In France, Law No. 2013-404 of May 17, 2013, supplemented by Decree No. 2013-429 of May 24, 2013, enshrined the right to marriage for same-sex couples.
This right is codified in article 6-1 of the Civil Code, according to which “ Marriage and adoptive filiation carry the same effects, rights and obligations recognized by law (…) whether the spouses or parents are of the different sex or of the same sex. ».
It is now an acquired right. However, couples often come up against two kinds of problems: the mayor's refusal to celebrate the marriage and the prohibition by the personal law of one of the two spouses from any homosexual union.
The sanction of the mayor refusing to celebrate a same-sex marriage
If the refusal is only due to the sexual orientation of the spouses, it is therefore a discriminatory ground provided for in article 225-1 of the penal code and punished in article 432-7 of the said code.
The penalties are increased (5 years in prison and a 75 euros fine) when the discrimination targets a natural person and is practiced by a depositary of public authority or responsible for a public service mission, at the 'occasion or in the exercise of its functions.
It is not possible to assert a right of withdrawal because the mayor always has the possibility of delegating his functions to a civil status officer to celebrate marriages in his municipality.
Marriage to a foreign national whose law prohibits same-sex union
Same-sex marriage is not recognized in all countries, some have declared it illegal and it is even a crime in some laws.
What value will such a union celebrated in France have for foreign nationals?
In application of the strict hierarchy of laws, international agreements have a "supralegislative" value, that is to say superior to French law (article 55 of the constitution).
Hence a real legal difficulty for same-sex marriages when one of the spouses is a national of a country which has concluded a treaty with France, for example Morocco which prohibits any union between persons of the same sex.
Between the freedom of the right to marriage, which is a fundamental right protected by the European Convention on Human Rights, and the bilateral agreement concluded by France, which right will apply?
The answer is provided by article 202-1 paragraph 2 of the Civil Code according to which “… two persons of the same sex may contract marriage when, for at least one of them, either his personal law or the law of the State in which he has his domicile or residence so permits».
Clearly, the legislator, which provided for this difficulty, allows the personal law of a spouse who does not recognize same-sex marriage to be set aside if at least one of the spouses:
- Is French
- Lives in France
In practice, if the personal law of one of the spouses does not recognize this right, the marriage will not be recognized by the State of origin of the foreign national. But this marriage will be recognized in France, and in all the countries that have voted for same-sex marriage (Belgium, Spain, Canada, certain states of the United States of America, certain Brazilian states, the Netherlands, Sweden, New Zealand, Africa South, Mexico DF, Argentina, Norway, Denmark, Portugal, Iceland and Uruguay).
A position confirmed by the court of cassation in a judgment dated January 28, 2015 (Cass. Civ., 1st of January 28, 2015, n ° 13-50.059).
In this case relating to a Franco-Moroccan marriage between two people of the same sex, the public prosecutor opposed the marriage, arguing that an agreement signed in 1981 with the Moroccan state prohibited same-sex marriage.
The judges of cassation rejected the argument of the prosecution on the basis of article 202-1 paragraph 2 of the civil code.
Indeed, a bilateral agreement could not stand in the way of marriage because the future Moroccan husband had a connecting link with France (his domicile).
To avoid any confusion, it is up to the registrar to draw "the attention of those concerned to the possibility of non-recognition of their marriage abroad (… and D'…) inform the future spouses, one or both of whom are foreign nationals of the risks they incur with regard to certain laws applicable in the country of origin ”.