Marriages across borders within the European Union

Private international law vs. Mutual recognition perspectives

Abstract

The present paper tackles the issue of the recognition of cross-border marriages and their effects within the European Union. The current praxis allows interesting remarks on the cross-border effects of foreign marriages and their recognition in the perspective of the rights to free movement and to family life. In this framework, the paper scrutinizes a potential definition of the marriage, whether according to EU free movement law or to European human rights law. Due to the lack of a commonly accepted definition, it tests the classic approach to the circulation of foreign documents and certificates, i.e. the conflict of laws perspective. Leading on, it analyses the more fashionable method of the mutual recognition of situations created abroad, as modelled by some States and tested in some cases by the European Courts, too. Despite important advantages, this method does not seem easily accepted for the circulation of the status of spouse(s) and of the institution of marriage. With the aim to push towards enhanced free movement rights and strengthened human rights, the present paper offers some final remarks regarding the legal value of (international) family law in the framework of a social Constitution of the EU.