Different unions between same-sex people in France: from the "non-definition" of family in the French Constitution, to "Le mariage pour tous", by Jeannette Tilotta

27 February 2022

The issue of the recognition of homosexual unions has been one of the most controversial issues of the 21st century worldwide. Recognition of the equal social dignity of homosexual couple bonds is an extremely significant step towards the upholding of the fundamental rights of the individual.

In the present situation, there have been struggles, social, political, and economic transformations involving national and international organizations and courts which have had to negotiate between the plurality of fundamental rights and the potential conflict between them.

France was among the first countries in Europe to open its doors to same-sex marriage. Since the Constitution Français (1958) does not provide a meaningful definition of the concept of "family", the choice of the French legislator appeared surprising.

Nevertheless, the Preamble contains a reference to the Constitutional Charter of 1946, which declares that: «La Nation assure à l'individu et à la famille les conditions nécessaires à leur développement» ("The Nation assures the individual person and the family the necessary conditions for their development").

French constitutional law regards the family not so much as a structure in itself, but as a place where constitutionally protected rights are recognized and attributed. Marriage falls within this definition.

Since the Conseil Constitutionnel has no primary jurisdiction over the subject, it has rarely dealt with reforms to family law, leaving a great deal of freedom to the legislator and to national and international jurisprudence, with the advantage of a quicker capacity evolution.

Thus, it should not come as a surprise that the Conseil Constitutionnel has not addressed issues relating to homo-affective marriages: there are no explicit restrictions, but there are also no regulations that "facilitate" this kind of union.

In French law, homosexuality has always been considered in light of the principles of freedom and tolerance. During the past few decades, increased attention has been paid to the level of equality of same-sex couples in comparison to "traditional" couples.

At that time, the proposals on the recognition of unmarried couples (“concubinage”) and homosexual couples were numerous, and finally, the first agreement was reached with Law no. 99/944 of 15 November 1999, relating to the Pacte civil de solidarité (better known as "Pacs").

The “Pacs” functioned as an institute governed by an autonomous discipline, distinct from marriage and characterized by the importance of the negotiating autonomy of the participants.

The concept of these legislative proposals was conceived by homosexual associations. The goal was to address urgent issues such as housing, social coverage, succession, as well as the recognition of homosexual relationships.

The approval of the PACS, which is open to both heterosexual and homosexual couples, has sparked a number of debates both in the public and in the political sphere, including appeals to the Conseil to determine the legitimacy of this institute.

With the approval of Decision No. 99-419 AD, the Conseil definitively rejected the notion that institutionalizing cohabitation outside of the traditional marriage would violate the fundamental principles of republican laws intended to protect marriage and the family.

Article 515-1 of the Code Civil describes a "Pacte Civil de Solidarité" as a contract between two natural persons of legal age, of different sexes or of the same sex, to regulate their common life. It is a contract by private law, concerning arrangements in a couple's life (« verifiable couple life ») related to a stable romantic relationship, which defines its effects following registration with the court.

Traditionally, it has been considered an institution halfway between marriage and concubinage, from which it differs because the Pacs specify certain obligations such as "mutual and material help", characterized by the fact that the modalities are chosen by the parties independently and defined by the pact. However, it differs from marriage in terms of a limited formalism in regards to its stipulation, modification, and dissolution.

Despite the entry of the Pacte civil de solidarité into French law, members of homo-affective unions continued to feel discriminated by this legislative system that allowed heterosexual couples to choose between a de-facto union and marriage, while forcing homosexual couples to use the pact to achieve the legal effects of their affective union.

Within this complex normative and social context and as a result of the international jurisprudential pressures resultant from the ECHR's interpretation activity, we have finally reached the bill proposed by Christiane Taubira, the Minister of Justice, to allow same-sex marriages.

Law no. 2013.404, called "Loi sul le mariage pour tous", has finally amended art. 143 of the Code Civil, sanctioning that «Le mariage est contracté par deux personnes de sexe différent ou de même sexe» and allowing France to become the fourteenth state in the world to allow homosexual couples to access the institute of marriage, on par with heterosexual couples.

The first same-sex marriage in French history was celebrated in Montpellier on May 29, 2013. This marks the start of a significant milestone for the European Union.