France is to allow gay marriage, but unlike England, its courts are not prepared if the union ends in divorce
On 23 April, the French Parliament voted ‘Oui’ by a decisive majority to allow gay couples to wed. The decision ushers in a new era for the mainly Catholic country, after furious controversy. It follows 13 other countries with New Zealand and Ireland soon to join the club.
Adoption by same-sex couples will be permissible in France, at long last in the eyes of those familiar with the Golombok research, which 30 years ago found that children brought up in loving, supportive gay households do as well as anyone, and it is social stigma that causes problems. For some in France, the new law does not go far enough, especially since same sex surrogacy remains illegal.
There is no international convention governing recognition of overseas gay marriage or divorce. Each country tackles the issue in its own way. The civil and property rights of gay marriage partners may or may not be recognised depending on where they are. In Italy, treatment of tax, property, pensions and inheritance for gay couples is different. Civil partners living in a state where civil partnership is not recognised or cannot be dissolved are stuck with no special status.
English courts will recognise a gay marriage entered overseas under the Civil Partnership Act 2004. The parties will generally be entitled to the same rights and subject to the same duties as if they had tied the lovers’ knot in England.
Gay divorce law is in its infancy all over the world. In England, the court has a wide power to make financial arrangements regarded as fair as with divorcing heterosexual spouses. If the gay couple live in France, and have no right to divorce in England, the deal on dissolution can be hopelessly uncertain. The French will in many cases apply the law relevant to the overseas gay marriage. But whose applicable law is that? What if the civil partnership took place in England, one party was German and the other Spanish and there are trust assets in Jersey in the names of neither? The French judges do not tackle financial applications as we approach them.
Attempts to apply English civil partnership law in France may be bizarre if it ever gets that far.
Don Gallagher, in the first high-profile Court of Appeal case in 2012, received £1.5m after an 11-year relationship during which most of the money had been earned by his partner Peter Lawrence, a City analyst, while Mr Gallagher combined his acting work with a ‘home making’ role.
The French courts are not geared to the generous awards that we see here. A party seeking dissolution of their gay marriage and a
financial settlement in France may come off badly compared to England. Better to get to England and live here long enough to take proceedings here. Warring couples want their dispute heard where they will come off best. Family lawyers strongly encourage settlement except in extreme cases but, as yet, the unresolved legal issues make more litigation in England as well as France inevitable.