”, Defrénois, 2009, n°
38989, at p. 1663)
32 See Art. 45-3 of the 1987 Swiss Act, according to which “Un mariage
valablement célébré à l’étranger entre personnes du même sexe est reconnu
en Suisse en tant que partenariat enregistré”. German commentators have
supported this option, see among others P. MANKOWSKI, “Art. 17b EGBGB”, in
Staundigers Kommentar zum BGB, Berlin, de Gruyter, 2003, at p. 820-821, No.
22-23.
33 Or recognized. The Karlsruhe Verwaltungsgericht has indeed refused to give
effect to a marriage celebrated in the Netherlands between a Chinese national
and a Dutch citizen : after having reviewed the matter under European law, the
Karlsruhe court concluded that the same-sex marriage did not qualify as a
marriage under the rules relating to free circulation of person (at that time
Regulation 1612/68). For the sake of completeness, the Court added that if one
considered the marriage as such and applied Art. 13 EGBGB, the conclusion
would necessarily be that the marriage was not valid, since same-sex marriage
is not allowed under Chinese law. The Court concluded that it was therefore not
even necessary to call upon the public policy exception (Verwaltungsgericht
Karlsruhe, 9 Sept. 2004, available at www.lsvd.de). See the comments by R.
KOOLHOVEN, “Het Nederlandse opengestelde huwelijk in het Duitse IPR. De eerste
rechterlijke uitspraak is daar!”, N.I.P.R., 2005, at pp. 138-142.
34 See e.g. B. WEISS-GOUT et M.-L. NIBOYET-HOEGY, (fn. 27), at p. 12, note 29 and PH.
MALAURIE and H. FULCHIRON, La famille, Defrenois/Lextenso, 3rd ed., 2008, at p. 91,
n° 172 – who note that “... l'ordre public français, qui réserve le mariage aux
personnes de sexes différents, s'opposerait à ce qu'une telle situation soit
créée sur le territoire national”.

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couple of years ago that “most countries will probably decline to

celebrate the same-sex marriage even if both parties are Dutch and
therefore considered to be governed by Dutch law”. 35 This
suggestion is probably to a large extent still valid today, as
evidenced by the fact that some countries who have not opened up
marriage to same sex partners also refuse to allow celebration of
such marriages by foreign embassies and consulates on their
territory.36 37

35 M. BOGDAN, (fn. 31), at p. 28. See for the position under English law before the
adoption of the Civil Partnership Act, YVETTE TAN, “New forms of Cohabitation in
Europe : Challenges for English Private International Law”, in Perspectives for
the unification and harmonisation of family law in Europe, Intersentia, 2003,
(437-461), at pp. 459-460 (Ms Tan argued that recognition would be denied on
public policy ground).
36 This seems to be the case in Italy, see NERINA BOSCHIERO, (fn. 25), at pp. 60. In the
Netherlands, it seems that the position was taken early on that French consular
authorities could not conclude French law partnership if one of the partners
possessed the French nationality. The reason was apparently that according to
the Dutch authorities, the French partnership should be deemed to be
equivalent to marriage – see on this aspect H.U. JESSURUN D'OLIVEIRA, “Le
partenariat enregistré et le droit international privé”, Travaux comité fr. droit
international privé, 2000-2002, (81), 89.
37 Another possibility to prevent the celebration of marriage is to characterise the
requirement that spouses should be of different sexes as a formal aspect of
marriage and, therefore, subject to the lex fori (see the discussion by G. KNEZEVIC
and V. PAVIC, “Private International Law Aspects of Homosexual Couples in
Serbia”, Report to the XVIIth Congress of International Academy of
Comparative Law, Utrecht, 2006, at p 2). Another possibility mentioned in the
same report is to consider that the provisions of local family law restricting
access to marriage to different sex partners, are 'Eingriffsnormen'.

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2.2. Partnerships

The private international law treatment of partnerships has for some

time proved to be an “embarrassment”.38 In the first years after
same-sex partnerships started to appear, several options were
considered. A first option linked partnerships to contracts and
borrowed the applicable law from the rules dealing with cross-border
contracts.39 This approach was short-lived : even though some
legislators attempted to confine the partnerships they created to
the realm of contracts,40 the contractual approach was rapidly found
unconvincing.41 A close observation revealed indeed the many
commonalities between partnership and marriage – such as the
prohibition to enter two partnerships simultaneously, the application

38 According to P. MAYER and V. HEUZÉ, Droit international privé, Montchrestien, 9th

ed., 407, No. 547.
39 See e.g. the analysis of M. REVILLARD, “Le pacte civil de solidarité en droit
international privé”, Defrénois, 2000, n° 37124, at p. 337, No. 13 and M.
REVILLARD, “Les unions hors mariage. Regards sur la pratique de droit
international privé”, in Des concubinages.Etudes offertes à Jacqueline Rubellin-
Devichi, Paris, Litec, 2002, (579-599), at pp. 589-590, no. 32. The choice for
contract was certainly in part inspired by the precedent of non marital
cohabitation, where the rules of contract have also been applied in some cases
(see OGH, 18 February 1982, FamRZ., 1982, 1010).
40 In France, art. 515-1 of the Civil Code provides that “Un pacte civil de solidarité
est un contrat conclu par deux personnes physiques majeures, de sexe
différent ou de même sexe, pour organiser leur vie commune”. In Belgium, the
legislator has inserted the provisions in relation to the 'cohabitation légale' in
the third book of the Civil Code, dealing in general with assets and the way
they are acquired... This has not prevented the same legislator from including
specific provisions relating to partnerships in general in the Code of private
international law, some of which simply refer to the rules applicable to
marriage. As Jessurun d'Oliveira has observed, “l'ambiguïté au pouvoir!' (H.U.
JESSURUN D'OLIVEIRA, (fn. 36) at p. 94)
41 See e.g. SANDRINE HENNERON, “New forms of cohabitation : private international law
aspects of registered partnerships”, in Perspectives for the unification and
harmonisation of family law in Europe, Intersentia, 2003, (462-470), at p. 467-
468; J. ERAUW and J. VERHELLEN, “Het conflictenrecht van de wettelijke
samenwoning. Internationale aspecten van een niet-huwelijkse
samenwoningsvorm”, Echtsscheidingsjournaal, 1999, (150-161), at p. 160, nr.
44 and G. ROSSOLILLO, “Registered partnerships e matrimoni tra persone dello
stesso sesso: problemi di qualificazione ed effetti nell'ordinamento italiano”,
(2003) Rivista di diritto internazionale privato e processuale, p. 363-398, at pp.
386-387, n° 7. The debate has, however, reappeared with the adoption of the
Rome I Regulation. Art. 1(2)(b) of the Regulation indeed provides that it does
not apply to “obligations arising out of family relationships and relationships
deemed by the law applicable to such relationships to have comparable
effects, including maintenance obligations”. On the interpretation of this
exclusion, see S. FRANCQ, “Le règlement 'Rome I' sur la loi applicable aux
obligations contractuelles. De quelques changements...”, J.D.I., 2009, (41-69),
No. 10.

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of prohibition inspired by marriage in relation to the kinship links

between spouses and the application mutatis mutandis and to
various degrees of rules relating to the effects of marriage. 42
Further, it was found that allowing partners to benefit from the
conflict of laws rules devised for cross-border contracts would lead
to unacceptable results.43

The only credible alternative to an approach based on contracts,

was to start from the hypothesis that partnerships were family
relations. This starting point has been rapidly accepted. However, it
did not lead to unanimous results. A point of contention emerged on
the question whether it was acceptable to apply the traditional rules
devised for family situations and in particular for marriages. An
ambitious, if isolated position suggested that an attempt should be
made to treat partnerships on the basis of conflict of law rules
adopted for marriage.44 Several elements made it, however, difficult
to maintain this ambition. First, the intervention of many legislators
when adopting legislation on partnerships was precisely meant to
create something different from marriage.45 Further, the diversity of
partnerships and lack of consensus on the content of the
relationship made it difficult to proceed from the assumption that all
relations should be treated equally.46

42 See the observations by H.U. JESSURUN D'OLIVEIRA, (fn. 36) at pp. 85-86.
43 See the review of the criticisms by CH. SERAGLINI, “Les nouvelles formes de
conjugalité : nouveau 'jouet' pour la doctrine de droit international privé?”, in
Du Pacs aux nouvelles conjugalités : où en est l'Europe?, J. FLAUSS-DIEM et al
(eds.), PUF, 2006, (115-146) at pp. 122-125.
44 See e.g. H. CHANTELOUP, “Menus propos autour du pacte civil de solidarité en droit
international privé”, Gaz. Pal., 2000, N° 275, pp. 4-16 and G. KAIRALLAH, “Les
partenariats enregistrés en droit international privé (Propos autour de la loi du
15 novembre 1999 sur le pacte civil de solidarité)”, Rev. crit. dr. int. priv., 2000,
(317 ff) at p. 321, § 7) (Kairallah suggested to distinguish between various
forms of partnerships and to reserve the application of the conflict of laws rules
aimed for marriage to those partnerships which closely ressemble marriage).
45 As Devers has noted, “l'élargissement des catégories du for devant aussi
respecter la place de l'institution étrangère dans son environnement juridique,
il était délicat de prétendre qualifier 'mariage' des relations de concubinage
que les lois étrangères s'attachent à distinguer du mariage” (A. DEVERS, (fn. 3)
at p. 461, § 764).
46 In fact, when it was suggested to apply the rules of family relationship, this was
always done with some caveat or adaptation. See e.g. P. MAYER and V. HEUZÉ,
Droit international privé, Montchrestien, 9th ed., 407-408 n° 547 : MM. Mayer
and Heuze suggested that partnerships should be governed by the rule found
in Art. 3-3 of the French Civil Code, which subjects family law relationships to
the national law of the persons concerned. In view of the fact that not all
countries have adopted a partnership statute, MM. Mayer and Heuze, however,
suggested that contrary to marriage, the applicable law govern all aspects of
the partnerships, from the requirements to access a partnership to the effects
it produces.

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This explains why a third approach emerged, which has rapidly

gained predominance. A consensus has indeed emerged to consider
that partnerships are family relations which should, however, be
subject to specific rules. The rule which seems to have received
widespread recognition is that access to partnership should be
governed by the law of the country where the partners seek to have
their union registered or otherwise formalized. 47 This is often
expressed by subjecting the requirements to the lex loci
registrationis.48 This rule has been adopted in Belgium, 49 Germany,50
France,51 Denmark 52 and recently in Austria.53 The same applied in
Sweden before the Act on partnership was abolished.54

47 The application of the law of the country of registration has been widely
advocated in the literature, see e.g. H. FULCHIRON, “Réflexions sur les unions hors
mariage en droit international privé”, J.D.I., 2000, 889; A. DEVERS, (fn. 3), at pp.
196-201; SANDRINE HENNERON, (fn. 41), at p. 469-470.
48 Note, however, that no consensus has emerged on the scope of the rule : is it
applicable only to 'weak' partnerships, such as the French one, or is it also
applicable to 'strong' partnership such as the Dutch one?
49 Article 60 of the Code of Private International Law. Note that this rule only
applies to partnerships as defined in Article 58 of the Code. Partnerships which
do not meet the requirements of this definition, because they create stronger
links between the partners, are deemed to be marriages and dealt as such
under the private international rules of the Code.
50 Article 17 b EGBGB : “Die Begründung, die allgemeinen und die
güterrechtlichen Wirkungen sowie die Auflösung einer eingetragenen
Lebenspartnerschaft unterliegen den Sachvorschriften des Register führenden
Staates”. See R. WAGNER, “Das neue Internationale Privat- und Verfahrensrecht
zur eingetragenen Lebenspartnerschaft”, IPRax 2001, pp. 281-293 and M.
FORKERT, Eingetragene Lebenspartnerschaften im deutschen IPR: Art. 17b
EGBGB (Mohr Siebeck, 2003, 362 p.).
51 Art. 515-7-1 of the Civil Code : « Les conditions de formation et les effets d'un
partenariat enregistré ainsi que les causes et les effets de sa dissolution sont
soumis aux dispositions matérielles de l'État de l'autorité qui a procédé à son
enregistrement ». Adoption of the law had been prepared and suggested in a
report published in 2004 : see F. GRANET-LAMBRECHTS, “Trente-deux propositions
pour une révision de la loi du 15 novembre 1999 relative au pacs”, Dr. famille,
2005, 11 ff. - which already suggested to subject partnerships to the law of the
place of registration. In general, see H. PEROZ, “La loi applicable aux
partenariats enregistrés”, J.D.I., 2010, vol. 137, at pp. 399-40 and N. JOUBERT and
B. MOREL, “Les partenariats enregistrés en droit international privé depuis la loi
du 12 mai 2009”, JCP, N, 2009, 1285.
52 See art. 3(2) of the Danish Act, which provides that the provisions of the Danish
Act on marriage applies mutatis mutandis to partnerships.
53 Art. 27a of the Austrian Private International Law Act of 1978, as amended by
the Eingetragene Partnerschaft-Gesetz of 2009.
54 Pursuant to section 3, para. 4 and section 9 of Chapter 1 of the Registered
Partnership Act (today abolished), access to a partnership was always
governed by Swedish law, no matter what nationality(-ies) the partners
possessed. See M. BOGDAN, “Private International Law Aspects of Homosexual
Couples”, Report to the XVIIth Congress of International Academy of
Comparative Law, Utrecht, 2006, p. 3.

