Affirming the right to lead a normal family life does not have the right to marry for same-sex couples, the decision published 28 January 2011 by the Constitutional Council reminds us of the virtues of PACS (1 ) and the basics of constitutional law (2). It remains surprising (3).
(1) The virtues of PACS
Conduct a normal family life without being married, this is the promise of PACS (Civil Solidarity Pact).
Governed by articles 515-1 and following of the Civil Code, the PACS can enjoy the benefits of including economic life of the couple, such as taking into account household income, exemption from inheritance tax, the quality of entitlement in the social or the right to transfer the lease in case of death.
And since the PACS does not surviving heir, a simple holograph will address them.
On the descent from the father, it will suffice to establish before birth or after an act of recognition.
In summary, ACAP is as a marriage without its main disadvantage: the divorce proceedings, accompanied by a compensatory allowance.
With now more than 90% of heterosexual couples among the PACS, PACS demonstrates that force can be considered preferable to marriage.
It is therefore not a wedding on the cheap but a contract to lead a normal family life.
The Constitutional Council can only be approved for the reminder.
(2) The basics of constitutional law: Article 34 and the principle of equality
Under Article 34 of the Constitution, the law lays down rules on "state and capacity of persons, matrimonial regimes, inheritance and gifts. With good reason, the Constitutional Council concludes that it is incompetent in matters of marriage and refers the matter to Parliament.
It was also necessary that the existing law did not bear not affect the rights and freedoms guaranteed by the Constitution.
was precisely what the petitioners argued, the law would impose an unequal treatment to same-sex couples. It ignores that in the principle of equality.
It is always dangerous to rely on that principle.
According to a recital-classical architecture (Decision No. 87-232 DC of 07 January 1988 - Recital 10), the constitutional court said that "the principle of equality does not conflict with what Parliament rule differently in different situations or that departs from equality on grounds of general interest provided that in either case, the difference of treatment which results in either report directly subject to the law that establishes ".
Thus, three "parameters" allow Wise to justify their decision:
▪ the notion of different situations
▪ reasons of general interest
▪ the compared with the object of the law.
do not need to be a genius to see how the principle of equality is flexible: easily, it can lead to justify a posteriori a priori a desired result!
(3) A decision, however surprising
The QPC (Question Constitutionality of Priority) is in fashion!
Now everyone has the right to request verification of the conformity of legislation with the Constitution.
This right remains regulated and controlled: the impugned law must condition after trial The question should not have been raised before and, moreover, it must be considered serious.
The Council of State and the Court of Cassation were responsible for this control.
And that's where the surprise is born!
How and why the Court of Cassation could she think that the question posed in this case was serious while the response of the Constitutional Council could be little doubt?
Michael Pasotti - Lawyer of Paris - Paris, 30/01/2011
Michael Pasotti - Lawyer of Paris - Paris, 30/01/2011
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