When is a Partner not a Partner? Conceptualisations of ‘Family’ in EU free movement Law

Abstract

This paper considers the definitions of spouse, civil partner and partner in European Union free movement of persons law in order to question the EU’s heterocentric approach to defining ‘family’ in this context. It argues that the terms ‘spouse’ should include same sex married partners to ensure there is no discrimination on the grounds of sexual orientation. It further highlights the problems created by basing free movement rights of civil partners on host state recognition of such partnerships. This approach allows Member States to discriminate on the grounds of sexual orientation and is therefore not compatible with EU equality law in others areas. The position of unmarried or unregistered partners is also considered. In particular the paper examines the requirement of a duly attested durable relationship and its impact on same-sex partners wishing to move from one Member State to another. The paper argues that it is time to reconsider the law in this area and bring it in line with the EU’s commitment to eliminate discrimination on several grounds including sexual orientation.