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Swiss law reaches the same result by declaring applicable to

partnerships the rule pertaining to marriage.55 It is interesting to
note that in England 56 and in the Netherlands, as is the case in
Switzerland, the rule is expressed unilaterally, by reference only to
the application of local law.57

The application of local law is also the rule when determining which
formal requirements govern the creation of a partnership. Here too,
different methods exist. In some countries, reference is made to the
rules which apply to marriage.58 Some laws do not include a specific
conflict of law rule for the formal requirements. Rather, this question
is taken together with all other requirements aimed at the creation
of a partnership, which are governed by local law. 59 In other
countries, a conflict of law rule is adopted, which provides for the
application of local law.60

55 Art. 65a of the 1987 Swiss Act on Private International Law provides that “Les
dispositions du chapitre 3 s’appliquent par analogie au part.enariat enregistré,
à l’exception des art. 43, al. 2, et 44, al. 2”. As a result, Article 44(1) of the Act
applies both to marriages and partnerships. Under this provision, access to
marriage or partnership is only possible provided the requirements of Swiss law
are met. It is interesting to note that Article 65(a) expressly disapplies Article
44(2) of the Act, which makes it possible to conclude a marriage even though
the requirements of Swiss law are not met, when the future spouses meet the
requirements of one of their national laws. Hence, access to partnership is
made more difficult than access to marriage (on the rationale of this rule, A.
BUCHER, Le couple en droit international privé, Helbing & Lichtenhahn/LGDJ,
2004, at p.188, n° 525).
56 J. J. FAWCETT and J.M. CARRUTHERS, Cheshire, North & Fawcett Private International
Law, 14th ed., OUP, 2008, at p. 938.
57 See Art. 1-2 of the Wet Conflictenrecht Geregistreerd Partnerschap : “De
bevoegdheid van elk van de partners om in Nederland een geregistreerd
partnerschap aan te gaan wordt beheerst door het Nederlandse recht”. Unlike
for marriage, there is no possibility to fall back on the provisions of the national
law of the partners if the partners do not fulfill the requirements of Dutch law.
Strikwerda notes in this respect that “Een conflictenrechtelijke herkansing op
grond van de nationale wet van de aanstaande partners …. ontbreekt hier,
omdat de Nederlandse regeling van het geregistreerde partnerschap
rechtsvergelijkend beschouwd betrekkelijk uniek is, zodat een verwijzing naar
de nationale wet goede zin mist” (L. STRIKWERDA, 8th ed., Kluwer, 2005, at p. 98,
N° 108). On the reasons of the choice by the Dutch legislator for unilateral
rules, see H.U. JESSURUN D'OLIVEIRA, (fn. 36) at p. 91.
58 E.g. Section 2(1) Danish Act. This was also the case in Sweden before the
Partnership Act was abolished.
59 This is the case in Belgium (Art. 60 Belgian Code PIL), in France (art. 515-7-1
Civil Code) and in Germany.
60 See in the Netherlands Article 1-3 Wet Conflictenrecht Geregistreerd
Partnerschap (“Wat de vorm betreft kan een geregistreerd partnerschap in
Nederland slechts rechtsgeldig worden aangegaan ten overstaan van de
ambtenaar van de burgerlijke stand met inachtneming van het Nederlandse
recht...”). In Finland, § 11 Finnish Partnership Act provides that “The right to the
registration of partnership before a Finnish authority shall be determined in

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The application of local law opens the way for foreigners to enter
into a local partnership – without any examination of the possibility
for the persons concerned to enter into such a partnership under
their national law.61 As has been done for same sex marriage, most
States have therefore imposed additional requirements which
restrict the access to partnerships. The goal was plainly to avoid to
become a so-called 'registration-haven' for foreigners – which could
be even more prevalent than for marriage, since the prevailing view
in relation to the effects of partnership is to submit the effects to the
law of the country where the partnership was registered (infra).
These rules require that there be a connection between the partners
and the State.

The nature of this connection may vary – and has changed over
time.62 In many countries, these requirements are based on
residence of the partners. This is the case in Belgium, 63 France,64

accordance with the laws of Finland”.

61 On the possible risk of creating liming relationships, see hereinafter.
62 Jessurun d'Oliveira recalls that Scandinavian countries were at first hesitant to
open their partnerships to foreigners, requiring a clear link with the country.
The situation gradually evolved and access to partnership in these countries
was made easier for foreigners : H.U. JESSURUN D'OLIVEIRA, (fn. 36) at p. 87. On the
evolution in Sweden, see MICHAEL BOGDAN, “Amendment of Swedish Private
International Law regarding Registered Partnerships”, IPRax 2001, pp. 353-335.
63 See Art. 59 § 2 of the Belgian Code (access to partnership is only possible
provided the two partners habitually reside in Belgium).
64 According to Article 515-3 of the French Civil Code, “Les personnes qui
concluent un pacte civil de solidarité en font la déclaration conjointe au greffe
du tribunal d'instance dans le ressort duquel elles fixent leur résidence
commune ou, en cas d'empêchement grave à la fixation de celle-ci, dans le
ressort duquel se trouve la résidence de l'une des parties.” The same provision
allows, however, also the conclusion of a PAC's before French officials abroad
(diplomatic or consular agent), provided at least one of the partners is a French
national : “A l'étranger, l'enregistrement de la déclaration conjointe d'un pacte
liant deux partenaires dont l'un au moins est de nationalité française et les
formalités prévues aux troisième et cinquième alinéas sont assurés par les
agents diplomatiques et consulaires français ainsi que celles requises en cas
de modification du pacte”. Pierre Callé has called for these requirements to be
strengthened in view of the importance given by the law of 12 May 2009 to the
law of the country of registration (P. CALLÉ, (fn. 31) at p. 1666-7).

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Luxembourg,65 Spain 66 and Switzerland.67 In a limited number of

States, access to partnership is reserved to nationals of the State or
at least requires that one of the partners is a national. This is the
case in Slovenia 68 and the Czech Republic. 69 In yet other countries,
the requirements are based on a combination of residence and
nationality of the partners. The combination is usually an
alternative, as is the case in the Netherlands, where partners may
conclude a partnership if they reside in the Netherlands but also if
one of the partners is a Dutch national. 70 In Nordic countries, the
same alternative system is applied, whereby registration is possible
if the partners either reside in the country or are national of the
country.71 72 Finally, one should also mention the peculiar case of
Germany : it appears that Germany does not impose any
requirement in relation to the partners' nationality or residence. In
other words, foreign nationals who do not habitually reside in
Germany could apparently enter into a partnership in Germany on
the occasion of a short-term visit to this country.

65 Art. 3(1) of the Luxembourg Registered Partnership Act provides that the
partners must make the declaration before the registrar of their “domicile or
common residence”. Art. 4(4) of the same act requires that the partners reside
legally in Luxembourg (exception to this requirement is made for citizens of EU
Member States).
66 According to Gonzalez Beilfuss (fn. 20 at p. 10) – who reports that the
requirement of holding a 'vencidad administrativa' (i.e. habitual residence
supplemented by registration in the local Population Registry) has been
questioned from a constitutional point of view.
67 According to Art. 5(1) of the Swiss Partnership Act, the request for registration
must be presented to the registrar of the 'domicile' of one of the parties. Art.
5(4) adds that if the partners are not Swiss citizens, they must first establish
that they legally reside in Switzerland. See also Art. 43 (1) of the Swiss Private
International Law Act (declared applicable to partnerships by Art. 65a) and sec.
8(1)(b) of the UK Civil Partnership Act (requirement of 7 days of residence).
68 Art. 3(2) Registered Partnership Act of Slovenia.
69 § 5 Czech Republic Registered Partnership Law.
70 See Art. 80a § 4 of the Dutch Civil Code – according to which persons who wish
to conclude a partnership must in principle do so before the registrar of their
domicile in the Netherlands. If the persons reside outside the Netherlands,
registration is also possible if at least one of the partners is a Dutch national.
71 § 2(3)(1) of the Norwegian Law; § 10 Finish Registered Partnership Act; § 2(2) n°
2 Danish Registered Partnership Act. The Swedish Partnership Act provided
likewise for a combination : the specific connection with Sweden was deemed
to exist if at least one of the applicants was either habitually resident in
Sweden for two years or was a Swedish citizen with its habitual residence in
Sweden (section 2 of Chapter 1 of the Act, which has now been repealed).
72 The Scandinavian countries also adopted an interesting system : in order to
take into account the fact that partnerships were already allowed in other
countries, the law adds that citizenship of these countries must be taken to
rank equally with local citizenship. For nationals of these countries, access to
partnerships is hence made easier. See in this respect, M. BOGDAN, (fn. 54) at p.
3.

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Taken together, the rules adopted for cross-border partnerships

depart significantly from the traditional approach used for marriage.
This is particularly striking for the emphasis placed on the role of
the local law even in jurisdiction where access to marriage is
traditionally governed by the law of the nationality of the spouses.
The application of local law may certainly be commanded from the
perspective of the practitioner, as it offers ease of application. This
is particularly relevant in an area where rapid growth and change of
legislations makes it more difficult for authorities to verify
compliance with requirements of national law.

Beyond pragmatism and ease of application, the choice for local law
also embodies a substantive decision : even though the number of
countries which accept partnership is steadily growing, there
remains a great number of countries where such institution is
unknown. Hence the application of the classic nationality threshold,
where access to a family law institution such as marriage is subject
to compliance with the requirements of the national law, 73 would
only allow registration for nationals of countries which have
introduced legal partnerships. On the contrary, the application of
local law, allows a larger participation.74 There is therefore a real
political choice made when adopting such an approach. 75 At the
same time, the application of local law helps to underline that
partnership is and remains something different from marriage.
Finally, by sticking to the application of its local law, a country can
avoid having to create a partnership under foreign law. This is
appealing for many countries since the content of the 'partnership'
may vary greatly in the various legislations. States make careful
choices when adopting a partnership statute, as to what effects they
wish the partnership to produce. This decision could be imperiled if
a State was required to apply foreign law.

The choice for the application of local law rests upon different
explanations. It also has various consequences. The first one is that
it creates two categories of marital unions for conflict of laws
purposes. There is indeed a clear difference between marriage and
partnership. This is only the logical consequence of the State's

73 The outlook is obviously different in those countries where access to marriage

is subject to local law, such as England. In those countries, there is much less
need to specific regulation of same-sex regulations as foreign partners cannot
'import' their own law.
74 On this 'pioneer's problem', see hereinafter.
75 See the observations by H.U. JESSURUN D'OLIVEIRA, (fn. 36), at p. 91. Jessurun notes
the “souci de favoriser les personnes, surtout de nationalité étrangère, et
d'orientation homosexuelle, et de leur permettre de faire enregistrer leur
partenariat”. Devers suggested that it was “impossible” to adopt a neutral
conflict of laws rule (A. DEVERS, (fn. 3) at p. 196, § 312).

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decision to create a partnership next to the marriage. On this

question, conflict of laws follows the substantive choice. It does not
seem that this creates a discriminatory difference of treatment.

Another consequence is that States where partnerships are subject

to local law, will only allow creation of a partnership in the form they
have accepted. In other words, it is not possible for partners residing
in State A to request that their partnership be concluded under the
law of State B. For marriage, this question does not arise : whether a
marriage is concluded under local law or foreign law, marriage is a
universal concept. Even if some differences may exist when one
compares the consequences attached to marriage in various laws,
the 'content' of the relationship will in any case not necessarily be
dictated by the law of the State where the marriage has been
concluded. Current practice indeed dictates that creation and
content of marriage as status are disconnected.

For partnerships, this question remains relevant, as the shape and

consequences of partnerships may vary in the various laws. It is
enough to refer to the difference existing between countries where
partnership is open only to same-sex partners, such as Germany
and England, and countries where different sex partners also may
enter into a partnership. The question where a partnership is
entered into, remains therefore relevant.

Finally, the choice for the application of local law also has
consequences on the recognition side. Since access to the
partnership is not subject to the national law of the partners, it may
be that the partners enter into a relationship which does not exist,
or only exists in a significantly different shape in the country of
origin. The seeds of limping relationships are therefore sown.76

76 In France, it has been observed that even before the adoption of Art. 515-7-1,
foreigners could conclude a partnership without any consideration of their
national laws – see P. MAYER and V. HEUZÉ, Droit international privé, 9th ed., 408,
n° 547 and P. HAMMJE, “Réflexions sur l'article 515-7-1 du Code civil”, Rev. crit.
dr. int. priv., 2009, (483), at p. 487 – thereby opening the way for limping
relationships.

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3. CONSEQUENCES OF MARRIAGE AND PARTNERSHIP – THE

LIFE OF THE RELATIONSHIP

Moving beyond access to the relationship, the consequences of

same-sex relationships also deserve a close examination. These
consequences may touch upon diverse elements such as the duties
and rights of the partners towards each other (is there a duty of
fidelity? May one partner claim maintenance when the partnership
is ended?) and towards the children. The consequences may affect
the personal situation of the partners or their assets – one thinks for
the matrimonial assets. Finally, effects in relation to inheritance law
should also be considered.

Before looking at the current state of the law, one general question
may arise, that of the applicability of international agreements or
European regulations. There are indeed many existing international
conventions on private international law dealing with the
consequences of family relationships, such as the 1978 Hague
Conventions on celebration of marriage and matrimonial property.
The same question arises in relation to various European
instruments, such the Brussels IIbis Regulation. Should these
international agreements also be deemed to apply to same sex
relationships? Looking for the answer to this question is a frustrating
experience, as there is very limited practice on the subject. 77 If one
leaves aside the most recent instruments, 78 none of the
international texts take a firm and open stance on whether it applies
to same-sex relationships.

The starting point to deal with this vexed question should probably
be that there is no room for a generic answer applicable to all
international and European instruments. This is because the
relevant regulations and conventions have been adopted in various
contexts and may not all share the same aims. A further element

77 Bogdan mentions one instance where the question has received a firm answer,
i.e. that of the intra-Nordic Marriage Convention of 1931. A Swedish Act
apparently indicates expressly that this Convention does not apply to same sex
marriages (MICHAEL BOGDAN, (fn. 11) at p. 255).
78 See the draft EU Regulations on Matrimonial Property which were presented by
the EU Commission in March 2011 : one of the drafts deals expressly with the
“property consequences of registered partnerships” (COM(2011) 127 final). The
Commission has explained that a separate instrument was necessary for
partnerships “because of the features that distinguish registered partnerships
and marriage, and the different legal consequences resulting from these forms
of union...”. Article 2(b) of the Proposal defines partnership as follows : “regime
governing the shared life of two people which is provided for in law and is
registered by an official authority”.

