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Same-Sex Marriage in France and Conflict of Laws: an Illusion of Equality

JURIST Guest Columnist Angelique Devaux, a French attorney and LL.M graduate of the Robert McKinney School of Law, discusses the impact of conflict of laws on the same-sex marriage bill passed in France...

In a time when France has lost its fame for crusading for human rights, "marriage for all" has been the popular name given to same-sex marriage by the French Socialists' impetus in the pursuit of equality—France has waited 13 years after the Netherlands to address an issue in line with contemporary social reality. On April 23, 2013, President François Hollande signed the bill that legalizes same-sex marriage after the issue was previously reviewed by the Constitutional Council and approved by France's Parliament.

As in the story of Windsor v. United States, same-sex marriages performed in foreign jurisdictions often create difficulties in travel which include passport and short-term visa issues, as well as total refusal of entry into certain countries where same sex marriage is prohibited and even criminalized. In anticipation of potential traveling problems, French lawmakers have included language in the new bill which states that marriage performed in a foreign jurisdiction satisfy the legal requirements of marriage in France. It is the statutory confirmation of the rule locus regit actum. An example of this legal theory can be found when one acknowledges how a wedding performed in Canada between a Frenchman and a Canadian is valid in France if all the Canadian legal requirements have been fulfilled.

The French legislature, in an attempt to catch up in the human rights arena, addressed the validity of foreign same-sex marriages which were performed before the law comes into effect. Retroactivity is uncommon for French civil statutes and the simple presence of this attempt reflects the goal of the French Government to reach the equality by expanding on the strength of the French Bill of Rights [PDF].

The goal of equality is universal throughout France as the current French Minister of Justice and leader of the bill, Christiane Taubira [French] has said. Although France does not want to be called "The Vegas of gay marriages", the legislature addressed and removed its traditional reference to spousal personal jurisdiction laws in validating a marriage celebrated in France by foreigners. The new conflict of law rule has been enlarged and marriages can now be celebrated in France between foreigners when one party's personal jurisdictional law allows for it. France's same-sex marriage law is different than Belgium, the second country in the world to recognize same-sex marriage, with requirements that only one spouse be required to establish a "habitual residence" in France for marriage to be recognized. In fact, France only requires one month of residence in the country to establish domicile—this may result in fashionable tourism du marriage a la Francaise [for French marriage]!

This high level of commitment in matters of conflict of laws has been a staple in the history of France. One issue still pending before the thirteen bilateral conventions signed by France related to marriage's substantive conditions and how the condition should consider the personal jurisdictional law of the future spouses. Should these conventions with Poland, Morocco, Bosnia-Herzegovina, Republic of Montenegro, Serbia and Slovenia, Vietnam, Madagascar, Cambodia, Laos, Tunisia and Algeria continue to be applied? Is the new bill conforming to these Conventions and vice-versa? These issues should be asked to and addressed by the Constitutional Council in the near future as it is their role to examine the compliance of a bill to the Constitution and the International Conventions. The argument has been made by opponents to the language of the bill during the heated debate, but the Garde des Sceaux [attorney] was confident when she argued that only the judiciary could make the determination as to whether or not there are exceptions in such cases. These judicial decisions can be surprising and until the French Constitutional Council declares the law in accordance with the Constitution—the maximum time allowed for deliberation is a month—France must wait before a complete victory of the same-sex marriage bill is declared.

This revival from the past creates a quasi-illusion of equality for those nationals who are seeking marriage in France or French citizen's seeking same-sex marriages while the Constitutional Council braves the storm and the judges remind themselves of the French Republican motto: "Liberty (Liberté) for any couples to choose a legal frame for their unions; Equality (Egalité) for any couples to the access to the legal norm; Fraternity (Fraternité) of any citizen whatever their sexual orientation."

Angelique Devaux is a French Licensed Attorney (Notaire) and LL.M '12 graduate of the IUPUI Robert McKinney School of Law.

Suggested citation: Angelique Devaux, Same-Mex Marriage in France and Conflict of Laws: an Illusion of Equality, JURIST - Sidebar, May 13, 2013, http://jurist.org/sidebar/2013/05/angelique-devaux-same-sex-marriage.php.

This article was prepared for publication by Stephanie Kogut, Section Head of JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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