It is now the practitioners take the pen

Same-sex marriage is one of the subjects of society which is in France the most passionate reactions. No doubt it will be at the heart of the debates of the next presidential elections. The point of view of the lawyer, it must be recognized that the civil Code formally opposes same-sex marriage. Article 75 States that the civil status officer will "receive from each party, one after the other, the statement that they want to take to husband and wife;" "he will deliver, on behalf of the Act, that they are United by marriage and complete act immediately". Difficult to be more explicit! Moreover, it is essentially under the text that the media "Bègles marriage" has been cancelled by judges (1).

If French law prohibits same-sex marriage, is not less than several countries the Belgium, the Canada, the Spain and Netherlands have already acknowledged, so that the question of the effects in France of same-sex marriages celebrated abroad.

For the time being, the problem of France of the effects of a celebrated homosexual union recognition abroad yet was did to the knowledge of the French courts. Practical examples are numerous and demonstrate the importance of the issue. Thus, exercising a kind of law shopping, homosexual couples on the French territory could have the project to marry in a country recognizing same-sex marriage: on their return to the hexagon arise the issue of recognition in France of their marriage.

Will the French notary, receiving the contract of acquisition of real property in France by a pair of married gay and living abroad, consider the purchasers as married people In the same perspective, can the French notary establish a gift between spouses or a deed of change of matrimonial regime for the benefit of persons of same sex married abroad Will the survivor be the rights to the surviving spouse in the estate of the predeceased spouse

Change of matrimonial regime

Before the abundance of these examples, the French jurist may experience some discomfort. Very conveniently, two recent responses of the keeper of the seals give useful information practitioners (2). To resolve the issue, reference is made to the criterion of the nationality of the persons in question: a celebrated same-sex marriage validly abroad may produce effects in France if the national law of the interested parties recognized this union.

Specifically, as one of the members of the couple is of French nationality, marriage celebrated abroad will not recognized in France, since French national law prohibits. In contrast, a same-sex marriage celebrated abroad that will be considered as compliant with the national law of each spouse will be recognized in France.

This position of the keeper of the seals is a perfect logic under the rules of French private international law. It is just an application of the theory, well known to French jurists, "the effect mitigated the international public order", which public order does not preclude the effect in France abroad created situations that he would oppose the creation of these situations in France. Therefore, in application of the theory that the polygamous marriage celebrated abroad produced some succession effects in France, while French law to oppose the creation of such a union in France.

The response of the garde des Sceaux, a very important practice, must be approved. It puts an end to the legal uncertainty prevailing about same-sex marriages celebrated abroad. Now, of persons of the same sex, of foreign nationality, validly married abroad, were on its heritage, including estate, the quality of spouse. It is possible to agree in France a gift between spouses or change their matrimonial regime for the benefit of a matrimonial regime French. It is now the practitioners take the pen!