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which should probably be taken into account by way of general

principle, is that recourse to national law as a guide to construe
concepts used by international instruments should be avoided. This
is clearly the case for the various existing European regulations. 79 As
a matter of good practice, the same positions should be taken when
applying international conventions such as the Hague Conventions.
The practice of State has, however, been mixed : while Denmark
has apparently taken the position that existing international
instruments should not be deemed to be applicable to partnerships,
unless all Contracting States agree to it,80 it has been argued in the
Netherlands on the other hand that there is room for application of
selected international conventions, such as the Hague maintenance
conventions, because these conventions apply to maintenance
obligations “arising from a family relationship, parentage, marriage
or affinity [...]”. This is read to be broad enough to include
obligations arising out of partnerships.81

If one considers the flagship European Regulation, the principle of

autonomous interpretation probably means that there is today no
room for application of the Brussels IIbis Regulation when the court
is seized of a petition concerning a same sex marriage. 82 Although

79 The ECJ has already made clear that the concept of 'civil matters' should be
interpreted autonomously when reading the Brussels IIbis Regulation (ECJ, 27
November 2007, C, case C-435/06, at § 46).
80 Position reported by, and criticized by H.U. JESSURUN D'OLIVEIRA, (fn. 36) at p. 93.
81 See the arguments and references in H.U. JESSURUN D'OLIVEIRA, (fn. 36) at p. 92.
See also IAN CURRY-SUMNER (“Private International Law Aspects of Homosexual
Couples : the Netherlands Report”, E.J.C.L., vol. 11.1 (2007) at p. 12), who
indicates that “In the eyes of the Dutch authorities, divorces pertaining to
cease the bond established as a result of a same-sex marriage, fall within the
material scope of” both the Hague Convention of 1 June 1970 on the
recognition of divorces and legal separations and of the International
Commission on Civil Status Convention on the recognition of decisions relating
to the marital bond signed in Luxembourg on 8 September 1967 because such
marriage falls within the material scope of these conventions.
82 This view is not, however, universally accepted. Consider the position of M. NI
SHUILLEABHAN (Cross-Border Divorce Law. Brussels IIbis, Oxford, 2010, at pp. 110-
111, § 3.42 ff and at pp. 114-116, § 3.48 ff) who argues that “a broad definition
of 'matrimonial matters' in the Brussels IIbis context would not affect national
sensitivities (and indeed from an EU policy perspective, it would very much
further the interest in ensuring free movement of judgments and consistent
recognition of status, if all forms of marriage/partnership dissolution are
covered)”. See also the position taken by the Dutch State Committee on Private
International Law in respect of the predecessor of the Brussels IIbis Regulation,
the Brussels II Regulation. According to the committee, since the Community
lacks a common definition of ‘marriage’, it should be left to the member states to
define what a marriage is : Staatscommissie voor het Internationaal Privaatrecht,
Advies inzake het internationaal privaatrecht in verband met de openstelling van
het huwelijk voor personen van hetzelfde geslacht (2001), at pp. 20-21, available
at www.rijksoverheid.nl/onderwerpen/wetgeving/privaatrecht/staatscommissie-

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this may seem to constitute a regression for the countries which

have opened marriage to same-sex partners, this result should be
identical whatever position the Member State whose court is seized,
has adopted vis-a-vis same-sex relationships. In other words, even if
the Member State concerned has allowed same-sex partners to
marry, it would run contrary to the European principle of uniform
interpretation to use the provisions of the Brussels IIbis Regulation
to determine the jurisdiction of a court in cross-border matters.83

This does not mean that all States will dutifully refrain from applying
the provisions of the Regulation (or from other international
conventions) to same sex relationships.84 In fact, there is not much
that can be done to stop a State from unilaterally considering that
the Brussels IIbis Regulation applies to same-sex relationships.85
Further, the situation may change in the future. As for all legal texts,
the provisions of the Brussels IIbis Regulation should be read with
due care for present circumstances. The question whether the
Member States contemplated the application of the Regulation to
same-sex relationships when negotiating the text, seems in that
respect less relevant than the question how the concept of
'marriage' should be understood in a European context in 2011. 86 In
the future, it may be that the ECJ comes to the conclusion that there
is sufficient common ground between the Member States to
interpret the concept of marriage as including same-sex marriages.

The same solution can probably be accepted when considering the

application of the Brussels IIbis regime to partnerships. There is

ipr.
83 According to Bogdan, this is th “prevailing opinion”, i.e. that the Regulation
refers merely to traditional marriages between men and women : MICHAEL
BOGDAN, (fn. 11) at p. 255.
84 The temptation to do so will be greater when the Member State concerned has
chosen to extend the application of the provisions of an international
instrument, as is sometimes done by Member States in respect of European
Regulations. See Art. 4(4) of the Dutch Code of Civil Procedure, which provides
that the Brussels IIbis regime is also applicable to same-sex partners. This is,
however, only the case when the Regulation is applied by analogy to situations
which do not fall within its scope of application. See also Art. 1:80c (2),
Netherlands Civil Code which provides that the Dutch Registrar is competent in
this respect on grounds which are identical to those laid down in the Brussels
IIbis Regulation.
85 In this sense, MICHAEL BOGDAN, (fn. 11) at p. 255.
86 It seems therefore moot to inquire whether applying this instrument (or
another) to same sex marriages would amount to a unilateral extension of the
scope of application to situation not contemplated by the States parties,
something which could constitute a violation of an international obligation. The
idea that it would be wrong to apply a convention or Regulation to situations
which did not exist when the texts were negotiated, proceeds from a static
conception of legal interpretation, which is hard to defend today.

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certainly a stronger convergence between the laws of Member

States when one considers the possibility to obtain legal recognition
of an union outside marriage. However, it cannot be denied that
whether they concern same-sex or different sex partners,
partnerships differ precisely from marriage in that they were created
as an institution next to marriage. Assimilating partnerships, even
those from countries where partnerships are very close to marriage,
to marriage, therefore seems too bold a move at this stage.87

Looking at the effects of same-sex relationships, it seems again

useful to distinguish same sex marriage from partnership, since
different approaches may be used in practice.

3.1. Same sex marriage

3.1.1. Between countries which have opened up mariage to same-

sex partners

Prima facie, the treatment of same sex marriage does not raise
fundamental difficulties if one looks at countries where this form of
relationship has been recognized. In these countries, no special
rules have been adopted for same sex marriages, which are
therefore governed by the same rules as 'traditional' marriages. 88
Same-sex relationships are therefore subject to multiple rules, there
being, in most countries, no single rule governing all consequences
of marriage.89 Hence, when seeking to determine the effects a
same-sex marriage is likely to produce, one should work with
various rules depending on the issue concerned, as is commonly
done for 'classic' marriages.

When one looks at a same-sex marriage concluded abroad, a

preliminary question arises : will the marriage will recognized as
such? Presumably, this should not raise much difficulty. As Bogdan
wrote in relation to Swedish same sex marriages, “it can be
assumed that countries having same-sex marriages in their own law

87 For the various arguments, see WALTER PINTENS, “Marriage and Partnership in the
Brussels IIa Regulation”, in Liber Memorialis Petar Sarvecic. Universalism,
Tradition and the Individual, V. TOMLJENOVIC et al (eds.), Sellier, 2006, (335-344) at
pp. 338-343.
88 See e.g. for Sweden MICHAEL BOGDAN, (fn. 11) at p. 258.
89 Contemporary private international law has indeed abandoned the idea that all
consequences of marriages should be governed by a single rule. Instead,
different rules are adopted which provide a solution for the various
consequences which can arise from marriage – alimony, assets and assets
division, relations with the children, etc.

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will normally recognize a Swedish same-sex marriage as a regular

marriage”.90 Same-sex marriage will therefore be subject to the
same recognition rules as other marriages.91

If one examines the fate in Belgium of a Dutch same-sex marriage,

the question of the effects is at first sight non problematic : the
foreign marriage will be deemed to be a marriage and all other
conflict of laws rules will be applied to the marriage – if one of the
spouses wish to divorce, reference will be made to the regular
conflict of laws rules relating to divorce.

As is the case for questions of access to marriage, the application of

the 'normal' rules will, however, sometimes need to be nuanced.
This will be the case if same-sex marriage is unknown in the country
whose law is declared applicable. Say two Italian women living in
Belgium get married in this country. If one of the spouses later files
a divorce petition before a court in Belgium, the court will in
principle apply Belgian law as the law of their common habitual
residence.92 The spouses may, however, request the court to apply
Italian law.93 As same sex marriages are unknown under Italian law,
the question arises whether the court could nonetheless apply the
substantive provisions of Italian law. Or should the court fall back on
Belgian law?

A similar difficulty arises if one of the spouses passes away. Italian

law will apply, according to both Belgian and Italian private
international law, to determine whether the surviving spouse may
make any claim on a house owned by the deceased in Italy. Should
the provisions of Italian law awarding rights to the surviving spouse
be applied in this case, even though under the proper application of
Italian law the surviving spouse would be denied that capacity?

A first difficulty is that the Italian substantive rules declared

applicable may not be gender neutral and expressly refer to
categories such as 'husband' and 'wife'. Would the application of
such rules to same-sex marriages corrupt or even violate the
relevant foreign law? If one goes beyond the problem of
terminology, what arises is a classic issue of 'adaptation' : the law
90 MICHAEL BOGDAN, (fn. 11) at p. 260.
91 Here too one notes a variety of approaches. The 1978 Hague Convention on
celebration and recognition of the validity of marriages has only been accepted
by a limited number of countries. In most cases, recognition will be subject to
determination that the marriage was validly celebrated or concluded in the
country where it was concluded. Other requirements may exist, such as an
absolute minimum age or or a general public policy exception.
92 Art. 55(1) of the Belgian Private International Law Act.
93 Art. 55(2) of the Belgian Private International Law Act.

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declared applicable starts from its own structure and does not make
allowance for the legal situation already created under another law.
It is accepted that the answer to this problem is to compare the
substantive provisions of the laws under review and to determine
whether there is a sufficient equivalence between the institutions. 94
When the question arises in a country which has made allowance for
same-sex marriage, this process of adaptation will probably lead to
the be undertaken based on the assumption that the same-sex
marriage should be considered as such. This would entail that
Belgian courts grant to the same-sex spouse all rights given to
spouses under Italian inheritance law. The question whether this
result would be accepted in Italy remains open.

When one looks at the rules of jurisdiction, some adaptation may

also be needed. Take two same-sex partners married in Sweden,
who leave Sweden and reside for a long period abroad. If one of the
spouses want to file a divorce application, it may be that this proves
impossible in the country of residence of the spouses because the
marriage as such is not recognized. This explains why some
countries have adapted their rules of jurisdiction and made it
possible for spouses to file a divorce even though the spouses would
ordinarily not be able to do so.95

3.1.2. Between countries one of which does not allow same-sex

marriage

The picture is different if one considers the fate of a same-sex

marriage in a country where such marriage is not allowed. How will
a same-sex marriage celebrated in Spain fare in Italy if the spouses
wish to divorce or one of them requests alimony from the other?
What if the same-sex partners reside in Germany? Key question in
this case is not so much which law will apply to the consequences of
the marriage, but rather whether the same sex marriage will be
recognized and given any effect.

Various attitudes must be distinguished. In some countries, one may

94 As explained e.g. by D. BUREAU and H. MUIR WATT, Droit international privé, 2nd
ed., II, PUF, 2010, at p. 507, § 478; A. BUCHER, “La dimension sociale du droit
international privé”, Collected courses, vol. 341, (27), at p. 239, § 143.
95 See the new ground of jurisdiction adopted in Sweden for matrimonial cases so
that divorce applications may be filed in Sweden if there are “special reasons”
to do so (MICHAEL BOGDAN, (fn. 11) at p. 257). Likewise in Norway, a special ground
of jurisdiction was adopted to allow spouses who have married in Norway to file
a divorce petition in Norway if it appears that no divorce may be obtained in
the country of origin of the spouses or in the country where they reside –
section 30 b, letter f of the Norwegian Marriage Act.

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suspect that the same-sex marriage will be denied any and all
effect. This would probably be the case in Hungary, where a recent
constitutional change expressly outlawed same-sex unions. As a
consequence, the same-sex spouses would not be treated as such :
they would be free to remarry and could not claim any of the
consequences normally attached to marriage. The denial of
existence would touch the very essence of the relationship, which
would not even be downgraded and treated as a partnership. The
question of what law applies to the consequences of marriage
therefore becomes moot.

