Relationship Triangle and the Citizens Directive: Does Subsisting Marriage Exclude the Access to Derived Residence of Durable Partners?

The Citizens Directive provides that informal durable partners of mobile EU citizens can benefit from derived residence rights. It, however, does not define who a durable partner is and, importantly for the present inquiry, it does not tell whether durable partners must be unmarried. That is, whether one can be formally married and simultaneously become a durable partner of another person. These situations, however, occur before national courts. The courts’ approaches in these cases are informed by the national transposition of the Directive, by the courts’ understanding and interpretation of its objective and by the factual circumstances of the cases. Drawing on case law of the CJEU and the ECtHR addressing formal and de-facto family ties in family reunification proceedings, this chapter compiles interpretative principles relevant for evaluating these situations. In cases of mobile EU citizens, national discretion is limited: states must respect the meaning of the term ‘facilitation’ and not impede the freedom of movement. In cases of static EU citizens, national discretion is broader. This chapter shows, however, that regardless of the applicability of freedom of movement, national courts align in understanding that formal marital status does not exclude the possibility to obtain a derived residence right as a durable partner, as long as the relationship’s durability is attested.