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France: Approval of Same-Sex Marriage Draft Law

(Nov. 15, 2012) France’s Council of Ministers (Conseil des Ministres, Cabinet) approved a draft law on November 7, 2012, that legalizes marriage for same-sex couples. The proposal gives such couples the rights usually assigned to marriage, as well as adoption rights, be it joint adoption of a child by the two spouses or adoption of the child of the spouse by his or her partner. (John Paul Regan, France Cabinet Approves Draft Bill Legalizing Same-Sex Marriage, PAPER CHASE NEWSBURST (Nov. 7, 2012); Mariage des couples de personnes de même sexe [Marriage of Couples of Persons of the Same-Sex], French Government Portal (Nov. 7, 2012).)

The draft law permits the celebration of marriage between two persons of the same sex resident in France, as well as the recognition in France of same-sex marriages celebrated abroad before the proposed law’s entry into force. It does not amend the current legal regime of marriage or of parentage by adoption; it opens to couples of the same sex the institution of marriage with its rights and obligations. Nevertheless, it includes provisions to adjust, particularly for the determination of the name of the adopted child, the current rule providing for the assignment of the father’s name in the absence of a choice made by the parents, which would no longer be appropriate in the case of a same-sex couple. (Mariage des couples de personnes de même sexe, supra.)

The draft lays down numerous provisions on compliance with various other regulations. When strictly necessary, the words “father” and “mother” are to be replaced by the word “parent” and the words “husband and wife” by the word “spouse,” but these changes are not systematic. (Id.) Most notably, “parent” would replace the two terms “father” and “mother” wherever they appear in the Civil Code. (Katy Waldman, In a Bid for Gay Rights, French Seek to Ban the Words Mother and Father, SLATE (Sept. 27, 2012); Code civil (consolidated version as of June 2, 2012), LEGIFRANCE.)

Reportedly, this change might affect some 382 parts of the French Civil Code that mostly concern torts and family law. For example, article 56 of Book I states: “[t]he birth of a child shall be declared by the father, or, in absence of the father, by the doctors of medicine or surgery, … or other persons present at the delivery; and, where the mother has given birth outside her domicile, by the person at whose place she has given birth.” (Waldman, supra.) The word “parent” would replace “father” and “mother” in the article, making it possible for “a mother—insofar as she is also a parent—[to] legally declare the birth of her own child.” (Id.)

The change would not affect civil status acts and the family register, however, whose form is not governed by the law. For such acts, as well as in the family register, the terms “father and mother” will continue to be used, as long as the partners are of different sexes. (Mariage des couples de personnes de même sexe, supra.)

French President Francois Hollande has promoted the bill, but the issue of same-sex marriage is a controversial one in France. Although Hollande’s advocacy in favor of it reportedly received broad support during his presidential campaign, that support has wavered in the face of opposition to same-sex marriage from conservatives and French religious leaders. (Regan, supra.) Since 1999, same-sex couples in France have been able to lawfully engage in a form of civil union called a PACS, Pact of Civil Solidarity(pacte civil de solidarité). However, some French mayors had made a series of declarations indicating they would refuse to perform same-sex marriage ceremonies if a same-sex marriage law were passed; the bill was unveiled after these events occurred. (Bastien Inzaurralde, Support for Gay Marriage in France Declines as Government Pushes Bill, THE CHRISTIAN SCIENCE MONITOR (Nov. 9, 2012).)

The draft law will be submitted to the French National Assembly (France’s parliament) early next year for approval. In 2011, however, the legislature rejected a similar bill, and in the same year the country’s Constitutional Council (Conseil Constitutionnel) ruled that a same-sex marriage ban was not in violation of the Constitution. (Id.; Andrea Bottorff, France Court Upholds Same-Sex Marriage Ban, PAPER CHASE NEWSBURST (Jan. 28, 2011).)