This very radical approach is not shared by all countries which have
not made it possible for same-sex couples to marry. As for other
forms of family relationships unknown under local law, some
countries may be prepared to recognize some of the consequences
of a same-sex marriage validly concluded abroad. There are for
example indications that even though it does not allow same-sex
marriage, France would be ready to extend some recognition to
foreign same sex marriages.96 97 As a rule, however, no recognition
will be extended if one of the spouses possesses the French
nationality.98

96 See in particular the answer by the French minister of Justice to question N°

16294, dated 9 March 2006 : in relation to the effects in France of a same sex
marriage concluded in the Netherlands, the Minister of Justice stated that,
provided none of the spouses were French nationals, such marriage could
produce effects in relation to the assets of the spouse – matrimonial property
and succession. (the answer has been reproduced in Rev. crit. dr. int. priv.,
2006, at pp. 440-441). An earlier ministerial answer went in the same direction
(answer to question n° 41553 of 26 July 2005, commented upon by E. FONGARO,
Dr. fam., 2005, n° 255). Commentators were, however, divided as to the
possibility to recognize some effects to foreign same-sex marriage. Using the
doctrine of the 'effet atténué' of the public policy, Revillard argued that there
was room for recognition of some effects (M. REVILLARD, “Le PACS, les
partenariats enregistrés et les mariages homosexuels en droit international
privé”, Defrénois 2005, at p. 461). Fulchiron was less convinced. According to
Fulchiron, the effet atténué was a “voile chaste jeté sur une réception générale
du mariage homosexuel” (H. FULCHIRON, (fn. 26), at p.1257).
97 See also the decision by a Luxemburg court in relation to a marriage concluded
in Belgium between a Belgian national and a third country national (from
Madagascar) : although the Luxemburg Minister of Foreign Affairs at first
refused to grant a residence permit, the Administrative Court reversed and
held that the marriage should be given effect : Administrative Tribunal of
Luxemburg, 3 October 2005, BIJ, 2006, 7, with critical comments by P. KINSCH.
The Court first pointed out to the right to family life as protected by Art. 8
ECHR. It also held that refusing to recognize the marriage would be
inconsistent with the choice made by the Luxemburg legislator to recognize the
possibility for same-sex partners to conclude a partnership. See our comments
in « L'union entre personnes de même sexe s'exporte-t-elle bien? », Rev. dr.
étr., 2009, 699-702.
98 This may be inferred from the answer by the French minister of Justice to

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This approach of partial recognition had been advocated by Bogdan,

who insisted that it would be more balanced to “examine the
circumstances of each particular case in order to find out whether
giving effect to the Dutch same-sex marriage legislation would, in
casu, lead to a result incompatible with the ordre public of the
forum”.99

The effects of this piecemeal approach for the same-sex spouses are
probably not as devastating as the blunt refusal to recognize the
union. It remains, however, that the spouses will live in great
uncertainty, without the comfort of knowing in advance what part of
their relationship will be accepted and which part not. If the same-
sex spouses may rely on their marriage in a specific context, it is
likely that application will be made of the normal conflict of laws
rules. An alternative to the piecemeal approach is to make reference
to the doctrine of the preliminary question and to consider that the
existence of a same-sex relationship must, as a preliminary
question, be addressed under the law applicable to the main
question – such as the right to maintenance or succession rights.100

A last position starts from a different assumption : the existence of a

family relationship as created abroad is recognized, but the
institution is modified : instead of being recognized as a marriage,
the same-sex marriage is 'downgraded'. This is the position in
Switzerland,101 Finland 102 and, apparently, also in Germany.103 As a

question N° 16294, dated 9 March 2006 (reproduced in Rev. crit. dr. int. priv.,
2006, at pp. 440-441). The position is the same in Scotland for persons with
Scots domicile (see J. M. CARRUTHERS, “Scots Rules of Private International Law
Concerning Homosexual Couples. Report to the XVIIth International Congress of
Comparative Law”, E.J.C.L. Vol. 10.3 (Dec. 2006), at p. 1).
99 M. BOGDAN, (fn. 31), at p. 28. It has been argued in Scotland that where same
sex marriage is valid by the lex loci celebrationis and where each partner has
legal capacity under his personal law to enter into such marriage, recognition
of such marriage could be afforded to “certain incidents” of the marriage ( J. M.
CARRUTHERS, (fn. 98) at p. 1). This position is no longer tenable since the entry
into force of the Civil Partnership Act. On the position of Scots law, see also
KENNETH MCKNORRIE, “Would Scots Law Recognise a Dutch Same-Sex Marriage?”, 7
Edinburgh L. Rev. 147-73 (2003).
100See the explanations of NERINA BOSCHIERO, (fn. 25) at pp. 64-68.
101See Art. 45-3 Swiss Private International Law Act.
102TUULIKKI MIKKOLA, “Finnish Report”, Report to the XVIIth Congress of International
Academy of Comparative Law, Utrecht, 2006, at p. 4.
103At least it is argued in the literature that even though under German law
same-sex marriages are not possible, it would be inconsistent to allow
recognition of same-sex partnership and to refuse such recognition to foreign
same-sex marriages. Accordingly, Martiny has suggested that such marriages
should also afforded recognition under Art. 17b EGBGB (D. MARTINY, “Private
international law aspects of homosexual couples. German report”, Report to

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consequence, a marriage concluded in Luxembourg between two

men or two women, will be deemed to be a partnership when the
spouses settle in Germany. This is also the current position under
English law. Under the Civil Partnership Act, a same-sex marriage
concluded in the Netherlands is treated as a civil partnership. This
recharacterization of the relationship will often bring in an important
limitation of the effects the relationship may produce. Although
there is still some doubt on the question, it seems that the
consequence of such a 'downgrade' is that the relationship will be
exclusively governed by local law. No reference will be made to the
law of the country where the relationship was formed, to govern its
consequences.

3.2. Partnerships

What law govern the rights and obligations of same-sex partners?

What law will be applied when partners wish to bring an end to their
relationship? These questions will be examined both for local
partnerships and for foreign partnerships. In the latter case, a
preliminary question arises, as one should first find out whether the
foreign partnership will be recognized and, if yes, to what extent.

As no consensus has appeared on the question of the consequences

of partnerships, it is necessary to distinguish between different
approaches.

3.2.1. First approach : law of the country of origin

In a first group of countries, a clear position has emerged to the

effect that the law of the country of registration of the partnership
will be applied. This application of the lex loci registrationis has

the XVIIth Congress of International Academy of Comparative Law, Utrecht,

2006, at p. 7-8). See also PETER MANKOWSKI and FRIEDERIKE HÖFFMANN, “Scheidung
ausländischer gleichgeschlechtlicher Ehen in Deutschland?”, IPRax, 2011, 247-
254, at pp. 250-252. A lower court in Berlin has recently followed this opinion
and considered that a same-sex marriage concluded in Canada should be
treated as a partnership and registered as such in the civil status registers (VG
Berlin, 15 June 2010, 23 A 242.08, IPRax, 2011, at p. 270). Another lower court
has likewise considered that a same-sex marriage celebrated in the
Netherlands should be dealt with under Art. 17b EGBGB (AG Münster, 20
January 2010, IPRax, 2011, at p. 269), Compare, however, with A. RÖTHEL,
“Gleichgeschlechtliche Ehe und ordre public”, IPRax, 2002, 496-500 – who
argued that foreign same-sex marriages should be dealt with under art. 13
EGBGB and hence considered as marriages.

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been adopted in France,104 Belgium 105 and the Netherlands.106 It has

also been suggested by the European Commission in its recent Draft
Regulation on the property consequences of registered
partnerships.107

The rationale of the rule is clear : in view of the diversity of laws in

terms of partnerships and their effects, it was felt that it was too
early to severe the umbilical chord between the partnership and the
state or origin. Without a basic consensus on the shape and effects
of partnerships, these countries deemed it difficult to allow the
application of a foreign law on a local partnership.

At the same time, the lex loci registrationis principle guarantees the
recognition of foreign partnerships. In principle, the adoption of the
lex loci registrationis principle should solve the recognition puzzle
easily : foreign partnerships are recognized provided that they
comply with the requirements of the country of origin. 108 Recognition
is in principle therefore not an issue. It will be granted when the
partnership is in compliance with the requirements of the state of
origin. The lex loci registrationis rule works in other words both as a
conflict of law rule and as a recognition rule. 109 This is felt to be in
compliance with the free movement imperatives of both the
European Union and the ECHR.110

104Art. 517-7-1 of the French Civil Code.

105Art. 60 of the Code of private international law. See also in Québec, art.
3090.1(2) of the Civil Code.
106In the Netherlands, the rule is the same although it is expressed differently.
Article 5(1) of the Wet Conflictenrecht Geregistreerd Partnerschap provides
that for the 'personal relationships' of partners, Dutch law applies if the
partnership has been concluded in the Netherlands, while according to Art.
5(2), the law of the country of origin applies if the partnership has been
concluded abroad. In the latter case, the rule makes allowance for application
of the mechanism of renvoi. As far as the patrimonial relationships are
concerned, Article 6(1) of the law provides that the partners may choose which
law applies. If the partners have not made any choice, the law of the State of
origin will apply according to Article 7 Wet Conflictenrecht Geregistreerd
Partnerschap, which again distinguishes the position of partnerships concluded
in the Netherlands and partnerships concluded abroad – the latter being
qualified by the possibility to take into account the private international law
rules of the country of origin.
107See art. 15 of the Proposal for a Council Regulation, 2011/0058 (CNS).
108For France, see e.g. P. CALLÉ, (fn. 31) at p. 1664.
109In fact, the need to have a rule dealing with recognition of foreign
partnerships is the reason why in some countries a conflict of law rule was
adopted in the first place. This is clear in France where the new art. 515-7-1 of
the Civil Code was adopted primarily to make it possible for foreign
partnerships to be recognized, see P. HAMMJE, (fn. 76) at pp. 483-484.
110See in this sense, P. CALLÉ, (fn. 31) at p. 1664-1665 and P. HAMMJE, (fn. 76) at p.
484.

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A foreign partnership will therefore be governed by foreign law,

while a local partnership is subject to local law. This simple principle
is only qualified by the operation of classic mechanisms, such as the
public policy exception. One could imagine for example that a
country could refuse to recognize the possibility for one same-sex
partner to adopt the child of his/her partner, even though this is
possible under the law of the country of origin. Practice has,
however, shown that recognition could be granted even where it is
not expected. So it is that the French Cour de cassation has recently
accepted to give effect to the adoption by a woman of a child born
out of her partner, also a woman, excluding the application of the
public policy exception which the lower courts had relied on to deny
recognition to the adoption which took place in the United States. 111
Another possible limitation to the effects of a foreign partnership
may be found when provisions of local law are deemed to be
mandatory.112

The simplicity of the lex loci registrationis principle is, however,

somewhat an illusion. Indeed, behind the appearance of a simple
rule, substantial difficulties arise.113 The first one relates to the
precise scope of the principle. The scope of the lex loci registrationis
rule may be limited in two different respects : in the first place in
relation to the type of partnerships concerned and in the second
place in relation to the effects covered by the rule.

Looking at the first issue, there is a striking difference between the

approaches of the countries concerned. In some countries, such as
the Netherlands and Belgium, the legislator has outlined ex ante the
minimum content any partnership should have, in order to qualify as
partnership. So it is that under Article 2-5 of the Dutch WCP, a
foreign partnership will only be recognized as such provided the
partners maintain a close personal relationship and the partnership
111Cour de cassation, 8 July 2010, Rev. crit. dr. int. priv., 2010, 747, with
comments by PETRA HAMMJE. In another decision, the Court of First Instance of
Bobigny has accepted that two same-sex partners who had concluded a civil
partnership in England could benefit from the preferential tax treatment
reserved in France to persons who are bound by a partnership (TGI Bobigny, 8
June 2010, AJ Famille, 2010, at p. 442 with comments by A. CRESSENT).
112This has been suggested in relation to art. 515-4 of the French Civil Code by P.
CALLÉ, (fn. 31), at p. 1667.
113The first difficulty is obviously that the application of the lex loci registrationis
requires the authority of the host country to apply foreign law when the
partnership was concluded abroad. In practice, local authorities could be
required to apply Norwegian law for partners registered in Norway, German law
for partners registered in Germany, etc. This difficulty has been underlined (P.
CALLÉ, (fn. 31), at p. 1667). It is, however, not unique and arises any time a
bilateral conflict of law rule is adopted.

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has been registered by a local and competent authority. Further, the

partnership must exclude the possibility for partners to marry or
conclude another partnership with a third party. Finally, it must have
consequences which are roughly similar to those arising from
marriage.114 Belgium on the other hand reserved the application of
the special rule it created for partnership to those foreign
partnerships which do not create between the partners a
relationship equivalent to that created by marriage.115

In France on the contrary, no such 'minimum content' rule has been

adopted.116 Hence, the bilateral conflict of law rule may be applied
to any foreign partnership, no how weak or strong this partnership is
according to the law of its country of origin.117

In addition, another issue arises in relation to the scope of the lex

loci registrationis rule. Does it cover all possible consequences of a
partnership, which should therefore be governed by the law of the
country of origin? 118 The French text is in that respect, again,
114It is unclear what is the fate of a foreign partnership which does not meet
these requirements – such as e.g. a Belgian law partnership. In the early days,
a confusion appeared in the Netherlands in relation to the French partnership :
the Dutch Ministry of Foreign Affairs wrote to the French embassy in The Hague
that since the French partnership showed much similarity with the Dutch
partnership, it should be deemed to fall within the ambit of the Dutch law on
conflict of laws rules in relation to marriage. With Jessurun d'Oliveira, it can be
said that this is quite a curious statement (H.U. JESSURUN D'OLIVEIRA, (fn. 36) at p.
89).
115Art. 58 Code. If the partnership is much stronger and produces effects
equivalent to those of marriage, application may be made of the conflict of
laws rules covering marriage. The abstract distinction made in the Code of
Private International Law has been made more precise by a circular letter
issued by the Belgian Minister of Justice in May 2007. According to this
document, all registered partnerships, such as the Scandinavian and German
schemes that resemble marriage, should be recognized as marriage in
Belgium. For more details, see WOLF SIEBERICHS, “Qualifikation der deutschen
Lebenspartnerschaft als Ehe in Belgien”, IPRax, 2008, pp. 277-278.
116The situation is the same in Germany, where no clear definition of
'partnership' has been included in Art. 17a EGBGB. It seems accepted that this
rule may be applied to foreign partnerships which although not identical to the
German partnership, are broadly similar – see G. HOHLOCH and C. KJELLAND, “The
New German Conflicts Rules for Registered Partnershps”, Yearb. Priv. Intl. L.,
2001, 223-235, at p. 229.
117It has been observed that the public policy mechanism could nonetheless
intervene and prohibit recognition in France of foreign partnerships e.g. when it
appears that a partnership has been concluded between members of a family
(see P. HAMMJE, (fn. 76) at p. 487). Further, it is doubted whether the new rule
may be applied to same-sex marriage (see H. PEROZ, J.D.I., 2010, (399), 402, n°
11).
118It is clear and not challenged that issues such as the majority or the parental
links between partners, remain governed by the normal conflict of law rules
and could, hence, be subject to a foreign law. This is the case for the majority :

