What do you do when they don't say "I do?" Cross-border regulation for alternative spousal relationships.

• Author: Shakargy, Sharon

Abstract

Marriage is a local arrangement with international effects. Throughout the Western world, a marriage recognized as valid by the parties' home country is usually considered valid and binding in any other country. This recognition carries substantial benefits. In sharp contrast, unwed couples and some married couples, namely same-sex couples, are denied these benefits due to lack of (sufficient) inter-state and international recognition of their relationships, making their relationships unstable at best. This Article discusses the cross-border recognition of such relationships--or lack thereof--and its effects, and it suggests a way to better the situation using private law tools, thus avoiding much of the public debate on the matter.

TABLE OF CONTENTS I. INTRODUCTION II. ASRS AND THEIR IMPORTANCE A. Defining ASRs: Some Alternatives for the Regulation of ASRs 1. "Marriage, But" 2. "Marriage Like" 3. "Marriage Alternative" B. The Theoretical Relevance of Alternative Spousal Relationships C. The Practical Relevance of Alternative Spousal Relationships III. THE PROBLEM OF ALTERNATIVE SPOUSAL RELATIONSHIPS ON THE MOVE A. What is on the Move? 1. Status 2. Durability 3. Property-Related (and Other) Rights 4. Public Rights B. Cross-Border Protection of Marriage C. Cross-Border Protection of ASRs 1. The Limited Mobility of Some ASRs: Existing Solutions IV. SUGGESTED SOLUTION A. ASRs Choice of Law Challenges 1. "Translation" 2. Characterization B. Applicable Law of an ASR: Which is the Proper Law of That Contract? 1. In Cases Where there is an Actual Contract 2. In Cases Where the Contract is Only Implied (at Best) C. Is Public Policy an Inevitable Barrier? V. APPLICATION: THE SUGGESTED SOLUTION MEETS LOCAL POLICIES A. Countries Supporting or Not Objecting to ASRs B. Countries Objecting to Particular ASRs or Aspects Thereof 1. Case-Specific Objections 2. Group-Based Objections VI. CONCLUSION I. Introduction

Imagine case 1: Odysseus married Penelope in their homeland Greece, in a marriage valid under Greek law. Later, they moved to Troy. According to the norm embodied in the conflict of laws rules regarding marriage, Troy would recognize the validity of this marriage regardless of the terms of marriage in Trojan law. That is because the ceremony is valid according to the law of the country where it was preformed, and the parties are considered to have marital capacity according to the law of their home country. The choice of law rules regarding this issue, though structured for the most part by each country independently, are similar throughout the world. Each states the same basic norm that when a couple that is eligible to marry marries in a ceremony valid in the country where the marriage is preformed, other countries should recognize this marriage as valid. (1) This would be the case even if the marriage was performed in a manner unacceptable in Trojan law or between parties unfit to marry according to that law, out of respect for Greece's autonomy and control over its people. So, wherever Odysseus may go, his marriage to Penelope remains valid.

Now imagine a few alternative stories: Max and Helena are registered as civil partners in the Netherlands. They move to Germany in order to take care of Max's sick mother. While in Germany they break up. Helena attempts to formally resolve their relationship only to find out that under German law civil partnerships are only available to same-sex couples, thus their relationship is not recognized, leaving Max free to go without any formal closure. Similarly, Arthur and Oliver, registered as civil partners in England, follow their dream and move to Greece. While in Greece, their relationship deteriorates to the point that Arthur moves out, taking all the money from the joint bank account and moving it to his own Greek bank account, leaving Oliver stranded. Oliver sues, asking that the bank be ordered to freeze the money based on it being "marital" property only to find out that their relationship, formal and valid in England, would not be recognized in Greece, which bars same-sex couples from entering civil partnerships. Lastly, Sean and Fiona are cohabiting under Irish law. While en route to vacation in New Zealand their airplane crashes in Austria. They both survive, but Fiona is badly injured. Sean tries to inform the doctors of Fiona's medical care preferences but is told that under Austrian law he is considered a stranger, as that law does not recognize their relationship, and the doctors would be deciding for Fiona until someone in her immediate family could be reached.

