Same-sex Marriage in Spain - Residency Issues

Residency Issues

Shortly after the law was passed, questions arose about the legal status of marriage to non-Spaniards after a Spaniard and an Indian national living in Catalonia were denied a marriage license on the grounds that India did not permit same-sex marriage. However, on 22 July another judge in Catalonia married a Spanish woman and her Argentinian national partner (the first same-sex marriage between women in Spain). This judge disagreed with his colleague's decision and gave preference to the right of marriage over Argentinian law at the time not allowing same-sex marriage.

On 27 July, the Junta de Fiscales de Sala – a body within the Public Prosecutor's Corp that advises the Minister of Justice's office – issued an opinion that lesbian, gay, bisexual, and transgender (LGBT) Spaniards can marry foreigners from countries that do not permit same-sex marriage. This marriage would be valid according to Spanish law, but did not imply automatic validity according to the foreigner's national law. A ruling published in the Official State Bulletin stated:

According to the instructions from the Ministry of Justice (Dirección General de Registros y Notariado), Spanish Consulates abroad may carry out the preliminary paperwork for a same-sex marriage. At least one of the marrying partners must be a Spanish citizen, residing in the Consular demarcation. However, the marriage itself can only take place at the Consulate if local laws recognize same-sex marriages (Spanish consulates in Boston, Brussels, The Hague, Amsterdam, Oslo, Toronto, Montreal, Ottawa, Cape Town, Pretoria, Stockholm, Washington, D.C., Mexico City, Lisbon, Porto, Reykjavík, Buenos Aires, Rosario, Córdoba and Mendoza, as of August 2010). In all other cases, the partners must marry in Spanish territory. Two non-resident foreigners cannot marry in Spain, as at least one of the partners must be a Spanish resident, although they both may be non-Spanish citizens.