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deceptively simple. It only refers to the “effects” of the partnership,

without any further indication as to the nature of the effects
covered. It is therefore unclear whether such effects as property
relationship, alimony claims or succession rights are covered. 119 The
rule adopted in Belgium goes slightly further : Article 60 of the
Belgian Code refers to the consequences of the partnership on the
partners' “assets”. This seems to exclude all other effects, such as
possible maintenance claims made by one of the partners. Article
60 must, however, be read together with other provisions of the
Code, which provide specific solutions for other aspects not covered
by Article 60. It seems therefore that for the consequences not
covered by article 60, one should apply the 'normal' rules of the
Code.120

The Dutch legislator has gone much further in devising a

comprehensive system dealing with the effects of partnerships. The
WCP provides a detailed set of rules dealing with the various effects
of partnerships, including rules for the relations with third parties.
For some issues, the choice has not been made for the lex loci
registrationis. The WCP, which has greatly benefited from the
thinking of Jessurun d'Oliveira, subjects the matrimonial property
regimes of the partners to the law chosen. 121 Likewise, the partners
may choose which law apply to the dissolution of their
partnership.122

The scope of the lex loci registrationis rule is one issue which
deserves close attention. Another problem relates to the
consequences of the application of the law of the country of origin.
The choice for the law of the country of origin in effects amounts to

under French law, two persons may only conclude a partnership provided that
they are adults (art. 515-1 Civil Code). Whether or not the partners are indeed
adults, will not be examined under French law but under the normally
applicable law (see e.g. P. CALLÉ, (fn. 31), at p. 1664).
119See the doubts of P. HAMMJE, (fn. 76) at p. 489-490 and the examples offered by
P. CALLÉ, (fn. 31) at p. 1667-8. According to Weiss-Gout and Niboyet-Hoegy, it is
clear that such effects as adoption, maintenance and inheritance rights are not
govened by Art. 515-7-1 (B. WEISS-GOUT et M.-L. NIBOYET-HOEGY, (fn. 27) at p. 18).
Peroz argues that the rule should apply to all 'patrimonial effects' of the
relationship (J.D.I., 2010, (399), 407, n° 26).
120The CIEC Convention only addresses what it calls the “effets en matière d'état
civil”, which concern the effect of a partnership on the possibility for a partner
to remarry, the consequences on the name of the partners and the termination
of partnership, in so far as it has consequences on the previous two elements.
121It goes in this respect even further than the 1978 Hague Convention because
it does not restrict the choice by partners to the law of their nationality or
residence. On this aspect, see H.U. JESSURUN D'OLIVEIRA, (fn. 36) at p. 92.
122According to Article 22 WCP, Dutch law applies in principle, but the parties
may make a choice in favour of the application of the lex registrationis.

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the model of the Wirkungstreckunstheorie, well known in the law of

foreign judgments.123 As with foreign judgments, the application of
the law of the country of origin may give rise to difficulties. This will
be the case when the law of the country of origin designates one of
its institution and entrusts it with a specific mission in relation to the
partnership. Say two partners want to terminate their relationship.
How should this be dealt with if it appears that the termination is,
according to the law of the country of origin, the privilege of an
authority which does not exist in the country where termination is
sought, or which does not have such competence in the country
where termination is sought? This may explain why in some
countries, termination was exclusively reserved for local
partnerships 124 or priority was given to local law to govern
termination.125

The most serious difficulties arise in relation to the consequences of

the partnership which are deemed not to be dealt with by the law of
the country of origin, but by another conflict of law rule. As already
indicated, it is generally accepted that the lex loci registrationis only
governs some of the consequences of the partnership, leaving other
consequences to the general conflict of laws rules. This is manifest
when one considers the possible claims of the surviving partner on
the estate of a partner who passed away. In France and Belgium, it
is accepted that these claims fall outside the lex loci registrationis
and must be dealt with under the general rule of conflict applicable
for succession.126

The application of another law than the law of the state of origin
could lead to peculiar results. If two same-sex partners who have

123As noted by A. QUINONES ESCAMEZ, (fn. 4) at p. 371.

124This is the case in Belgium (art. 60-3 of the Code). In France, it seems that no
such limitation exists. As a consequence, French authorities could be requested
to terminate a partnership created under a foreign law. This has given rise to a
debate on the question whether French authorities have jurisdiction to
entertain such a request and which rules of jurisdiction should be applied (see
P. CALLÉ, (fn. 31), at p. 1669).
125See e.g. art. 23 of the Dutch WCP : a foreign partnership may in principle only
be terminated in the Netherlands on the basis of Dutch law. A provision is
made to allow termination on the basis of foreign law if the partners have
made a choice for the application of foreign law (art. 23-2).
126For France : P. HAMMJE, (fn. 76) at p. 490; P. CALLÉ, (fn. 31), at p. 1668; G. KESSLER,
“Reconnaissance des partenariats étrangers : les enseignements de la loi du 23
juin 2006”, AJ Famille, 2007/1, (23), at p.25; H. PEROZ, J.D.I., 2010, (399), 403, n°
13. In Belgium : J.-L. VAN BOXSTAEL, Code dip. Premiers commentaires, Larcier,
2010, 113, n° 57; L. BARNICH, “Les droits du conjoint survivant et du cohabitant
légal survivant. Questions de droit international privé”, in Conjugalité et décès,
A.-C. VAN GYSEL (ed.), Anthémis, 2011, 145-160, at p. 153. Likewise in Sweden
for the partnership, see M. BOGDAN, (fn. 54) at p. 4.

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concluded a partnership in the Netherlands, move to France where

one of the partners has bought a house, French law will govern the
rights and claims of the surviving partners. A question which arises
in this respect is whether the Dutch law partnership may be deemed
to correspond to the French law partnership to which the French law
provisions on succession refer.127 This question is not specific to
same-sex partnerships. It also arises when dealing with foreign
marriages which deviate from the local standard – such as
polygamous unions.

It may be easier to deal with this difficulty in those countries which

have made an ex ante determination of what constitutes a
partnership equivalent to the local partnership, such Belgium and
the Netherlands. To take the example of two partners bound by a
German law partnership who reside in Belgium, the court will have
first determined that this partnership must be seen as a marriage
for the purposes of conflict of laws rules. It will then not be difficult
to accept that the partners must also be treated as spouses when
applying Belgian substantive law.128

In France on the other hand, no such ex ante determination has

been made. In the absence of such an abstract definition, judges
and practitioners alike bear the responsibility of determining
whether a given foreign partnership should be recognized as the
equivalent of the French PAC's.

Once the hurdle of equivalence is passed, another difficulty arises

which has already been mentioned in relation to same-sex marriage.
The application to specific consequence of the partnership, of
another law than the law of the country of origin, could result in a
substantial modification of the partnership as initially created. The
partnership could entail less or more effects than contemplated
under the law of the State of origin. In the example of the Dutch
same-sex partner living in France, whose entitlement in the estate
of his deceased partner is governed by French law, this will lead to a
clear 'downsizing' of the Dutch partnership, as under French law
partners only have minimal succession claims. Conversely, if two
persons have concluded a partnership in France and move to
Belgium, the succession claims will be governed by Belgian law
which grants more rights than French law. 129 130 It has been argued

127Art. 515-6 French Civil Code.

128Barnich has also argued that equivalence should be accepted for foreign
partnerships which meet the definition of Art. 58 of the Belgian Code (L. BARNICH,
(fn. 126) at p. 158).
129See art. 745octies of the Civil Code, introduced by the Act of 28 March 2007.
130The draft Regulation on successions to the estates of deceased persons could

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that if the law of origin of the partnership does not grant the
surviving partner any inheritance right, this choice should be
respected even if the law applicable to the inheritance rights affords
some protection to the surviving partner.131

In an extreme case, the law declared applicable could simply ignore

the institution of the partnership – leaving partners unprotected.
Some legislators have anticipated the problem and provided a fall
back solution. This is the case in Belgium for the issue of the
matrimonial assets of the partners. When questions of matrimonial
assets arise in relation with third parties, the Belgian legislator has
deviated from the application of the lex loci registrationis and
preferred the application of the normal rule. 132 It may be that the
law applicable under this rule does not allow same-sex partnership.
In order to deal with this vacuum, the law provides a fall-back
provision in favor of the lex loci registrationis.133 Likewise, the
German legislator has adopted a specific rule which grants the
surviving partner the benefit of the application of the law of the
country of origin if the law applicable to the inheritance does not
give the surviving partner any right.134

3.2.2. Second approach : law of the host country

In a limited number of countries, the preference is given to another

approach : the consequences same-sex partnerships are exclusively
subject to local law, without consideration of the law of the country
where the partnership was concluded.

When dealing with local partnerships, this does not make much
difference when compared with the former method. The difference
appears, however, when one deals with foreign partnerships. Since
the only local law is taken into account, foreign partnerships will
bring clarity. The first draft issued by the Commission in October 2009 did not
make any reference to the position of partners. Its Article 19 provided that the
law applicable would govern “the eligibility of the heirs and legatees, including
the inheritance rights of the surviving spouse...”. A more recent version of the
draft Regulation goes further : the new Article 19(2)(b) also includes a
reference to the “inheritance rights of the surviving spouse or partner ...”.
131See A. BUCHER, (fn. 55) at p.195-196, n° 553. See the criticism by G. GOLDSTEIN,
(fn. 3) at p. 332-333.
132To be found in Art. 54 Belgian Code.
133Art. 60-3 in fine Code.
134See Art. 17 a § 1 in fine EGBGB. See the criticism of this solution by Goldstein
which deems it to be “excessive” (G. GOLDSTEIN, (fn. 3) at p. 331-332). According
to Goldstein, “De notre point de vue, il s'agit d'une illustration extrême d'un
rattachement généralement critiquable de toute l'institution à la loi du lieu
d'enregistrement” (at p. 332).

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also be governed by local law, no matter where they have been

concluded.

The clearest illustration of this approach is to be found in England.

As is well known, under the 2004 Civil Partnership Act, a registered
partnership formed abroad and capable of being recognized in
England,135 will be subject to a process of “conversion”. 136 Section
215 of the CPA indeed provides that “[t]wo people are to be treated
as having formed a civil partnership as a result of having registered
an overseas relationship...”. Accordingly, two persons having
concluded a PAC's under French law, will be deemed to have entered
a civil partnership. The relation will generate the same effects as a
Civil Partnership concluded in England.137 As we have already seen,
the same approach, which is in conformity with the very strong lex
fori favor of England in family law matters, applies to same-sex
marriages concluded abroad.138

The English method leads to a 'rewriting' of the partnership. Same-

sex partners who move to England after having concluded a
partnership in Finland, may find that their partnership produces
fewer rights than in the home jurisdiction. On the other hand,
partners bound by a French pacte civil de solidarité will also be
treated as bound by a civil partnership. They will therefore find out
that their partnership generates more effects in case of a
breakdown than if they has stayed in France.

In Germany, the rule is slightly more sophisticated : the starting

point is that the foreign partnership is governed by the law of the
registration.139 However, Art. 17b § 4 EGBGB provides that the
consequences of a foreign partnership may not exceed those

135This supposes that the relationship is either listed in Schedule 20 of the Act or
meets certain conditions (which are listed in section 214).
136As noted by K. NORRIE, “Recognition of Foreign Relationships under the Civil
Partnership Act 2004”, J. Priv. Intl. L., 2006, 137-167, at p. 161.
137Before the adoption of the Act, the situation was muddled under English law, it
was difficult to predict whether English courts would afford recognition to
foreign partnerships, see YVETTE TAN, (fn. 35) at pp. 449-452 and pp. 455 ff (Ms
Tan referred to the question as “an unchartered area for English private
international law”, at p. 455). See on the same subject, JOHN MURPHY, “The
Recognition of Same-Sex Families in Britain: the Role of Private International
Law," Intl J. L. Policy & Fam. (2002 - vol. 16, pp. 181-201).
138In California, the same approach is followed. Under Section 299.2 of the Family
Code of California, a registered partnership or another legal union that was
validly formed in another jurisdiction between two persons of the same sex will
be recognized as a “domestic partnership” provided it is “substantially
equivalent to a domestic partnership”.
139See Art. 17b (1) EGBGB.

