Gay Marriage: France Blacklists 11 Nationalities (Updated)
In May 2013, France adopted a law allowing gay marriage.
The statute confirmed France’ traditional choice of law rule according to which the law of the nationality of each spouse applies to the substantive validity of marriage (Civil Code, Art. 202-1, para. 1). However, in order to avoid confining the new legislation to couples of nationals originating from the 14 jurisdictions or so which allow gay mariage, the statute also adopted a new rule providing that same sex marriage would still be allowed when the national law or the law of the residence of one of the spouses only allowed it (Civil Code, Art. 202-1, para. 2). I have already reported how the French Constitutional Council miraculously found this provision to be constitutional.
So, is everybody welcome to come to Paris to marry a French national? Not quite. The French ministry of justice has issued guidelines instructing French mayors not to marry couples including a national coming from a list of 11 jurisdictions. The reason why is that France concluded a bilateral treaty with each of these jurisdictions providing for the application of the law of the nationality of each spouse. As treaties are superior to statutes in France, the administration has concluded that these treaties prevail over Art. 202-1, para. 2 of the Civil Code.
La règle introduite par l’article 202-1 alinéa 2 ne peut toutefois s’appliquer pour les ressortissants de pays avec lesquels la France est liée par des conventions bilatérales qui prévoient que la loi applicable aux conditions de fond du mariage est la loi personnelle.
Dans ce cas, en raison de la hiérarchie des normes, les conventions ayant une valeur supérieure à la loi, elles devront être appliquées dans le cas d’un mariage impliquant un ou deux ressortissant(s) des pays avec lesquels ces conventions ont été conclues. En l’état du droit et de la jurisprudence, la loi personnelle ne pourra être écartée pour les ressortissants de ces pays.
Most of these treaties, however, were concluded in the 1950s and 1960s. None of them contains any express provision on same sex marriage.
The blacklisted nationalities are:
– Algeria, Tunisia and Morroco,
– the five countries which formerly constituted Yugoslavia
– Laos, Cambodia
A French prosecutor enforced the guidelines at the beginning of September and denied the right to marry to a Franco-Morrocan couple.
The decision of the prosecutor was set aside today by a first instance court of Chambery.
I could not see the judgment, but the French press has reported that the Court would have ruled that the recent French statute has modified French international public policy, and that the applicable bilateral convention should thus be avoided as it discriminates against gay people.
This would be an innovative use of the public policy exception, to avoid the law of the forum, as discussed in comments by Mr Margonski and Mr Davis.
It will be interesting to see how the PIL in the UK plays out. There is no indication in either the Marriage (Same Sex Couples) Act 2013 for England & Wales or in the Marriage and Civil Partnership Bill for Scotland that the existing dual domicile theory is to be amended. The position in Northern Ireland is complicated by the Good Friday Agreement with Ireland and there is no current indication that same sex marriage is likely soon to become valid on the island of Ireland. Is public policy in Britain about to make a complete U-turn from the position set out in the Wilkinson v Kitzinger case?
Not the first time historical bilateral agreements, almost everybody has forgotten, come up in an entirely new context. From Polish point of view the position of French courts would be highly interesting, so I am looking forward to updates on the topic. I can imagine that a possible (even though controversial in case of a bilateral agreement) next step could be the application of the French lex fori on the basis of public policy, when the foreign national residing in France is not able to marry his homosexual partner but has strong enough links to France…
Is that really quite right, the reference to the dual domicile test ? Sottomayor v De Barros (No 2) seems to fit the future facts rather neatly if the point is to explain the irrelevance of laws of foreign countries which do not see the freedom of the two parties to marry in the same way as English law does.
I understood from Dicey, that Sottomayer v De Barros (No 2) was the exception that proved the rule. Yes, if one of the parties to a marriage celebrated in England & Wales is domiciled in England & Wales, then the lack of capacity of the other party is ignored. However, that rule will not apply in other circumstances, such as same sex marriage outside England & Wales and the general dual domicile theory remains. The question surely is whether as a matter of public policy, England & Wales will now regard a ban on same sex marriage as in breach of public policy, in the same way that at the moment, we regard it as a matter of public policy that we permit civil partnerhsips but not same sex marriage?
