PARIS - If youre married in Holland, are you still married when you move to Austria? Not if its a homosexual union.
More than two years after the Netherlands became the first nation to permit same-sex “marriage,” Europe is mired in a confusing tangle of laws complicating legal and family issues for homosexual couples.
“Married” homosexuals in the Netherlands enjoy the same rights as their heterosexual counterparts, including custody of children, inheritance of property and hospital visitation rights should their partners fall ill.
Yet, as they move around within an enlarging European Union which will have 10 more nations after next year many find themselves losing some of those rights, even in member states that recognize same-sex unions.
Homosexual partners in the United States could have to deal with similar confusion if other states follow the example of Massachusetts, where the states highest court recently ruled that homosexual couples have the right to “marry.”
“There is a lot of legal uncertainty” in Europe, says Katherina Boele-Woelki, a professor of private international law at the University of Utrecht in the Netherlands, author of a new book on the legal recognition of same-sex “marriages” on the continent.
“All the countries introducing registered partnerships do not care about cross-border situations” she writes. “They do not introduce rules on what would happen to those going abroad or coming from abroad with a different legal status. And thats the problem of private international law.”
The Netherlands and Belgium are the only countries in the European Union where same-sex “marriage” is legal. However, about 10 other EU member states recognize same-sex partnerships with varying rights.
France, Germany and the Scandinavian countries allow forms of “registered partnerships,” and Britain recently enacted a law enabling homosexual couples to register in “civil partnerships.”
However, Miss Boele-Woelki says: “If you compare registered partnerships in the Netherlands, its different from registered partnerships in Germany. In Germany, you have less far-reaching legal consequences. And this causes more and more problems. What will happen to registered partners if they move from Holland to Germany? How would they be recognized?”
The European Union has never tried to establish a single set of guidelines for member nations.
“We dont have any competence on marriage, its entirely in the hands of the member states,” says Pietro Petrucci, spokesman for Justice and Home Affairs at the European Commission. “Each state is free to legalize same-sex partnerships the way its parliament prefers. So, if a Belgian homosexual couple moves to Austria, it is up to the court in Austria to apply entirely or partially or not at all, the Belgian law.”
Laws on adoption and child custody are similarly varied. In the Netherlands, homosexual couples are free to adopt, but foreign children cannot be subject to adoption. About 20,000 children there are being raised in such families where both partners share custody of the children.
In Belgium, however, homosexual couples are forbidden to adopt children. In a lesbian “marriage,” for example, the actual mother is considered the sole parent. If she dies, the surviving partner has no rights to the child.
Miss Boele-Woelki envisions even more complicated problems for Americans, who, unlike Europeans, are bound by the Defense of Marriage Act, which prohibits recognition of same-sex partnerships on a federal level.
“Like Europe, in the U.S., you have free movement of persons,” she says. “If you apply this rule, you are urged to recognize what will happen in other states. The fact that in Europe so many forms of same-sex registered partnerships, marriages and civil unions came into force is not a really good example of how we should deal with the problem at all. We should have come together to discuss and draft the rules and legislation in this field.”
Mr. Petrucci says the European Commission was unlikely to address the matter on a community-wide basis any time soon. “As far as homosexual marriages are concerned, there is little experience. The idea is to extend what we have been legislating to the widest possible area. So, when homosexual marriage becomes a common practice in the Union, we will extend the legislation.”
The European experience suggests that Americans who support a constitutional amendment barring same-sex “marriages” had best act quickly. “There is a tendency in the direction of more and more recognition of same-sex couple status,” says Miss Boele-Woelki. “If we talk within five years from now about the EU, major changes will take place.”
European opponents of same-sex “marriage” agree.
“When one country starts with it, you will see it opening for other countries as well,” says Menno de Bruyne, spokesman for the Reformed Political Party, a Christian party in the Netherlands that fought against the legalization of same-sex “marriage.”
“This is what we feared and this is what is happening. After Holland, we had Belgium, and now other countries are discussing it.”