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provided by German law.140 Even though it has been argued that this
limitation should only come into play when a partnership may
generate under foreign law consequences which are completely
unknown under German law or would endanger an existing
marriage,141 this provision means in effect that, as is the case in
England, a foreign partnership may not have other effects than
those provided for under German law. 142 143 In contrast to the rule
adopted under English law, the German 'Kappungsgrenze' seems to
work only to reduce the effects of foreign partnerships. The rule
cannot does not seem to work the other way around and allow a
foreign partnership to produce more effects than provided for under
the law of the country of origin. Account should, however, be taken
of an additional provision which is made for matters relating to
maintenance and to succession, which remain governed by the
general conflict of laws rules. The rationale of this special treatment
is apparently to guarantee that all partnerships will generate effects
in those fields. As a whole, a foreign partnership may therefore
generate more effects when the partners reside in Germany than in
the country of origin.144

The same position seems to have been adopted in Finland, where

section 13 of the Partnership Act provides that the legal
consequences of a foreign registered partnership are those of a local
registered partnership. As a consequence, foreign partnerships may
not have 'stronger' effects than the legal effects granted to Finnish
partnerships. It has, however, been reported that this rule only
applies to reduce consequences generated by foreign partnerships
which produce more effects than partnerships under Finnish law. If
on the other hand, the foreign partnership generates less far-
reaching effects than the partnership under Finnish law, partners

140On the constitutional reason of this 'capping limit', see KARSTEN THORN, “The
German conflict of law rules on registered partnerships”, in Legal recognition of
same-sex couples in Europe, K. BOELE-WOELKI and A. FUCHS (ed.), Intersentia,
(159), at p. 165.
141KARSTEN THORN, (fn. 140), at p. 165.
142On the difficulty of comparing the effects a partnership may entail under
German and foreign law, see D. MARTINY, (fn. 103), at p. 12.
143It seems that the approach taken by Luxemburg goes in the same direction.
Under the new Art. 4(1) of the Law of 9 July 2004 on partnerships (Inserted by
the Law of 3 August 2010), foreign partners may register their partnerships in
Luxemburg, provided they comply with the requirements of Art. 4 of the law.
According to Wiwinius, the result is that the foreign partnership will be granted
the same effects as a Luxemburg one (Wiwinius writes : “L'inscription au
répertoire civil permet ainsi d'assimiler le partenariat étranger au partnerariat
luxembourgeois” - p. 383, n° 1834).
144The rationale of this special treatment is apparently to guarantee that all
partnerships will generate effects in those fields - see D. MARTINY, “(fn. 103), at
p. 11.

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will not be able to enjoy additional effects after moving to Finland.145

3.2.3. Third approach : analogy with marriage

Switzerland stands out when considering the effects of

partnerships : instead of subjecting those effects to the law of the
country of origin or to Swiss law, the Swiss legislator has chosen to
apply by analogy the conflict of law rules devised for the marriage.
It is interesting to note that this choice was driven by the realization
that application of the lex loci registrationis could hinder the cross-
border mobility of partners.146 As a consequence, there is no single
rule governing the consequences of partnerships. Rather, partners
are subject to different rules depending on the consequence
concerned.

As with the first model, questions arise when a law is applied to the
partnership, which is different from the law under which the
partnership was created. So it is that Swiss law may be applied to
the matrimonial assets of partners as the law of the common
residence of the partners. In practice, partners will therefore enjoy
the rights and obligations provided for by Swiss law, even if this
means extending the consequences of the partnership further than
possible under the law of the country of origin. Although Swiss law
does not make any allowance for a distinction between 'strong' and
'weak' partnerships, it has been suggested that when under the law
of the country of origin, the foreign partnership only produces
limited effects, the application of Swiss law should be corrected to
avoid distorting the nature of the partnership. 147 This could for
example entail that if the partnership breaks down, the partners
would only be entitled to a reduced form of maintenance if it
appears that under the foreign law, partners are not entitled to full
fledge maintenance. This makes for a complex balancing exercise,
which involves comparing the effects of partnerships under Swiss
law and the law of the country of origin. Bucher has for example
suggested that if it appears that under the law of the country of
origin, the partnership does not have any automatic effect on the
assets of the partners, the application of Swiss law should be
qualified and the preference given to the application of general rules
of Swiss contract law instead of the specific rules relating to
matrimonial property.148

145TUULIKKI MIKKOLA, “Finnish Report”, Report to the XVIIth Congress of International

Academy of Comparative Law, Utrecht, 2006, at p. 4.
146A. BUCHER, (fn. 55), at p. 193, § 544.
147A. BUCHER, (fn. 55), at p.194 ff, § 548 ff.
148A. BUCHER, (fn. 55), at p.195 ff, § 550.

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4. OUTLOOK

What can be concluded from the preceding overview? Certainly, one

will have noted the complexity of the questions reviewed so far. This
is certainly far from specific to same-sex relationships. Cross-border
family law matters can be very complex, even when the relevant
conflict of laws rules have been unified. The rapid evolution of the
legal rules in the field of same-sex relationship adds, however, a
new dimension to the inherent complexity.149

That matters are not easy to grasp, derives mainly from the
diversity of approaches and rules adopted by the States whose laws
have been examined. Although diversity is, again, not unique to
same sex relationships, there is probably a much more diverse
approach to those relationships than to any other family relationship
today.

Another striking feature of the law today is the unsettled character

of many questions. Although a notable evolution has occurred, with
many national legislators adopting specific conflict of laws rules for
same-sex relationships, many questions remain unresolved. Some of
these questions pertain to the scope of application of international
instruments. Other concern the difficult process of characterization.
When one succeeds in determining which law applies, questions
may also arise when it appears that the law declared applicable
does not recognize the relationship at hand. It is all in all a wonder
that these many questions have not given rise to more case law.150

The diversity and lack of certainty may lead to important obstacles

for same sex partners. This is decidedly the case when the partners
move from one country to another. Same sex relationships are
indeed, much more than other relationships, prone to face
recognition problem when crossing borders. Recognition issues may
arise in relation to a specific effect of a relationship – such as when
a country will deny any effect to the choice of law made by two
same sex partners in another country, on the basis of the latter's
private international law. The difficulties may be more serious when
they lead to the application to one relationship of a law under which
the partners have more or less rights, as this may modify the
149In that respect, experience has shown that from a practical perspective, it is
easier to avoid working with closed lists of legal systems : the system in the
Scandinavian countries, where access to partnership is made easier for the
nationals of some countries whose laws also allow partnership, has been found
overly cumbersome, since the list of countries was included in the law (see the
observations of M. BOGDAN, (fn. 54) at p. 4).
150See the German cases collected and made available at
www.lsvd.de/211.0.html#c1638.

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outlook of the relationship – such as when French same-sex partners

move to Belgium and the surviving partner's claim is governed by
Belgian law, which grants more rights to the surviving partner than
does French law.

The problem becomes fundamental when the relationship as such is

denied any effect – a difficulty which affects same sex marriage
more than partnership. All in all, there is a serious risk of limping
relationships.

Limping relationships are certainly not new, nor are they specific to
same-sex relationships. The phenomenon is probably as old as the
first attempts to tackle cross-border family relationships. In many
other contexts, family relationships are deeply affected by lack of
recognition – it is enough to refer to the situation of many spouses
whose divorce is not recognized in their country of residence
because it is based on the unilateral decision of the husband. If
there is something specific to same-sex relationship, it may be that
the plight of limping relationship is decreasing with time passing by.
Indeed, as more and more States have introduced legal recognition
for same-sex couples, this increases substantially the possibility for
these relationships to be recognized abroad.151

It remains that same-sex partners and spouses may be caught in a

very difficult situation when their status is not recognized abroad.
This explains why in many instances, partners have felt the need to
consolidate their relationship from a legal perspective. Because of
the doubts existing on recognition of a partnership concluded
abroad, it is not uncommon for parties to conclude a new
partnership locally - and to be advised to do so. This is a clear sign
that parties are aware of the precarious status of their union.152

In many instances, partners will, however, be unable to consolidate

their relationship and will instead face a complete denial of their
status. As in other family contexts, this could lead to inextricable
situations. Take the situation of two Dutch different-sex partners
who have entered into a partnership under Dutch law. If these
partners move to Germany, their partnership will not be recognized,
as Art. 17b EGBGB only aims at same-sex partners. 153 The partners
151As noted by G.-R. DE GROOT, “Private International Law Aspects Relating to
Homosexual Couples”, EJCL, vol. 11.3 (2007) at p. 16.
152According to M. Revillard, in many instances foreign partners chose to
conclude a new partnership in France before buying a house or apartment
there (M. REVILLARD, “Le pacs, les partenariats enregistrés et les mariages
homosexuels dans la pratique du droit international privé”, Defrénois, 2005, p.
461).
153This issue is discussed in German literature. While some have argued that Art.

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will further be unable to marry, both in the Netherlands and in

Germany.154 Finally, even dissolving the partnership requires a
demonstration that life together has become unbearable. The
partners may therefore be literally trapped in a relationship which
may be difficult to export to the country of their new residence.155

Could one say that this delicate situation is regrettable, but that the
persons concerned should have verified before moving to Germany,
whether their status would be recognized? Certainly, there is room
to say that in the field of same sex relationships, the persons
concerned are probably better equipped to anticipate recognition
difficulties. Whereas a French man and a Tunisian woman getting
married in Germany have no specific reason to suspect that their
marriage will not be recognized in their respective home countries –
save in the situation where the marriage is manifestly of
convenience -, it may be argued that the perspective is different
when two Italian men residing in Belgium, conclude a marriage
there. In the latter case, it is not going too far to say that the
persons concerned will at least have a vague suspicion that their
union could be met with skepticism, or even hostility in their country
of origin. In some countries, this was acknowledged when discussing
whether or not to require that civil servants inform the partners of
the risk of non-recognition when celebrating a same-sex union or
registering a same-sex partnership.156

The heightened consciousness of same-sex partners should,

however, be nuanced. Certainly, one may presume that same-sex
partners getting married in Belgium or the Netherlands, are at least
17b EGBGB only applies to same-sex relationships, other authors have
suggested that this provision could also apply to partnerships between
different sex partners (see D. MARTINY, (fn. 103), at p. 8-9).
154In both countries, the ability to marry is governed by the national law of the
spouses. Under Dutch law, partners bound by a partnership may not marry.
155With thanks due to Prof. Ian Curry-Sumner (Utrecht) who gracefully shared this
case with me.
156See for the Netherlands, L. PELLIS, “Het homohuwelijk, een bijzonder nationaal
product”, FJR, 2002, 162-168. In other countries, legislator consciously adopted
provisions which could give rise to limping relationships. This is the case for the
countries where a choice was made to subject access to partnerships to the lex
loci registrationis, without any consideration of the national law of the future
partners – see in France where before the adoption of Art. 515-7-1 of the Civil
Code, some commentators had suggested to only open partnerships to
partners whose national law allow for such relation (P. MAYER, “Les méthodes de
la reconnaissance en droit international privé”, in Le droit international privé.
Esprit et méthodes. Mélanges en l'honneur de Paul Lagarde, (Dalloz, 2005), at
p. 568, § 41). This has not prevented legislator from adopting a rule linking
access to partnership exclusively to French law, thereby creating the risk of
limping relationships - which has been clearly stressed by French
commentators, see P. HAMMJE, (fn. 76), at p. 486 and P. CALLÉ, (fn. 31) at p. 1665.

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vaguely aware that their status could be questioned in countries

where same-sex relationships are afforded no legal recognition
whatsoever. The same probably applies when same-sex partners
purposefully travel to a country to have their union registered
because no such possibility is offered in the country where they
reside.157 This assumption cannot, however, be made when the
recognition problem affects partners who have entered into a
partnership in their home country and who afterwards travel to a
country where some form of partnership also exist. This is precisely
the situation of the Dutch same-sex partners living in Germany : the
partners could reasonably assume that their Dutch law partnership
would be recognized in Germany, quod non.

Limping relationships are therefore not simply the responsibility of

the persons concerned.158 And it will be a meager consolation for the
partners and spouses concerned to learn that decisional harmony 159
and the need to avoid limping relationships,160 while still one of the

157See the Wilkinson case decided in 2006 by the English High Court, where a
couple of two women residing in England, had celebrated their marriage in
British Columbia before requesting recognition of their marriage in England -
Wilkinson v. Kitzinger, [2006] EWHC 2022 (Fam), (July 31, 2006).
158See, however, the comments made in the Explanatory Memorandum which
was introduced before the Dutch Parliament, together with the Same Sex
Marriage Act. The Dutch government indicated that “The question relating to
the completely new legal phenomenon of marriage between persons of the
same sex concerns the interpretation of the notion of public order to be
expected in other countries. Such interpretation relates to social opinion about
homosexuality . . .As a result of this, spouses of the same sex may encounter
various practical and legal problems abroad. This is something for future
spouses of the same sex to take into account” (Kamerstukken II 1998/1999,
26672, nr. 3, p. 7-8, I underline - Wet Openstelling Huwelijk of December 21,
2000. Translation taken over from KEES WAALDIJK, “Small Change: How the Road
to Same-Sex Marriage Got Paved in the Netherlands”, in Legal Recognition of
Same-Sex Partnerships : a Study of National, European and International Law,
R. WINTEMUTE and M. ANDENAS (eds.), 2001, (437), 464).
159Since Savigny it has been customary to point to decisional harmony as one of
the key objectives of private international law - see e.g. H. E. YNTEMA, “Les
objectifs du droit international privé”, Rev. crit. dr. int. priv., 1959, (1-29), at pp.
20-21 and W. WENGLER, “Les principes généraux du droit international privé et
leurs conflits”, Rev. crit. dr. int. priv., 1952, 595-622 and 1953, 37-60
(according to Wengler, legislators should act on the basis that “le droit
applicable doit être déterminé de manière telle que la solution soit, autant que
possible, identique à celle donnée dans d’autres Etats, et en particulier dans
ceux qui, à l’égard du même litige, affirment la compétence de leurs propres
tribunaux”, at pp. 610-611).
160Compare with the opinion of G. HOLLEAUX, « Die Grundbegriffe des
internationalen Privatrechts. Ein Bericht zu dem gleichnamigen Buch von P. H.
Neuhaus », FamRZ., 1963, 635-638, 637 (according to the learned French
judge, problems caused by limping relationships were not to be overestimated :
“Daß sie (limping relationships) ein Übel sind, gibt jedermann zu, aber ein
unvermeidbares und letzten Endes gar kein praktisch so fatales wie man

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overarching objectives of private international law, must today

compose with other goals and objectives which may sometimes
trump it.161

It remains that given the tendency of States to subject conflict of

laws rules to substantive family law objectives, which are
necessarily peculiar to local legislation, limping relationships seem
unavoidable today. And this is true both on a global scale, if one
considers the world at large where same-sex marriages and
partnerships are still the exception, and at the European level.

