French gay marriage laws exclude some foreigners

When France legalised gay marriage earlier this year, it was trumpeted by the government as a key moment for equality. However, some couples soon found out they couldn’t get married because of a legal loophole.

Frenchwoman Lise (L) and her Polish girlfriend Agnieszka Kalvin Ng

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.

The news came as a bit of a surprise to the couple.

"Is that a joke? That was our first reaction," Lise said.

"No, it cannot be [true]," Agnieszka added. "They cannot put people in a different category just because of their nationality."

It’s the same situation for French people with same-sex partners from 10 other countries: Algeria, Bosnia-Herzegovina, Cambodia, Kosovo, Laos, Montenegro, Morocco, Serbia, Slovenia, Tunisia. These countries do not recognise gay marriage.

France’s justice ministry released a circulaire, or recommendation note, in late May, explaining to civil servants across the country how to apply the new marriage law. The document says those 11 countries’ citizens fall under the marriage laws of their countries of origin.

This applies even if the foreigner’s partner is French: "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," the note said. Officials must therefore refuse to marry these couples, and send the case to a magistrate, who will then decide on a case-by-case basis.

Thomas Fouquet-Lapar, a spokesman for Ardhis, a support group for gay and transsexual foreigners, said France’s gay marriage law was supposed to allow "everyone" to get married.

"Today, marriage equality applies to French people who want to marry each other, but if you’re a French person and you want to marry someone with another nationality, you better make sure you choose the right nationality," he said, adding that dozens of couples have come forward to his association after being barred from getting married.

"Some people [and] the government tell us that, in reality, we can overlook the ministry’s document. And today, magistrates have handed down favourable decisions to French-Algerian couples, French-Tunisian couples, and maybe tomorrow it will be the same for all the 11 nationalities affected. But why make people go through the legal system instead of making things simpler? French law should be applied the same way across France with no exceptions, so the ministry’s document must be rewritten," Fouquet-Lapar added.

In September, an official in the southern French town of Chambéry refused to marry a French-Moroccan gay couple because of the ministry’s document. The couple only found out the decision two days before their wedding day after friends and family travelled from Morocco and Belgium to attend the wedding.

The couple took the case to court, arguing that France had long ignored Morocco's marriage law precenting Muslims from marrying non-Muslims unless the non-Muslim partner converts.

The court ruled in their favour, saying the same-sex marriage law contradicts the circulaire. However, prosecutors have lodged an appeal against the decision.

Jean-Yves Leconte, a socialist party senator for French citizens living overseas, said he hopes this case will eventually set a legal precedent.

"In the case of a Moroccan Muslim woman who was barred from marrying a non-Muslim in France, the courts have established jurisprudence, establishing that, in this case, we don’t apply the convention between France and Morocco because it is contrary to French law. So we need to do the same thing for same-sex marriage," he said.

"There is a hierarchy [of norms] between the law, the constitution, and conventions. The only solution to avoid the application of the convention is if the application would be against public law in our country, and in this situation, I think it’s the case…everyone should have the same rights in France," he explained.

France’s justice minister, Christiane Taubira, who was one of the leading voices for marriage equality in President François Hollande’s government, has said she is open to rewriting the legal document on gay marriage. This may involve weakening the text so that it doesn’t explicitly call on officials to refuse to perform such marriages.

The 11 bilateral accords could also be renegotiated, but that would probably take years. The accord between France and Poland, for example, was renewed for another five years in its current form in early September.

In addition, Leconte and numerous associations are wary of renegotiations for fear of weakening other family law provisions, such as divorce and children’s custody rights.

Lise and Agnieszka say they just want to have the same right to marry as everyone else.

"We don’t know what life’s going to do to us, and we need protection more than a heterosexual couple because we always have to justify our relationship," she said.

"That’s why this piece of paper [a marriage certificate], it might not matter for other people, but for us it’s really important."

An online petition calling for the document to be rewritten has gathered more than 31,000 signatures.