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FRANCE: Same Sex Marriage Rights Conferred Under French Immigration Procedures

The Act of May 17, 2013, modifies section 143 of the Civil Code to read: "Marriage is contracted by two persons of opposite sex or the same sex." France thus joins the countries that have legalized marriage between persons of the same sex. Those countries include Belgium, Spain, Canada, some states in the United States and Brazil, the Netherlands, Sweden, New Zealand, South Africa, Mexico (Federal District), Argentina, Norway, Denmark, Portugal, Iceland, and Uruguay. The new law means that in France, marriage will confer the same rights under French immigration procedures regardless of the sex of the spouses.

General Provisions; Conflict of Laws In Other Countries; Consular Marriage

Article 202-1 of the Civil Code provides that the conditions for marriage are governed by family law, but article 202-2 provides that two persons of the same sex can marry when the family law or the law of the state of residence of one spouse permits. This arrangement allows avoidance of the application of the family law of one spouse prohibiting marriage between persons of the same sex when the marriage took place on the territory of a state recognizing marriage between persons of the same sex.

The above implies that two foreigners of the same sex can marry when one of them resides or is domiciled in France. However, this rule does not apply to nationals of countries with which France is bound by bilateral agreements (Poland, Algeria, Tunisia, Morocco, republics of the former Yugoslavia, Cambodia and Laos), which provide that the law governing conditions for marriage is the personal law. The marriage, however, may take place in a non-prohibitive state having no bilateral agreement with the country of the spouses.

Foreign nationals may find themselves in situations where their marriages in France are not recognized by their countries of origin.

A consular marriage (registered at the French consulate) between same-sex French nationals would not raise an issue. However, a consular marriage between a French national and a foreign national may be more complex in consular posts in countries that prohibit same-sex marriage. In such case, the Civil Code provides that marriage may take place in France.

The law of May 17, 2013, also provides that marriages between same-sex couples, validly celebrated abroad at a time when the French law forbade it, may be recognized retroactively.

Impact on French Immigration Rights of Foreign Nationals Moving to France

Derivative residence and worker rights known as "accompanying family rights" will be applicable to married foreign workers under Intra-Company Transfer, EU Blue Card, and Skills and Talents status, regardless of the sexual identity of the spouses when the marriage is celebrated in France or recognized by France (marriage between two foreigners) on the basis of the new provisions of the Civil Code and Article L313-11-3 CESEDA (code de l'entrée et du séjour des étrangers et du droit d'asile).

A same-sex marriage between a foreign national and a French national will allow the issuance of a visa and a residence permit to the foreign national as the spouse of a French national, on the basis of the Civil Code and Article L313-11-4 CESEDA.

The marriage between a third-country national in the European Union with a European citizen is expected to allow the issuance of a residence permit as a European spouse under Articles L121-3 to L121-5 CESEDA.

Recognition of marriage for same-sex couples could also give rise to new legal actions when a decision refusing stay may be considered as disproportionate interference with the rights to private and family life, under Article 8 of the European Convention on Human Rights.

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