What solutions could private international law offer for these

difficulties? If one focuses on the recognition issue, several types of
solutions may be contemplated. In the long run, it may be that
same-sex couples could find support in human rights provisions and
in European law. These international norms have indeed recently
been called upon to support claim for cross-border recognition of
family status.162 It is certainly not excluded that a same-sex couple
could in certain circumstances draw support from recent case law of
the European Court of Human Rights and the Court of Justice to
obtain recognition of its status.163 The difficulty with this solution is,
however, that it operates on an ad hoc basis. Partners will be
required to make a case that denial of recognition constitutes a
breach of say Article 8 ECHR in view of the concrete circumstances
and taking into account their legitimate expectations. 164 As far as

manchmal zu meinen geneigt is. Der bisweilen herrschende panische

Schrecken vor hinkenden Verhältnissen ist eigentlich unberechtigt. Es leben
tatsächlich unzählige Leute ganz gemütlich in hinkende
Familienrechtsverhältnissen. Katastrophale Fälle […] sind wunderseltene
Ausnahmen. Jedenfalls ist es bei vielen Gelegenheiten – besonders auf den
Gebiet des Familienrechts – häufig eine weit bessere, menschlich gerechtere
und auch sachgemäßere Lösung, ein hinkendes Verhältnis freimütig in Kauf zu
nehmen, als aus abergläubiger Achtung vor einem theoretischen
Entscheidungsgleichheitsideal zu einer villeicht rechtstechnisch vertrebaren
[…] aber nichtsdestoweniger faktisch ungerechten Lösung Zuflucht zu
nehmen”).
161As shown by D. MARTINY, “Objectives and Values of (Private) International Law in
Family Law”, in International Family Law for the European Union, J. MEEUSEN et
al. (eds.), (Intersentia, 2007), (69), at p. 80-81.
162As noted for example by B. WEISS-GOUT et M.-L. NIBOYET-HOEGY, (fn. 27), at pp. 14-
16.
163A Luxembourg Court in fact drew in substance from Art. 8 ECHR to grant an
application for a residence permit by a third country national who had married
a Belgian national in Belgium. The Court found that denial of a residence
permit would amount to a disproportionate and unjustified breach of family life
Administrative Tribunal of Luxemburg, 3 October 2005, BIJ, 2006, 7, with critical
comments by P. KINSCH ; also published in Rev. dr. étrangers, 2009, 699.
164See for the qualifications and caveats which limit the application of Art. 8 in
this context, P. KINSCH, “Recognition in the Forum of a Status Acquired Abroad –

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the EU is concerned, the duty to recognize only becomes relevant

when the situation falls within the scope of European law – although
the rise of European citizenship has made it much easier to justify
application of European rules.

Further, States could still, both under human rights 165 and internal
market standards,166 resist recognition on various grounds. Finally
the debate on whether the principle of recognition could ever
achieve the status of a rule of European primary law is still open and
therefore much too tentative to constitute the basis of a general
solution.167 Hence, this principle based avenue falls short of a

Private International Law Rules and European Human Rights Law”, in

Convergence and Divergence in Private International Law? Liber Amicorum Kurt
Siehr, K. BOELE-WOELKI et al. (ed.), Schulthess, 2010, (259-275), at pp. 272-275.
165As clearly demonstrated by the Wilkinson case decided in 2006 by the English
High Court. In this case, a couple residing in England, had celebrated their
marriage in British Columbia. A petition was filed in England, to have the
marriage recognized as such (and not as a civil partnership under the CPA).
The High Court carefully reviewed the arguments made under Article 8, 12 and
14 of the ECHR to deny the petition (Wilkinson v. Kitzinger, [2006] EWHC 2022
(Fam), (July 31,2006)). The Court noted in particular that the fact that the UK
legislator had chosen to create a separate institution for same sex relations,
i.e. the civil partnership, and to deny same-sex partners the possibility to
marry, did not as such constitute a direct interference with or intrusion upon
with the private or family life protected under Article 8 ECHR (at §§ 80 ff).
166See the explanations of M. FALLON, “Constraints of internal market law on family
law” in International family law for the European Union, J. MEEUSEN et al. (eds.),
Intersentia, 2006, (149), at p. 160-162, §§ 13-15. M. Fallon notes that a Member
State could still refuse to give effect to a same sex marriage celebrated in
another Member State using the public policy ground, provided the host
Member State shows that the “substantive laws of the State of origin and of
the host State differ in such a radical way about the concept of matrimonial
union” (at p. 178-179, § 31). Mankowski has also noted that even if a principle
of recognition were to be accepted under EU law, this would not prevent
Member States from calling upon their public policy exception to withhold
recognition to a foreign same-sex marriage (PETER MANKOWSKI and FRIEDERIKE
HÖFFMANN, “Scheidung ausländischer gleichgeschlechtlicher Ehen in
Deutschland?”, IPRax, 2011, 247-254, at p. 253).
167Since the two groundbreaking contributions (P. LAGARDE, “Développements
futurs du droit international privé dans une Europe en voie d'unification :
quelques conjectures”, RabelsZ., 2004, 225 ff and R. BARRATA, “Problematic
elements of an implicit rule providing for mutual recognition of personal and
family status in the EC”, IPRax, 2007, 5 ff), the debate has raged fiercely in the
literature with contributions calling for the development of a new recognition
paradygm (e.g. P. LAGARDE, “La reconnaissance mode d’emploi”, in: T. AZZI et al.
(eds.), Vers de nouveaux équilibres entre ordres juridiques, Liber amicorum
Hélène Gaudemet-Tallon, (Dalloz, 2008, pp. 481-501); G. P. ROMANO, “La
bilatéralité éclipsée par l'autorité : développements récents en matière d'état
des personnes”, Rev. crit. dr. int. priv., 2006, pp. 457 ff.; CH. PAMBOUKIS, “La
renaissance-métamorphose de la méthode de reconnaissance”, Rev. crit. dr.
int. priv., 2008, pp. 514 ff) countered by the (see e.g. H.-P. MANSEL,
“Anerkennung als Grundprinzip des Europäischen Rechtsraum – Zur

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general, rule-based solution and does not seem beneficial in the

short run.

To achieve decisional harmony, the favorite method has always

been for States to agree on common rules. This is the very 'raison
d'être' of the Hague Conference. Certainly, if the Member States of
the EU or the Hague Conference were to adopt a Regulation or
Convention dealing with same-sex relations, this would go a long
way towards alleviating the many instances where recognition is
denied today.

However, this is, again, not a miracle solution. The first caveat is
that one may wonder if it is justified to adopt international rules
dealing with a specific family relationship, while leaving 'regular'
marriages out. Same-sex marriages are meant to be the almost
exact copy of 'classic' marriages. It is then not peculiar to provide
specific rules for the recognition of this type of marriage? Further,
why should different sex relationships be denied the privilege of
recognition?168

In any case, it is unclear at this stage where there would be enough

support among States to consider the adoption of a new
international instrument. Calls for international solutions are not
new.169 The Hague Conference has been considering whether or not
to undertake work in this area since 1996.170 Yet, the results seem

Herausbildung eines europäischen Anerkennungs-Kollisionsrechts :

Anerkennung statt Verweisung als neues Strukturprinzip des Europäischen
internationalen Privatrechts”, RabelsZ., 2006, pp. 651 ff. and A.V.M. STRUYCKEN,
“Co-ordination and Co-operation in Respectful Disagreement”, Collected
Courses, 2009, at p. 9 ff).
168It is true that different sex marriages may already count on the 1978 Hague
Marriage Convention. This Convention has, however, only be ratified by a
limited number of countries. If practice reveals significant problems of cross-
border recognition of marriages, work should be undertaken to promote the
1978 Convention as well.
169See e.g. K. BOELE-WOELKI, “De wenselijkheid van een IPR-verdrag inzake
samenleving buiten huwelijk”, FJR, 1999, 11-13 (calling for an intervention by
the Hague Conference) and J. ERAUW and J. VERHELLEN, “Het conflictenrecht van de
wettelijke samenwoning. Internationale aspecten van een niet-huwelijkse
samenwoningsvorm”, Echtsscheidingsjournaal, 1999, (150-161), at p. 160, nr.
41-42. See more recently, B. WEISS-GOUT et M.-L. NIBOYET-HOEGY, (fn. 27), at pp. 21-
23 – outlining two options for an intervention by the EU.
170In the 1980's the Hague Conference showed already some interest for work
around unmarried couples, see the various notes drafted by the Permanent
Bureau in relation to issues of jurisdiction, applicable law and recognition of
judgments relating to unmarried couples (the documents were produced in
1987, 1992 and May 2000). The most recent note was drafted by CAROLINE
HARNOIS and JULIANE HIRSCH ('Note on Developments in Internal Law and Private
International Law Concerning Cohabitation Outside Marriage, Including

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meager so far.171 The only existing instrument at this stage, the

Convention of the CIEC, has received little support – even though it
does not purport to create a comprehensive legal framework for
cross-border same-sex relationships, but only (and wisely) deals
with the recognition side.172

If one looks at the draft instruments proposed by the European

Commission in relation to matrimonial property, it is striking that the
text is very timid. Article 5 § 2 of the Draft Regulation relating to the
property consequences of registered partnerships provides that a
Member State “may decline jurisdiction if [its] law does not
recognise the institution of registered partnership”. 173 It is true that
article 18 of the same draft regulation makes it impossible for
Member States to use their public policy exception on the ground
that their law “does not recognise registered partnerships”. This
limitation may, however, be of little use if partners do not succeed
in vesting jurisdiction in a court.

The Divorce Regulation adopted in 2010 does not go much

further.174 Its Article 13 provides that courts of Members States are
not required to pronounce a divorce if the marriage is not valid
according to the local law. Although this provision could probably be
used in other contexts as well, it seems to open up the possibility for
States to refuse to entertain a petition for divorce filed by same-sex
partners.175 One may further note that the EU work in the field of
free movement of persons has been quite timid when it comes to
same-sex relationships, leaving it to Member States to decide
whether to grant free movement rights to such relationships.176
Registered Partnerships', Preliminary Document No 11 of March 2008, 60 p.).
171In April 2011, the Council on General Affairs and Policy of the Conference
invited the Permanent Bureau to continue to follow developments in the area of
“jurisdiction, applicable law, and recognition and enforcement of judgments in
respect of unmarried couples” (Conclusions and Recommendations of the
Council on General Affairs and Policy, April 2011).
172The Convention has been signed by Spain and Portugal and has only been
ratified by Spain.
173Proposal for a Council Regulation, 2011/0058 (CNS)
174Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing
enhanced cooperation in the area of the law applicable to divorce and legal
separation (OJ, L-3473/10 of 29 Dec. 2010).
175One should further note that the recent maintenance Regulation remains
silent on the question whether they may be applied to same-sex relationships :
Maintenance. The Draft Succession Regulation provides in art. 1 (3)(a) that it
does not apply to “family relationships and relationships which are similar in
effect”.
176Article 2 §2b of Directive 2004/38 provides that “the partner with whom the
Union citizen has contracted a registered partnership on the basis of the
legislation of a Member State...” must be considered a family member but only
“if the legislation of the host Member State treats registered partnership as

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It therefore seems illusory or at least premature to expect much

from thorough cooperation between States in the form of a new
international instrument.177 Even if one were to focus on adaptation
of existing instruments so that they could apply to same-sex
relationships, it is unlikely that much support could be found.

What is left if one excludes international solutions? What remains is

work on the national rules dealing with same-sex relationships.
Much can be done at this level, even taking into account the
probable resistance of some States. A first recommendation is
certainly that States should not hesitate to act. While it is
understandable that some countries hesitated to adopt specific
conflict of law rules in a first stage, when same-sex partnerships and
marriages were still fairly new,178 such a timidity has no justification
anymore. Experience has indeed shown that the absence of conflict
of law rules brings about serious difficulties. The difficulties and
possibilities of conflict of law rules in the field of same-sex
relationships have been well explored. Legislators cannot therefore
hide behind the novelty of the questions to refuse to legislate.
Certainly in countries where same-sex relationships enjoy some
form of legal recognition, work should be undertaken to offer a
conflict of laws framework for such relationships. In other countries,
the basic question should be addressed whether and to what extent

equivalent to marriage and in accordance with the conditions laid down in the
relevant legislation of the host Member State” - excluding partnerships
registered outside the EU. Directive 2003/86 is even more timid since it only
provides family reunion for the “spouse” (as defined in art. 1§ 1a) and leaves
the right to family reunion for the unmarried partner to the legislation of
Member State (art. 4 § 3). For an analysis of Regulation 2004/38 and 2003/86,
see M. BELL, “Holding Back the Tide? Cross-Border Recognition of Same-Sex
Partnerships within the European Union”, European Review of Private Law
2004, vol. 12(6), pp. 613-632 and more recently, PH. GÉRARD and F. PARREIN,
“Seksuele geaardheid: een begrip in het Europese en Belgische
vreemdelingenrecht?”, T. Vreemd., 2009, pp. 291-306. The same hesitation can
be seen in the caveat made in Article 9 of the European Charter of
Fundamental Rights whose article 9 only protects to the right to family life “in
accordance with the national laws governing the exercise of these rights”.
177 One may add that the GEDIP never reached an agreement on the subject –
see the meeting reports of the meetings held starting in 1999 in Oslo, available
at www.gedip-egpil.eu/gedip_reunions.html.
178As happened in France and in Belgium. See the fact that French legislator did
not intervene when modernizing the pacs in 2006 : the act of 23 June 2006
modified the PAC's. No specific provision on the cross-border aspect was
included, even though a report had suggested to subject the pac's to the lex
loci registrationis (see F. GRANET-LAMBRECHTS, “Trente-deux propositions pour une
révision de la loi du 15 novembre 1999 relative au pacs”, Dr. famille, 2005, 11
ff.).

