The term "spouse" includes same-sex partners under European Union law, meaning that member states can not deny them residence rights even if gay marriage is illegal in that country, the legal advisor to the bloc's top court said Thursday.
The opinion, related to a case before the Court of Justice involving a Romanian man and his American husband, is not binding, but the court generally follows such advisories. Or what is same, if a European citizen marries someone outside EU, he/she has right to have his or her partner move with him or her to any of twenty-eight Member States, regardless of wher or not law of country recognizes homosexual marriage.
Wathelet maintains that European Union law defines "spouse" includes legal married partners of the same sex and makes no reference to member nations' definition of the word.
EU law [materials] permits the spouse of an EU citizen to obtain a residence permit for the EU member state where the spouse resides.
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But because Romania does not recognise same-sex marriage, Hamilton's bid for a residence permit to live there was refused.
Once the ECJ has made its decision, the case will return to Romanian court. While member states are free to provide for marriage between persons of the same sex in their domestic legal system or not, they must fulfil their obligations under the freedom of movement of European Union citizens.
The gay couple, alleging discrimination on the basis of sexual orientation, challenged the decision of Romanian authorities.
Romania decriminalized homosexuality in 2001 but prohibits marriage between people of the same sex, and does not recognize same-sex marriages carried out overseas.
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"Romanian citizens can not be divided into good and gay".
The Advocate General also notes that the concept of "spouse" is necessarily linked to family life, which is protected in an identical manner by the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights (ECHR). They would have been compelled to do so had Mr Coman's partner been of the opposite sex.
Basically, Wathelet's opinion lays the groundwork for a landmark LGBTQ rights victory that would affect Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
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