In all those cases, the country of destination would, at best, reevaluate the relationship and any rights derived from it according to its domestic law. All these couples would be unable to enjoy the legal consequences of their relationships that are given to them according to the law of their country of origin. In some such cases, spouses may be fully relieved of their spousal duties and stripped of their rights by crossing a border, even though their personal law remain unchanged.

The difference between the cross-border regulation of marriages and alternative spousal relationships (ASRs) is a result of the fact that there are not--and never have been--any systematic conflicts rules regarding ASRs. Such relationships were previously unknown to law or banned by it. Now common and allowed (for the most part), those relationships remain unregulated on the international level. Many countries simply do not have any rules regarding the treatment of such relationships. Those that do, offer insufficient solutions, particularly due to the massive diversity of ASRs. This Article aims to better this situation by suggesting an appropriate cross-border regulation mechanism for such relationships in the Western world. (2)

This Article starts with defining ASRs and their importance. Part II of this Article sets the context of the discussion by describing three categories of ASRs, namely "marriage, but," "marriage like," and "marriage alternative." The part discusses the social importance of ASRs, which justifies an effort for bettering the legal protection given to these relationships. Part III of this Article stresses the problem of ASRs in transition. It discusses the different aspects of ASRs and their current cross-border protection. This part further demonstrates the conceptual and practical problem by comparing ASRs to the paradigmatic spousal relationship, marriage, and the status-based thinking guiding its cross-border regulation. It explains why a status-solution would not be appropriate for ASRs. This Article then moves to suggesting a solution. Part IV lays out the challenges of ASR choice of law, suggesting contractual thinking as an appropriate solution for the problem. Lastly, in Part V this solution is applied to different cases of ASRs and to states with different approaches as a way to explore the scope of the proposed solution.

2. ASRs and Their Importance

   1. Defining ASRs: Some Alternatives for the Regulation of ASRs

      The twentieth century has brought with it many changes in the way families are regulated: the concept of family has gained flexibility, containing structures once excluded, such as cohabiting unwed couples and same-sex couples. (3) Legal systems have tried to address this situation by creating all sorts of regulating structures for such relationships. (4) These structures, though created by different legal systems, each addressing its own legal issues and social needs, can all be loosely clustered into groups. For the purposes of the discussion in this Article, it is suggested to think of these relationships as each belonging to one of three general types. The first, "marriage, but," refers mainly (5) to same-sex couples getting legally and formally married in the same manner and procedure as heterosexual couples but producing a different outcome when it comes to mobility, as the following discussion will demonstrate. The second type, "marriage-like," refers to spouses regulating their affairs through a formal legal procedure resulting in relationships similar, but not identical, to marriage, both in name and in outcomes. The third type could be described as a "marriage alternative." This type of relationship, though legally binding and sometimes entailing outcomes very similar to those of marriage, lacks the clear formal procedure for creation and dissolution that the other types have. Spouses in such relationships sometimes actively and knowingly (if not intentionally) avoid the formalities of marriage and marriage-like relationships. To better explain the different mechanisms, examples are in order.

      1. "Marriage, But"

         The best known "marriage, but" arrangement is that of same-sex marriage in the United States. Some states in the United States allow couples of the same sex to marry, considering the access to marriage a matter of civil rights and its denial problematic on the grounds of equality. (6) Other states strongly oppose such marriages, considering them an abomination both to God and to the concept of marriage. (7) These marriages, when contracted in a state allowing them, are created in the same manner as all other marriages in the state and are considered as valid as any other marriage. The Federal legislation has its own stand on the recognition of marriage, both as a legislator and as a coordinating mechanism between the states. Until recently, the Federal Defense of Marriage Act (DOMA) (8) stated that as far as the Federal government is concerned, "the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." (9) So, marriage was not always simply marriage: some marriages entered into according to state legislation and valid in that state would not receive the Federal recognition and benefits given to other marriages, solely...