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foreign same-sex relationships deserve recognition.179

If one considers the countries where same-sex relationships have

received some form of legal recognition – which are much more
likely to act than States where such relationships are left 'outside
the law' -, States are well advised no to limit themselves to one
general rule when considering how same-sex relationships should
be handled in the conflict of laws. As with different sex relationships,
there are many different aspects arising out of marriages and
partnerships. If anything, the comparative overview has shown that
these aspects may call for a specific treatment. Without going as far
as the Dutch example,180 preference should be given to a system
where access to a legal status and effects of the status are
governed by separate rules. When looking at the consequences of a
long term relationship, one should not forget that such a
relationship may have an impact on many different subjects. While
it may not be appropriate to attempt to devise a rule for all possible
questions – take the vexed question of whether partners may
conclude gifts 181 - there is ample room to consider adopting a
system combining a general rule with specific rules dealing with
particular issues, such as divorce or alimony.

If work is made of specific conflict of laws rules dealing with same-

sex relationship, a first question which arises is whether to go for a
unitary system or to adopt different rules for different types of
same-sex relationships. Some countries have adopted a broad
approach, treating identically all same-sex relationships. This is the
case in England and Germany. In a limited number of countries, a
distinction is made according to the nature of the same-sex
relationship. The latter approach may be justified in view of the
differences which still exist between same-sex partnerships under
national laws. One may think of the divide between partnerships
closely modeled on marriage and partnerships which still remain a
pale copy thereof. For the latter category, it is more difficult to
accept that access to the partnership is subject to another rule than

179It cannot be excluded that in some countries, a radical position could be

adopted, which denies any effect to such foreign same-sex relationships even if
the partners are both foreigners. This could e.g. be the case in Hungary. It is,
however, submitted, that such position will be exceptional. Further, even a
blatant refusal to recognize same-sex relationships is better than uncertainty
over the fate of such relationships.
180Which probably boasts the most elaborate collection of conflict of law rules
dealing with same-sex relationships. Such a sophisticated system may prove
impossible to achieve in countries where same-sex relationships are only
reluctantly accepted.
181See the observations of H. PEROZ, “La loi applicable aux partenariats
enregistrés”, J.D.I., 2010, vol. 137, (399) at p. 407, No 28.

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the consequences of the partnership.182 The obvious difficulty when

adopting a fragmentary approach is to fine tune the dividing line
between the two categories. Belgium and the Netherlands, which
have both chosen to reserve a different treatment to same-sex
marriages and partnerships, have encountered difficulties when
dealing with this question. The criteria retained in Art. 2(5) of the
Dutch WCP are broadly similar to those of Article 58 of the Belgian
Code of Private International Law. In both countries, the test
retained has sometimes proven difficult to apply.183 184

If one focuses on partnerships, the next question is whether to stay

true to the application of the law of the country of origin, i.e. the lex
loci registrationis, which is the current standard. Certainly, in the
early days of same-sex partnerships, this solution seemed the only
one acceptable given the limited number of countries where such
relationship was recognized.185 The rapid spread of this form of
relationship has, however, greatly reduced the problem. It is
therefore useful to enquire whether application of the rules crafted
for different sex marriages is warranted. Given the evolution of
substantive law in many countries, it is certainly more realistic today
to expect an alignment, albeit limited, on conflict of laws rules
crafted for different sex relationships. One may for example wonder
whether it is necessary to have specific rules limiting access to
same-sex marriages or partnerships, different from those in force for
classic marriage. The threat of marriage or registration tourism, if it
ever was convincing, has lost much of its credibility in view of the
wider acceptance of same-sex relationships in a greater number of
countries. Hence, rules limiting access specifically for partnerships
could be disposed of. Similarly, when looking at termination of

182As noted by Bucher (A. BUCHER, (fn. 55), at p.187, § 521).

183In Belgium, the circular letter issued by the Minister of Justice in May 2007 has
given rise to one difficulty in relation to the Dutch same-sex partnership.
According to the circular letter, a registered partnership should be recognized
as marriage in Belgium if it sufficiently approximates marriage. Such
equivalence is, however, denied for the Dutch same-sex partnership, as Dutch
same-sex partners may also opt for marriage. The result is that two same-sex
spouses married in the Netherlands, will be, subject to the rule drafted for
partnership and not to the conflict-of-laws rules covering marriage. As a
consequence, when one inquires which law applies to the effects of such
relationship, application will be made of Dutch law and not of Belgian law as
would be the case for other marriages (under Art. 48 of the Code).
184See also difficulty in France where the recently adopted rule (art. 515-7-1)
does not define the partnerships covered. Hence a question has arisen as to
whether the rule may be applied to same sex marriages. Peroz raises the
question without giving an answer : H. PEROZ, “La loi applicable aux partenariats
enregistrés”, J.D.I., 2010, vol. 137, (399) at p. 402, No 11.
185This is in fact the main argument used by Devers to justify application of the
lex loci registrationis, see A. DEVERS, (fn. 3), at pp. 201-206, §§ 319-329.

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same-sex relations, it may probably be acceptable today to modify

the safety provisions adopted when very few countries gave legal
effects to same-sex relationships, and which provided an
unconditional forum for dissolution to all those couples who had
registered their partnerships in the forum. 186 As has been noted, the
fact that more and more countries have introduced a form of
registered partnership means that one could limit the application of
this safety forum to those partners who have shown that they are
unable to dissolve their relationships outside the forum.187

Is it realistic to expect a further alignment on rules crafted for

'classic' marriages, both as far as jurisdiction and applicable law are
concerned? This would satisfy those commentators who have never
warmed up to the widespread application of the lex loci
registrationis – wich has been called “militant”. 188 Although the
Swiss example shows that a country which has resisted opening
marriage to same-sex partners, has nonetheless adopted conflict-of-
laws rules drawing in large part from those applicable to marriage,189
it is probably illusory to think that States will adopt conflict rules
which are identical or even broadly similar to conflict rules used for
'traditional' marriages.190

A move towards rules more in line with those applicable for different
sex relationships would indeed face both technical and political
obstacles. On the technical side, experience has shown that these
rules would not be viable without additional nuances and
exceptions. When dealing with access to partnership, one would
need to introduce nuance to the strict application of national law of
the partners (or the law of the domicile) for fear of limiting too
fiercely access to partnership. Likewise, the rule dealing with the
consequences of a same-sex partnership would need to include a

186As is the case in the Netherlands. See Art. 4(4) of the Dutch Code of Civil
Procedure, which provides that “Met betrekking tot het geregistreerd
partnerschap zijn het eerste tot en met het derde lid van overeenkomstige
toepassing, met dien verstande dat de Nederlandse rechter steeds
rechtsmacht heeft indien het geregistreerd partnerschap in Nederland is
aangegaan”.
187The residuary forum would be downgraded to a 'forum necessitatis', as has
been suggested by IAN CURRY-SUMNER (“Private International Law Aspects of
Homosexual Couples : the Netherlands Report”, E.J.C.L., vol. 11.1 (2007) at p.
17.
188See e.g. G. GOLDSTEIN, (fn. 3), at p. 266 : “Ce rattachement exorbitant découle
donc franchement d'une politique orientée et militante”.
189See the Article 65a to d of the Swiss Private International Law Act of 1987, as
amended.
190Some commentators have advocated such a move, see e.g. G.-R. DE GROOT,
“Private International Law Aspects Relating to Homosexual Couples”, EJCL, vol.
11.3 (2007) at p. 16.

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 Published in Legal Recognition of Same-Sex Relationships in Europe (Intersentia, 2012)

mechanism to deal with the case of where applicable law does not
recognize partnership.

Contemporary private international law provides tried and tested

mechanisms which offer solutions for these problems. The issue of
the 'unworkable' primary rule which could affect the rule dealing
with the consequences of a same-sex partnership could easily be
solved by adopting a sophisticated rule based on the so-called
'Kegel'sche Leiter'. One could contemplate a provision using as
primary connecting factor the law of the habitual residence of the
partners and the law of the common nationality as a subsidiary
connecting factor. The law of the state of registration could be
applied if both the law of the common residence and of the common
nationality prove unsatisfactory because they do not make any
allowance for same-sex partnership.191 This could at least in part
obviate the need for the technique of 'adaptation', which requires to
examine whether there exists an 'equivalent' institution in the law
declared applicable.

If the adoption of these nuances to the conflict-of-laws rules seems

too complex, one could also contemplate a mixed system, whereby
access to the partnership would remain subject to the lex loci
registrationis, while the consequences would be subject to a
complex rule including fall back provisions dealing with cases where
the law declared applicable does not know the partnership or
marriage.

While technical solutions are available to deal with the difficulties

which would arise if States were to decide to abandon the lex loci
registrationis,192 such a move remains difficult to contemplate for

191In the words of Jessurun d'Oliveira, the lex loci registrationis would be used
“comme voiture-balai” : H.U. JESSURUN D'OLIVEIRA, (fn. 36), at p. 95.
192An additional technique worth considering is the mechanism of renvoi : this is
particularly relevant since the conflict of laws rules adopted by States vary
widely. Renvoi would help promote decisional harmony. Indeed, the application
of the lex loci registrationis principle as a recognition rule does not necessarily
allow a smooth recognition. The reference to the law of the country of origin
may indeed, as is the case in Belgium or France, be understood as a mere
reference to the substantive provisions of the law of origin, without any
possibility to take into account the conflict of laws provisions (in France, art.
515-7-1 refers to the “dispositions matérielles” of the law of the country where
the relationship was registered). This could possibly lead to a quirk in the
recognition process. Take the example of two partners, one of whom possess
the Belgian nationality, who have registered their partnership in Switzerland.
According to Art. 65c-2 of the Swiss Act, these partners have elected to submit
their partnership to Belgian law. Once the partners move to Belgium, their
partnership will be deemed to be governed by Swiss law, even though they had
made a clear choice for Belgian law. This problem is avoided in the

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 Published in Legal Recognition of Same-Sex Relationships in Europe (Intersentia, 2012)

another reason : bringing same-sex relationships closer to different

sex relationships would 'promote' same-sex partnerships to quasi-
equivalent of marriage. The alternative to the lex loci registrationis
would indeed bring the conflict of laws treatment of same-sex
relationships much more in line with the rules applicable to other
forms of family relationships and, primarily, marriage. The lex loci
registrationis system on the other hand offers the advantage of
keeping same-sex partnerships at a larger distance from different
sex relationships.

That a further alignment on rules crafted for 'classic' marriages,

both as far as jurisdiction and applicable law are concerned,
appears, at this stage, out of reach, is evidenced by the fact that the
question whether a marriage should be considered a marriage for
private international law purposes when the two spouses are of the
same sex is still highly debated in some countries. 193 It is true that it
does not seem coherent to accept in general that concepts of
private international law must be interpreted broadly and in
particular that the category of marriage also includes foreign
marriages different from the local ones - e.g. marriages celebrated
before a religious authority or polygamous marriage – and to deny
at the same time that a same-sex marriage should be seen as a
marriage. However, practice has shown a strong resistance to this
type of argument. Identical treatment of same-sex and different-sex
relationships for private international law purposes is therefore far
away. One should therefore not be surprised that the comparative
overview reveals that most countries have kept their first generation
rules, at least for partnerships, with their insistence on application
of lex loci registrationis.194

All in all, there is certainly room for evolution of the legal framework
applicable to same-sex relationships. While the impetus for such an
evolution will probably be given by a greater convergence of the
substantive law framework,195 States should resist as far as possible

Netherlands, which has made a clear choice to allow renvoi (See in particular
Art. 5(2) (for the personal relationships) and Art. 7(2) (for the assets) Wet
Conflictenrecht Geregistreerd Partnerschap).
193Such as France Compare e.g. Fulchiron (who denies the existence of
equivalence - H. FULCHIRON, (fn. 26), at p.1254) and P. CALLÉ ((fn. 31), at p. 1663),
who argues that same-sex marriages should be treated as such. M. Callé rightly
notes that this would not entail recognition of all foreign marriages or of all
effects arising out of such marriages.
194This has somewhat reduced the recognition problem. As noted, if all States
applied the lex loci registrationis, this would allow a much smoother
recognition (see B. WEISS-GOUT et M.-L. NIBOYET-HOEGY, (fn. 27), at p. 13).
195.This may occur quite naturally. When France modified the legal regime for its
partnership in 2006 and moved (albeit slightly) in the direction of making it

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the temptation to model their conflict-of-laws rules too closely on

their substantive law and the policy underlying it. The controversy
which continues to surround the application of Art. 17b EGBGB to
different sex partnerships illustrates the perils of linking too closely
conflict of law rules to substantive law provisions.196

* * *

stronger, this already solved a number of problems : by making its PAC's more
'institutional', it was made clear that France would be less tempted to use its
public policy exception to avoid recognizing foreign partnerships which go
further See in this sense G. KESSLER, “Reconnaissance des partenariats étrangers
: les enseignements de la loi du 23 juin 2006”, AJ Famille, 2007/1, (23), at p.
24-25.
196It has been argued that Art. 17b of the EGBGB only considers partnerships
which are similar to the one introduced under German law. As a consequence,
registered partnerships between two persons of different sex would not be
subject to the special rule introduced in Article 17b (see to that effect, D.
MARTINY, (fn. 103), at pp. 5-6). This view has, however, been challenged. See e.g.
R. WAGNER, “Das neue Internationale Privat- und Verfahrensrecht zur
eingetragenen Lebenspartnerschaft”, IPRax, 2001, (281) at p. 292 (arguing
that Art. 17b should be applied to different-sex partnerships). Compare with
KARSTEN THORN, (fn. 140), at pp. 160-161 (who argues that it may be possible to
apply Art. 17b “by analogy” to different-sex partnerships). Some doubts have
even been expressed concerning the possibility to apply Article 17b to same-
sex partnerships whose legal consequences do not go as far as the comparable
German institution because they do not create a personal, family law
commitment between the partners. Compare with the view accepted in Swiss
law, where article 65a ff are deemed to be applicable to different-sex
partnerships (A. BUCHER, (fn. 55) at p.186, § 517 and p. 190, § 533).

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