The Coman – Hamilton case

5. 2010 Rome IMG_0001

Relu Adrian Coman, and his husband, American citizen Robert Clabourn Hamilon, have sued the Romanian state for refusing to recognise their marriage, which took place in 2010 in Brussels. Not only that, but the Romanian authorities are also adamant in refusing to accept that the gay couple are indeed forming a family. Without this formal recognition, the couple cannot live together in Romania, as residency rights are only granted to family members. Currently, Clai Hamilton cannot legally live in Romania for periods longer than 3 months, although he is married to a Romanian citizen. Despite their marriage being legal, it is not acknowledged by the Romanian state. Should Adrian Coman have married a woman, and not a man, these problems would never have existed.

ACCEPT and the Anti-Discrimination Coalition are supporting the couple in their efforts to protect their right to family life as well as the right to free movement. Human rights lawyer Iustina Ionescu has been representing the two in front of the Court since 2013.

The Romanian Constitutional Court will rule on lawfulness of Art 227, points 2 and 4 of the Civil code, particularly as they apply to the Coman-Hamilton case. Hearings will take place on Wednesday, 20 July 2016, the same day when the Romanian Court will decide on the legality of the initialtive of the Coalition for Familiy, which is looking to redefine the family as a civil institution in the Romanian Constitution, doing so from a religious perspective.

The Romanian state, represented by the Imigration Office as well as by the Internal Affairs Ministry, is using the Romanian Civil Code as grounds for refusing to recognise  the effects of a marriage between two men, although this has legally taken place in Belgium and has effecively and legally created a family. However, irrespective of these policies, the Civil Code states that the right to family, even a same-sex one, needs to be respected in the context of asserting one’s right to free movement on the territory of the European Union.

The Romanian Civil Code, vague and contradictory, is preventing the Coman-Hamilton couple to exercise ther right to family life in Romania. This right is, however, guaranteed in Art. 26 of the Romanian Constitution and Art 8 of the European Convention on Human Rights.

„Recent jurisprudence from the European Court of Human Rights has decided in similar cases against Italy and Croatia that the states have an obligation to recognise same-sex couples who have been legally married or created a civil partership aboroad, or who are in de facto unions. This obligation is crucial, particularly in the Romanian legislative context, under which these couples have no means of making their relationship legal, nor do they have any legal protection. The Romanian Constitutional Court must now rule on whether these restrictions on recognising same-sex couples in the Civil Code are constitutional and uphold the human rights standards Romania has committed to,” said Iustina Ionescu.

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The story of the Coman-Hamilton family

The Coman-Hamilto family, Adrian and Clai, want to settle down in Romania, their home. Right now, the two suffer from the effect of the discriminatory and homophobic Romanian legislation, although their family is recognised both in the United States and in most European Uniion countries.  They met in the summer of 2002 in New York, and have been a couple ever since. „Our first date was in Central Park. I met Adrian while crossing the street, and noticed how handsome and dignified he was. We became practically inseparable. Our first date lasted for hours, and it was crystal clear we were going to see each other again,” Clai remembers.

 The two had been together for 8 years when they got married. „We only moved in together after three years, when we had got to know one another really well. I was, of course, worried that routine will take away some of the romance in our relationship. But we actually realised we enjoy the routine, and have still kept the romance in our couple. Our relationship has changed for the better, we have become much closer since we started sharing a home. Our friende have become our common friends, we have met each other’s families, we went on holidays with them, we went to University at the same time. I studied political science and did a Master’s in Human Rights, and he studied graphic design,” Adrian said.

 In 2009, Adrian had to leave New York on his own, to work in the European Parliament. Both Adrian and Clai had student loans to pay, as well as a mortgage, and this was taking place during the financial crisis. The long-disctance relationship wasn’t easy, particularly as both were working hard to built a career and to ensure they would one day live together again.

 „In 2010, when I asked Clai to marry me, I was already far away from him for a year. While having a long-distance relationship, I understood he is my life partner, for better or for worse. That time, we still couldn’t marry in New York, but, being a Belgian resident, we could get married in Belgium. He was very emotional about it, said „Yes” immediately, although on Skype, it was very romantic. Four months later, we were already married in Brussels.

However, with the unemployment rates increasing all over Europe, Adrian finished his contract with the European Parliament in 2012. He thus looked for a job in Belgium and in the US. He also considered Romania for a position, as he was missing his parents, his friends and his home country, but he would only move to any new location together with Clai. Adrian knew that spouses of EU citizens can automatically get residency in a new EU country when the family relocates.

In order to obtain Clai’s Romanian residency permit, Adrian had to go to the Romanian Consulate, where he needed their marriage certificate to be transcribed. „I remember the clerks talked privately about the matter, then a few minutes later they told me they could not transcribe my marriage certificate. In that moment all I felt was sad and humiliated, I left the Consulate holding a sheet of paper saying my family was not recognised by the Romanian authorities. No other person in the room would have received that answer. During my first interaction as a married man with the Romanian authorities, I understood that to them this didn’t matter, I didn’t matter, my marriage didn’t matter. My country’s refusal to accept me hurt really badly, on my way home I was so distraught that I got a fine because I forgot to validate my tram pass.”

From that moment on, Adrian and Clai started their fight with the Romanian authorities. They were supported by their families and by ACCEPT and the Anti-Discrimination Coalition. Iustina Ionescu has been their legal representative since 2013. Their next encounter with the authorities was with the Immigration Office, where they asked for the marriage to be recognised, under the freedom of movement, one of the four EU fundamental freedoms.

The Romanian courts took three years to reach a decision on which court has authority over the case. The 5th District Court in Bucharest, where the case was heard, referred to the Romanian Consitutional Court for the interpretation of the relevant article governing family law. While the law does not recognise same sex marriages concluded outside Romania, this should not, in theory, affect the freedom of movement of EU citizens. In practice however, the Romanian state does not recognise same-sex partners as legal spouses, not even in freedom of movement cases, such as the reunification of families.

 „For the Romanian state, our 14-year old relationship simply doesn’t exist, nothing of what we’ve done and built together is recognised here. Clai can’t get his residency permit, despite being my husband. As an American citizen, he can only visit as a tourist, or for business purposes. But when I grow older, I would like to move back to where I was born and where I grew up. I’d like to be able to do that with my family, with the man I love,” said Adrian.

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