Family Law, Health Care / Medicine, Kids

Government Tells Gay Couple To (Fraudulently) Divorce If They Want To Keep Legal Rights To Their Son

This is like an awful exam hypothetical -- except a real couple's parental rights are at stake.

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Talk about a bureaucratic nightmare! Apparently, European couples are being told they need to divorce and marry again if they want their relationship legally recognized in other countries. I do love a good wedding, but this seems ridiculous.

Leandro Barreto and François Souyri are a married couple (both are men) and parents to an adopted seven-year-old son. They currently reside in the UK, but the couple has been looking to move back to France. Before making the jump, they investigated whether there would be any issues in France with the legal recognition of their parental rights to their adopted son. That’s when they learned there was a problem. And the only solution France could offer was to suggest the couple divorce. And then … remarry. Good times.

Your Marriage Certificate Is No Good Here. Barreto and Souyri entered into a civil partnership in the UK in 2008, as same-sex marriage was not an option in the UK at that time. Five years later, when the UK passed the Marriage (Same Sex Couples) Act 2013, they were able to “convert” their civil union into a marriage. Under the new law, they received a marriage certificate that backdated to the date of their civil partnership. The problem with the “conversion” was that — due to the legally fraught backdating and lack of witnesses — the “marriage” did not meet the requirements of a marriage under French law. The French government refused to recognize Barreto and Souyri as a married couple. Unfortunately, that also called into question the legal status of their parentage of their son.

No problem. Barreto and Souyri figured they would just marry again in France. A great excuse for a party, right? Not so fast. French officials pointed out to them that they could not legally marry in France if they were considered legally married by another country. Wait? What? That’s when the official suggested that they divorce in the UK and then get married in France.

A Sham Divorce? Barreto points out, ironically, that they cannot legally get divorced in the UK. Divorce in the UK requires a legitimate reason — and may require them to live apart for years. That’s not something either of them are willing to do to their son. I’ve heard of sham marriages, but sham divorces are a whole new ballgame.

PinkNews reports that Barreto and Souyri are not alone in this legal predicament. At least a dozen other couples are stuck in the same legal cracks. UK Solicitor Colin Rogerson notes that “it’s quite frankly bizarre that we don’t yet have any EU laws dealing with recognition of marriage between member states. There are real difficulties for this couple under English law. Even if they were willing to get a divorce, they would need to show an irretrievable break down of marriage, which they clearly can’t legitimately do. Unfortunately, this case isn’t isolated even between two countries that allow same-sex marriage, and I fear will become more prevalent with the uncertainty for EU nationals living in the UK post-Brexit.”

When In Doubt, Sue. Barreto and Souyri have brought a legal suit against France in order to find a solution. They are hopeful for a hearing in November, but the French government must first respond for the case to move forward. And to complicate an already confusing situation, Brexit is on the horizon, leaving even more uncertainty as to their legal relationship to each other, their son, and the country they live in.

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PinkNews also reports that French MP Alexandre Holroyd is sympathetic to the couple, stating that “to go down that rabbit hole, when you’re dealing with an administration that is [unable] to deliver, and you go from institution to institution to institution, and all you get is a letter saying they can’t do anything — it must be immensely frustrating.”

Hopefully, this legal vortex is only a temporary glitch in the system. A legal solution — even if only a mere patch for couples similarly situated —  should be found. And fast. If for no other reason, for the children.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.

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