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Obstacles to the Free Movement of Rainbow Families in the EU: study results

Why this study?

There are still many problems for rainbow families in the EU when they want to exercise their free movement rights. When they cross a border, same-sex couples seem to not exist anymore, children lose their legal ties to one or all of their parents.

Fortunately, a legislative proposal will be elaborated but the EU Commission. The study shows some evidence of the obstacles and recommends propositions to the EU institutions and the Member States, why and how they could push for better recognition of rainbow families.

The EU institutions and the Member States have to respect the EU law which is to respect the fundamental rights of all members of rainbow families. All families have the right to move freely in the EU, but unclear when it comes to these families. In fact, in 2018, the EU Court of Justice ruled in the Coman case that same-sex marriages should be recognized in every Member State.

Results of the questionnaire

Some didn't reply like Belgium, Malta, Luxembourg, and Denmark but they already have marriage equality.

Estonia and Croatia recognize it even if they don't in their own country.

Other countries recognize members of the family as partners which means it doesn't necessarily include parental rights. Czechia and Hungary state that the legal provisions are “almost identical”.

6 countries don't recognize same-sex marriages and civil unions but they do for the purpose of residence permit, according to Latvia, but it's not clear. Also, same-sex partners aren't recognized for any other purposes of national law like tax benefits.

Romania didn't even apply the Coman yet and it has been 2 years since the decision.

There are categories :

- Marriage and civil partnerships for their citizens: Austria, The Netherlands, France and Spain. Surprisingly, France would not issue residence permits.

- Countries where existing civil union laws were repealed, and marriage equality was introduced: Germany, Finland, Ireland and Sweden.

Ireland doesn’t recognize foreign civil partnerships since 16 May 2016 due to the marriage equality referendum.

- Portugal, where civil unions didn’t exist but in 2016, the country implemented a marriage equality law. It's for civil partnerships, public registration is not required or possible. So Portugal has marriage equality, same-sex couples from abroad are treated as "partners in a durable relationship".

- Countries which provide for any kind of registered partnerships for same-sex couples: Croatia, Cyprus, Greece, Italia, Cyprus, Czechia, Estonia, Hungary and Slovenia. No problem expected but they didn't answer the study.

- Countries without recognition of same-sex couples: Poland, Bulgaria, Latvia, Lithuania, Slovakia and Romania. They don't recognize partners from abroad for a residence permit.

Slovakia treats civil unions as durable relationships and Lithuania offers temporary residence permits.

There is a lack of clarity as to the exact requirements that EU law imposes on Member States.

Since 2018, NELFA is collecting cases of LGBTIQ+ parents who face difficulties in cross-border situations. In 2020, a range of families have sent petitions to the European Parliament. The obstacles come from a non-recognition of birth certificates stating two parents of the same sex. In some cases, the non-recognition of civil status causes problems for the continuity of familial ties. Other struggles come from specific regulations on assisted reproductive techniques or non-existing rules.

Unfortunately, no explicit or implicit provision or reference is made to rainbow families in any EU law provision or instrument.

To summarise the study :

1. Non-recognition of the Coman judgment by Romania: infringement.

2. Annulment of the phrase “if the legislation of the host Member State treats registered

partnerships as equivalent to marriage”

3. Support of strategic litigation to cover more rights/benefits than a residence permit

4. Insistence on the adoption of the Non-Discrimination Directive

5. Legislation should be proposed using the free movement of persons legal bases requiring all Member States to recognize :

- For the purposes of national law, marriage or registered partnership formed in another Member State, in all situations in which the spouses or the registered partners would have a right to equal treatment under the case-law.

- For all purposes of national law the adults mentioned in a birth certificate issued in another Member State as the legal parents of the child mentioned in that birth certificate, regardless of the sexes or the marital status of the adults.

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