By a decision of 28 January 2015, the French Cour de Cassation ruled that a Moroccan citizen is entitled to enter into a same-sex marriage in France notwithstanding that the Franco–Moroccan Convention of 10 August 1981, subjects the validity of marriage to the law of the spouse’s respective nationality which, in terms of Morocco, does not permit such a union.

The question arose in the wake of the troubled adoption of the so-called "marriage for all" and it is probably premature to draw general conclusions but the decision that internal public policy overrides an international treaty could set a precedent.

The question may arise again as early as August this year with the entry into full effect of the EU Succession Regulation (EU) 650-2012.

In identical terms to the Franco-Moroccan Convention (Article 4), the EU Succession Regulation (EU) 650-2012 (Article 35) provides that the law of one country may be excluded when it appears “manifestly incompatible with the public policy (ordre public) of the forum.”

Therefore, it could be argued that the French rules of forced heirship (réserve légale) traditionally regarded as of public policy may well prevail over freedom of disposal resulting from a choice of law under Art 22 of the Regulation.

It is however unlikely that the French judicial institution will react as quickly on this somewhat less politically sensitive issue and several years may elapse before a decision of the Cour de Cassation is available, which itself would then be subject to the jurisdiction of the Court of Justice of the European Union.

Download PIL - French supreme jurisdiction which decrees that internal public policy should prevail over an international treaty.

Patrick Delas