Same-sex marriages conducted in another country should be recognized in Estonia, justice chancellor Ülle Madise says. At the same time, there would need to be some sort of time-frame in which the couple should have lived in that country following their marriage, and that so-called 'marriage tourism' carried no requirement with it for the union to be recognized in Estonia.
Writing in response to a letter from Isamaa MP Siim Kiisler, Madise said that the outcome of a "yes" vote in a planned referendum asking whether marriage in Estonia should be defined legally as a union between a man and a woman, the chancellor noted that the Registered Partnership Act could not be repealed in that eventuality.
The Registered Partnership Act, sometimes referred to as the cohabitation act, provides some legal recognition for partnerships, both same-sex and opposite sex.
On the issue as to whether same-sex full marriages conducted in a country where the practice is on the statute book, Madise said that these should be recognized in Estonia even with a "yes" vote, but drew the line at this facilitating "marriage tourism".
This would mean that while same-sex couples moving to Estonia who had been married elsewhere should have their union legally recognized, a same-sex Estonian couple who traveled to another state simply to get married, then returned, would not receive the same treatment.
Madise cited precedents from the EU Court of Justice (ECJ) and the European Court of Human Rights (ECHR), which she said meant that the domestic Private International Law Act, which applies in cases where a legal relationship is connected with the law of more than one state, should be relevant.
At the same time, the situation for same-sex Estonian couples who sincerely moved to another country and got married, then later returned, may depend on time-frames, she said.
It would also depend on population register officials. If the latter thought that the couple had planned all along to live in the other country for the purpose of getting married, to return to Estonia at a later date, the marriage would be unlikely to be registered as such, she said.
At the same time, the couple could challenge this decision in court, the chancellor said.
Domestic precedent had it that sincerely-concluded marriages conducted abroad should be recognized if the couple then returned to Estonia, but again, the chancellor could not put a time-frame on how long the couple would have to have been resident in the other country.
Madise said that more precise time-frames could be legally defined in Estonia, but that basic EU principles could not be abandoned.
Editor: Andrew Whyte