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Gay marriage, “fundamental freedom” in the Court of Cassation
(Blogmensgo, gay blog of 7th February 2015) The French Court of Cassation "legally justified", in a judgment of 28 January 2015, the marriage of a French-Moroccan gay couple already validated by the French courts of first instance and call. The Attorney General used a French-Moroccan bilateral agreement premium in French law - for senior legality, according to Art. 55 of the Constitution - and prohibiting any Moroccan national to marry a person of the same sex.
A bilateral agreement can not suppress the right to marriage
The Supreme Court dismissed the cassation prosecution after the Court of Appeal of Chambéry had ruled in favour of marriage between two men, one French national and one Moroccan citizen. The two men live together on French territory.
Article 5 of the Franco-Moroccan bilateral agreement of 10 August 1981 states that "marriage substantive conditions [...] are governed for each spouse by the law of the State in which he is a national." It is in this article that relied most of the arguments presented by the Attorney General for annulment of marriage.
In its expected (link in french), the Supreme Court has favoured Article 4 of that bilateral agreement stipulating that "the law of one of the two States designated by this Convention may only be excluded by the other state courts if it is manifestly incompatible with the public order. "
This is not the French law of 17 May 2013 opening marriage to same-sex couples "is manifestly incompatible with the public order [but] the relevant Moroccan law which opposes the marriage of same-sex soon provided that, for at least one of them, or the personal law or the law of the State in which he has his domicile or residence permits. "
In other words, the section of the Franco-Moroccan agreement suggesting the illegality of gay marriage is void because it violates itself to public order in France. The Court of Cassation explicit in a press release of 28 January 2015:
"The marriage between persons of the same sex is a fundamental freedom that an agreement between France and Morocco may interfere with if the future Moroccan husband has a link of connection with France as his home. »
In this judgment, the Supreme Court sought to "ensure the fundamental freedom to marry" . The decision also aims to respect the notion of equality between French territory all foreign citizens:
"The Court's solution and respect the equality between people of Moroccan nationality and other foreign nationals to whom the civil code allows you to married in France, with a same-sex spouses. »
The Paris police headquarters convicted of abusive decision
In another case unrelated to the above, the Paris Administrative Court, by order of 31 December 2014, condemned the Paris Prefecture for refusal to issue passports to children suspected to be from GPA. The summary conviction becomes final, the prefecture did not appeal.
In a press release (Link in French) of 30 January 2015, the Association of Parent Families (ADFH) recalls previous convictions against France for similar facts and legal decisions which are binding on the administration. "In a state of law, it is not procrastinating with court decisions applying the" summarizes HRBA.
This article has been translated from our French blog, to view the original, click here.