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Recognition vs Non-Recognition: The Perils of Crossing State Lines for Same-Sex Couples

Lauren Clayton-Helm, Frances Hamilton

The rise of same-sex marriage across Europe calls for an investigation of the conflicts of law treatment of this new institution. This paper will firstly consider the England and Wales choice of law rules for both same-sex marriages and civil partnerships. The Civil Partnership Act 2004 clearly identifies the applicable law for civil partnerships. In contrast ambiguity surrounds the choice of law rule for the essential validity of same-sex marriages. It is possible for some same-sex relationships to fall through the net and fail to be recognised at all. This paper will explore this problem in order to identify a choice of law rule that could be applied to both relationships.Ultimately, however, it is important that this issue is tackled at a European Union level. With the high levels of migration occurring in the EU in the modern day, the problems of uncertainty and indeed limping marriages can only be resolved by the implementation of an EU directive. This would require all Member States to apply the same choice of law rule, and thus drawing the same conclusion on validity. Certainty as to whether a marriage executed in another Member State will be recognised should in this circumstance trump Member States own domestic concerns about recognition of same-sex marriage.

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