French Law on Same-Sex Marriage

Extract

[...] On the one hand, France resorts to mechanisms for evading prohibitive foreign laws. But on the other hand, these mechanisms may encounter practical difficulties in implementation. A / The use of mechanisms for evading prohibitive foreign laws In the absence of international agreement on the question of opening marriage to same-sex couples, France has opted for the favor matrimonii system in order to allow access to marriage for citizens who could not originally benefit from this law. This principle will manifest itself through paragraph 2 of Article 202-1 of the Civil Code, which provides thattwo people of the same sex may contract marriage when, for at least one of them, either their personal law or the law of the State on whose territory they have their domicile or residence allows it In concrete terms, as soon as French law is more favorable in terms of celebrating marriage for same-sex couples, it will be the one that will be applicable For example, in the context of a marriage between a French person and an Algerian resident in Algeria, the national law of each spouse and the law of the domicile of the spouses are applicable. [...]

[...] Firstly, it will be necessary to note that French law is favorable to the marriage of same-sex individuals in light of the requirements of European law Secondly, it will be necessary to observe that while French law extends the right to marriage internationally, its effectiveness remains limited in practice (II). I / A French law favorable to the marriage of same-sex individuals in light of the requirements of European law Firstly, French law is favorable to the marriage of same-sex individuals in light of the requirements of European law. On the one hand, it consecrates a right to marriage without consideration of sexual orientation. [...]

[...] A ruling made by the 1stère chamber civil of the Court of Cassation on 13 March 2007 was able to make him talk.12 In this case, a marriage between a couple of men had been celebrated in violation of the law as soon as the difference in sex was a condition of validity of the marriage. The high magistrates then admitted the nullity of this marriage and again specified that the marriage must be celebrated between a man and a woman. [...]

[...] 20 The Constitutional Council, in a QPC decision rendered on 18 October 201321, has also added the fact that mayors could not claim a 'conscience clause' to refuse to celebrate same-sex marriages 22 Given that French law provides concrete measures allowing the celebration of same-sex couples' marriages, it is interesting to note that the legislator has gone beyond the requirements of the European Union B / A simple European obligation for States to ensure same-sex couples have legal recognition The European Court of Human Rights and the Court of Justice of the European Union do not require States to guarantee a right to marriage for same-sex persons The European Court of Human Rights has not yet recognized the existence of a fundamental right to homosexual marriage. In fact, it held in the Parry v. United Kingdom judgment of 28 November that Article 12 of the Convention consecrates the traditional notion of marriage between a man and a woman. [...]

[...] In this way, it excludes all laws prohibiting the marriage of same-sex couples from the moment when one of the spouses has their place of residence in Spain 33 Another question may arise regarding the bilateral conventions that France has signed with other states that do not recognize marriage between people of the same sex Originally, the Taubira law was accompanied by a circular of 29 May 2013 which provided that « when a marriage is considered between two people of the same sex, one of whom is a national of one of these countries, the civil officer will not be able to celebrate the marriage notably due to the hierarchy of norms since the conventions have a higher value than the law. However, this idea of the circular can be challenged. [...]