LEGAL ISSUES IN CROSS-BORDER SAME-SEX DIVORCE DISPUTES AT EU LEVEL

In the regulations adopted in the area of divorce, the Council of the EU reiterates in the very first recital the Union's main objective, namely to maintain and develop an area of freedom, security and justice. This area must ensure the free movement of persons. Although the measures taken are of increased importance in EU family law and contribute to the achievement of this objective, the Brussels IIb and Rome III Regulations do not define the notion of „divorce”, leaving the interpretation of the concept to the CJEU. Some Member States have regulated same-sex marriages, while others have retained their traditional rules on different-sex marriages, while prohibiting same-sex marriages, and this is likely to create difficulties for EU citizens and national courts dealing with cross-border divorce applications, in particular in establishing international jurisdiction and in determining the applicable substantive law. National courts must therefore take a position on the recognition of the marriage legally conducted in a Member State in order to pronounce the divorce. In this article we aim to analyze the legal issues of cross-border same-sex divorce litigation in the EU, taking into account the present EU family law framework and the differences in the relevant national legislation of the member states. We will first present a brief history of EU steps to convince Member States to recognize same-sex marriages, then we will analyze the legal rules of interest to the subject of the article. Next, we will review the relevant CJEU practice and, finally, we will propose solutions to the identified challenges in order to ensure non-discriminatory treatment for same-sex couples seeking divorce, while respecting the national identity of Member States. This paper will not examine the social aspects of the problem of regulating same-sex marriages, but will focus strictly on the legal issues.