France's new same-sex marriage law does not apply to all gay couples, as some binational couples have recently discovered. Under the terms of a Justice Ministry memo, foreign nationals from 11 countries are not covered by France’s gay marriage law.

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After a long, acrimonious debate marked by street demonstrations, violent clashes and a rise in homophobic attacks, France finally passed a law legalising same-sex marriages on May 17. But under the existing law, some equal unions are more equal – or less equal – than others.

A memo signed by French Justice Minister Christiane Taubira on May 29 decrees that nationals of 11 countries are not covered by the same-sex marriage law. The countries on the exemption list include Poland, Morocco, Bosnia and Herzegovina, Montenegro, Serbia, Kosovo, Slovenia, Cambodia, Laos, Tunisia and Algeria.

"In the case of an intended marriage between two people of the same sex, if one of the spouses is a national of one of these countries, the state registrar shall not solemnise the marriage," the statement said.

The 11 countries, which have signed agreements with France, are mostly former Yugoslav republics, where gay marriage is prohibited. According to the May 29 memo, in such cases, each of the spouses is subject to the law of their respective countries.

"France has signed particular conventions at the time of decolonisation in the 1960s," said Mathias Audit, a law professor at the Université de Paris Ouest - Nanterre-La Défense. “These agreements were designed to respect the religious identity of the countries and also to resolve the status of migrant workers or the status of people of French origin who remained in the former colony and wanted to remain under French law. These rules have endured.”

‘A breach of equality’

Gay rights groups across France have reacted with dismay to the memo exempting certain nationals from the 2013 gay marriage and adoption law.

According to Philippe Colomb, president of Paris-based gay rights group, ARDHIS, the organisation has been receiving calls from several binational couples. "There’s a French and Algerian couple who have wanted to get married for a long time. They are extremely disappointed and believe that once again they are being denied their rights. This is clearly a breach of the principle of equality - not just for a foreign national, but also for French citizens who cannot marry the person of their choosing.”

Officials at Amoureux au Ban Public, a Paris-based group that works with binational couples, also say they are fielding numerous inquiries from such couples. Charlotte Rosamond, national coordinator of the organisation, notes that the problem with the legal memo is not just a matter of principle. “Without marriage, there are couples who cannot address their legal status. Just because you’re in a relationship with a French citizen does not mean you cannot get deported,” explained Rosamond.

A legal limbo?

But from a legal perspective, "these marriages are currently impossible unless the non-French national changes his or her nationality,” explains Audit. According to the law professor, if French authorities were to allow these unions, it would mean a breach of various bilateral agreements.

Couples affected by the May 29 legal memo could choose to take the state through the courts. “They would have to go through the French legal system or they could turn to the European Court of Human Rights," said Audit.

"There are clearly some legal difficulties here, but they are surmountable. France should allow these unions and at the same time affirm its commitment to the principle of equality of citizens in relation to marriage,” said Audit.

Legal experts such as Audit note that France is a lot more flexible about heterosexual marriages.

For example, according to the 1962 Evian Accords - which set the terms for Algeria’s independence from France - an Algerian Muslim woman does not have the right to marry a man of another religion in France. But, Audit notes, such marriages are in fact recognised in France.

French gay rights activists say they plan to hammer out a joint strategy to challenge the little-known exception to the gay rights law. "We know it will be long, but this is unacceptable,” said Colomb. “We cannot let this continue.”

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