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The Stunning Loophole that May Block Some of France's Same-Sex Couples from Marrying

Lise_agnieszkaAfter a nation-wide campaign that brought thousands of protesters on both sides of the issue out into the streets of Paris earlier this year, the French legislature approved a marriage equality bill by an overwhelming vote that was signed into law by President François Hollande the following month, making France the 14th state to allow same-sex couples to wed.

But some same-sex couples are discovering that they may be barred from marrying because of a quirk in French marital law, as RFI English reports:

Frenchwoman Lise and her Polish girlfriend Agnieszka have been together for three years. They were looking forward to getting married after France this year became the 14th country to legalise same-sex marriage, following months of bitter debate.

"We were also really happy because it meant that we were accepted by the society," Agnieszka said. "Then our relationship can be recognised, and we are not freaks or…"

"Different," Lise added.

But under a bilateral agreement signed between Poland and France in 1967, Agnieszka falls under Polish marriage law even while in France. Since Poland doesn’t recognise gay marriage, a French magistrate would have to overrule Polish law to approve the wedding.

Ten other countries fall into the same category as Poland for the purposes of French marriage law for same-sex couples: Algeria, Bosnia-Herzegovina, Cambodia, Kosovo, Laos, Montenegro, Morocco, Serbia, Slovenia and Tunisia. In a memo issued last week to French civil servants, the justice ministry wrote, "When a marriage is planned between two people of the same sex, and one of the future spouses is a national of one of these countries, the civil registrar cannot perform the marriage." Requests from such couples must be denied and sent to a magistrate, who will determine if the couple can wed on a case-by-case basis.

Christiane Taubira, France's justice minister and a strong proponent of marriage equality, said she would consider reconsidering the rules regarding binational same-sex marriages so that officials aren't specifically instructed to refuse couples' requests.

Last month, a French-Moroccan same-sex couple's marriage request in the town of Chambéry was refused on the couple's wedding day--after friends and family had travelled from Morocco and Belgium to celebrate the occasion. The couple plans to challenge the decision in court, since France does not enforce another aspect of Morocco's marriage laws that prohibit Muslims from wedding non-Muslims who have not converted.

(photo courtesy of Kalvin Ng and RFI English)

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Comments

  1. Why would such an agreement have been made in the first place? What function is it supposed to serve?

    Posted by: Gregory in Seattle | Oct 8, 2013 7:55:38 PM


  2. I was wondering the same thing. I can't even figure out why those specific countries. I suppose it could have something to do with those countries fearing emigration for the sole purpose of marrying under French law, but it still seems like such an odd agreement.

    Posted by: OddBet | Oct 8, 2013 8:07:06 PM


  3. I don't think the US government enforces laws of other nations within our borders, which seem right to me.

    Poland suffers from a very severe case of Catholic Church, I'd pray for them if there really was a Sky Monster.

    Posted by: Stephen Rider | Oct 8, 2013 8:19:21 PM


  4. Even before this, France wouldn't allow binational couples to enter into a PACS (their civil unions) if one of them came from a country that didn't also allow such unions.

    It's nonetheless a little surprising that France is keen now to uphold Polish law when a decade ago it obstructed Poles from working in France despite its EU obligations.

    Posted by: Mike W | Oct 8, 2013 8:24:29 PM


  5. why would such a treaty exist?

    It is because of divorce. Citizens can turn to the laws and constitution of their country of citizenship. A marriage between citizens of 2 countries could be problematic in a divorce situation, with each applying the laws of their own country. If the 2 laws differ significantly no court would be able to resolve it. It would end up becoming a dispute between the two countries & involve both governments negotiating the divorce.
    "back in the day" married couples would often refer to marital spats or arguments as "making an international incident of it" for that very reason.
    Many countries banned divorce, and entered into bilateral treaties with countries that had un-banned it.
    That all changed in 1962 with a UN treaty in which all signatory countries recognize the marriages and divorces of all other signatory countries.
    But the old bilateral treaties are still on the books and are still enforceable. Poland does not recognize same sex marriage. The Polish (or any of the other 9) Government can invoke the treaty, and the French can do nothing about that.

    Posted by: Neil Cameron | Oct 8, 2013 9:42:01 PM


  6. Fascinating, thanks Neil.

    Posted by: BABH | Oct 8, 2013 10:42:50 PM


  7. Don't be conned by the "accepted by society" part.

    Posted by: KS | Oct 9, 2013 12:11:28 AM


  8. Don't marry outside your country, problem solved.

    Posted by: Hagatha | Oct 9, 2013 12:43:07 AM


  9. so what part of marriage law does the Treaty affect ?

    is it the "capacity" ?
    This is always governed by the law of the domicile.
    If the Polish party has changed domicile to France, then surely that party has "capacity" under French law.

    Or does the Treaty say that for a marriage to be valid , it must be valid in both 'nationalities' instead of domicile ?
    i.e. it must be capable of being a recognised valid marriage under both laws.


    Posted by: JackFknTwist | Oct 9, 2013 2:11:06 AM


  10. It may be problem if a Pole and a French married both in Poland and France and want a divorce. In this case of same sex marriage, they can only marry in France. That means they are under French law even in the case of divorce. The sensible way is to allow marriage in only a single country. Of course the second country could still recognize that marriage. Problem solved.

    Posted by: simon | Oct 9, 2013 2:57:59 AM


  11. Half of the countries listed were actually one when the treaty was signed: Yugoslavia. Yugoslavia was very possessive about its citizens (as in once a Yugoslav, always a Yugoslav), and the agreement may have had something to do with that.

    But I'm not sure how Croatia and Macedonia are off the list. Maybe they have new agreements?

    Posted by: KevinVT | Oct 9, 2013 3:41:53 AM


  12. Reminiscent of the "1913 Law" which Romney attempted to resurrect in response to the MA SJC passing SSM in 2003....

    Posted by: aj | Oct 9, 2013 1:16:02 PM


  13. What happens if they're legally married in, for example, Belgium? Do they return home and require scrutiny by the French government before their legal marriage becomes 'legal' in France? Does France apply such scrutiny to others who are married 'outside' of their home country when they return before recognizing their legal marriage? Their marriage is 'legal' in France but for this provision requiring a magistrate approval to marry if they are married withIN the borders of France - or so it would seem. The Catholic Church has tendrils - along with their new best friends of the Eastern Orthodoxy nations - in many places.

    Posted by: RexT | Oct 9, 2013 3:25:09 PM


  14. I just married my French partner here in Maine last week. I think I am ok, but I nearly freaked when starting to this post.

    Posted by: Marc | Oct 9, 2013 6:41:41 PM


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