I took the original point to be about marriage within the jurisdiction. Sottomayor is therefore in point as a decision about the injustice of applying strange foreign incapacities to the marriage of English domiciliaries in England. I agree that it does not apply to (non-)marriages in foreign countries. The idea that English public policy can create or constitute of confirm a marriage which the foreign country forbade had not really got beyond problems of formal validity. The idea that English public policy might constitute a marriage which has not taken place, even if the reasons for the marriage having not taken place offend our public policy of equality and freedom of consenting adults to marry, would be a novelty, and whatever one thinks of the individual merits, not a very compelling novelty in point of law.
I was thinking more about the issue of marriage in Britain between two non domicilliaries from states that do not recognise same sex marriage. Now that 40% of the population of London was born outside the UK, this will not be an uncommon occurrence. How will public policy in Scotland and in England & Wales, regard such a marriage?
Born outside does not so much matter; but if they have not acquired a domicile of choice in England, the position surely is that they are not able to pretend that the capacity rules of English marriage law have anything to do with them. If they were both to come from states in which they were incapable until 21, they could not lawfully marry here. That said, I can see that if they had (for example) both been domiciled in South Africa while the Mixed Marriages Act was still in force in that country, and it had been reasoned that this prevented their marriage in England, the answer would surely have been that it did indeed prevent their marriage unless the applicable rule of foreign law was so evil that an English court might not even receive evidence of it (rather as in Kuwait Airways v Iraq Airways: you would then just blue pencil the offensive part of Iraqi law and apply the rest of it). Someone may make the case that the law of unenlightened countries on this point is just so vile, but I doubt that the point is yet seriously arguable, at least without a lot of collateral support in the form (for example) of resolutions of the Security Council and General Assembly. I very much doubt that the ECHR can carry the burden by itself, at least at the moment.
Dr Margonski raises the interesting possibility of French public policy (ordre public de proximité) being used to apply French law to French residents as regards same-sex marriage even though international conventions might provide otherwise, just as has occurred already in France over adoption cases and talaq denunciations. The same principle already applies, by statute, in Belgium and the Netherlands. In this regard I think Mr Frimston’s suggestion very valid that similar developments may occur in England to uphold same-sex marriages celebrated in England even where neither party had capacity under a personal law of domicile. It will not be too long before a foreign same-sex couple, eg between a Pole and an Italian, married in London in 2014, seek a divorce. Either could then claim that at the time of marriage he had not acquired a domicile of choice in England, on the basis perhaps that he intended to return “home” at some point in the future (such as on the death of his husband). Are we then to expect that an English court would refuse to grant a divorce and refuse to give financial relief on the basis that the couple’s English marriage was void for lack of essential validity? That seems unlikely to me.
That seems to me to be exactly what an English court would do: it cannot dissolve something which was never a marriage, and it puts the cart before the horse to reason that because it is convenient to divorce, English private international law must invent a marriage.
Surprise, surprise… One day a legal change, controversial from the point of the worldview of the conservative part of the society, is introduced by the majority. The next day your constitutional tribunal has to rule whether its introduction is not contrary to your constitution. The day after you are faced with the problem, whether the introduced change already belongs to your public policy and its application should be forced in relations to other states…
Thanx for the update!
No doubt. If only conflictoflaws.net had been in existence when we abolished slavery we could have had the same discussion and might even have produced the answer to this question.
There is still no final point to this issue …. The State prosecutor brought an appeal today against the decision of last Friday continuing to argue the supremacy of international conventions over domestic law (Art. 55 French Constitution of 1958) …
To be continued … next step October 21st.
Press report in Le Monde
Extremely pedantic observation: Yugoslavia consisted of 6 republics – only 5 of these are mentioned in the link you gave. Croatia is omitted.
Extremely pedantic observation: Yugoslavia consisted of 6 republics – only 4 of these are mentioned in the link you gave. Croatia and FYROM are omitted. Kosovo (accepted as independent by many but not all) is included but was only an autonomous region of Serbia.
I am not sure who is pedantic, Francis, but your comments allow me to make the following clarification for those, like you, who could not understand the document in the link: only five Republics of former Yougoslavia have declared that they woud take over the bilateral treaty between France and Yugoslavia.