Conference on "The Right of Homosexual Couples: A Tenable Position?"

27 November 2025 (One Monte-Carlo)

99 AVOCATS ASSOCIÉS organised a Conference devoted to the place of same-sex couples in Monegasque law and prospects for change.

* * *

Introduction

Speaker: Thomas BREZZO, President of the Monegasque Parliament

I - The state of law in Monaco: the pretext of public order

Speakers: Thomas GIACCARDI and Sarah FILIPPI, Defence Lawyers at the Court of Appeal of Monaco - Rozenn LEBOHEC ICYK, Head of the Civil Law Department at 99 AVOCATS ASSOCIÉS

II - The French example through the lens of the European Court of Human Rights (ECHR)

Speaker: Patrice SPINOSI, Lawyer at the French Conseil d'Etat and Cour de cassation

III - An achievable goal?

Speakers: Thomas GIACCARDI and Sarah FILIPPI, Defence Lawyers at the Court of Appeal of Monaco

* * *

Issues addressed

— Recognition in Monaco of same-sex marriages validly contracted abroad:

• To date, the Principality does not recognise same-sex marriages legally contracted abroad, nor the legal rights of same-sex couples married abroad.
• The Monegasque Supreme Court (Court of Review, 18 March 2024) raised the objection of public policy (exception d'ordre public). On the basis of this mechanism of private international law, the recognition of same-sex marriage was ruled out on the grounds that it conflicts with the prevailing concepts of the Monegasque legal system, which only allows marriage between persons of different sexes.
• The Court of Revision considers that Articles 8, 12 and 14 of the European Convention on Human Rights (ECHR) do not impose a positive obligation to open marriage to same-sex couples and that the civil partnership contract (common life contract "contrat de vie commune") for same-sex partners (resulting from Law No. 1.481 of 17 December 2019) offers adequate legal recognition and protection that respects the sexual orientation of these couples and their private life.
• In doing so, the Court of Revision overturned the Court of Appeal's ruling of 28 September 2023, which had considered that the prohibition of same-sex marriage was not "currently an intangible value in the Principality justifying the application of the public policy exception to a validly contracted marriage (...) abroad, particularly without fraud (reference made in the ruling to the legitimate interest of the State in ensuring that its choices are not misused)".

— Recognition of same-sex marriage under Monegasque law:

• Same-sex couples may enter into a common life contract (CVC) in order to organise their life together. A CVC registered in Monaco is not mentioned in the civil status records of the partners. The CVC allows to benefit from certain rights attached to partner status in areas such as employment, housing, health and social security, and taxation.
• However, a CVC does not grant the same rights and obligations as heterosexual couples through marriage, which is recorded in the civil status records. It does not allow couples to claim the respective rights and duties of spouses. It cannot have the purpose or effect of undermining the rules relating to inheritance (it does not confer the status of heir designated by law), filiation (through adoption or medically assisted procreation, for example), parental authority, guardianship (tutelle) or family rights.
• In its aforementioned ruling, the Court of Appeal relied on the recommendations of the 6th cycle Report on Monaco by the European Commission against Racism and Intolerance (ECRI) of the Council of Europe, adopted on 29 March 2022 and published on 9 June 2022: "ECRI recommends that the Monegasque authorities review existing legislation with a view to offering new arrangements to same-sex couples. In this context, the authorities should reconsider whether there is an objective and reasonable justification for any differences in the regulation of same-sex couples and oppositesex couples (including couples who have married abroad) and abolish any such unjustified differences."

The conference highlighted the legal obstacles and challenges faced by same-sex couples under current law and case law.

A comparative law perspective was offered, using the examples of France and countries with particularly strong religious traditions (e.g. Malta, Israel...).

The Conference also provided an opportunity to analyse and discuss the recent and important judgment of the Court of Justice of the European Union (CJEU) (Grand Chamber), delivered on 25 November 2025 (on a preliminary ruling) in Case C-713/23 Jakub Cupriak-Trojan and Mateusz Trojan (spouses in question) v Wojewoda Mazowiecki (Voivode of Mazovia, Poland).

Although the Principality of Monaco is not a member of the EU and is therefore not subject to the authority of CJEU rulings, the CJEU's reasoning concerning public policy, national identity and fundamental rights in particular remains relevant to Monegasque law:

• The CJEU ruled on a request for recognition and transcription in the Polish civil registry (which does not provide for same-sex marriage) of a marriage certificate issued in Germany to two European Union citizens (a Polish national and a dual German-Polish national).
• The CJEU held that EU Member States are obliged to recognise, for the purposes of exercising the rights conferred by EU law (freedom of movement and residence, right to respect for private and family life), the marital status legally acquired in another Member State.
• As things stand, the rules governing marriage fall within the competence of the Member States, which EU law cannot infringe. The obligation to recognise the marital status of persons of the same sex does not disregard national identity or threaten the public order of the Member State, since it does not require that State to provide for same-sex marriage in its national law.
• EU Member States have discretion in choosing the arrangements for recognising same-sex marriage, with the transcription of a foreign marriage certificate being only one of the possible arrangements. However, these methods must not make such recognition impossible or excessively difficult, nor must they discriminate against same-sex couples on the basis of their sexual orientation, which is the case when national law does not provide for a method of recognition for such couples that is equivalent to that granted to opposite-sex couples.
• In this case, since transcription is the only means provided for by Polish law for a marriage concluded in another Member State to be effectively recognised by the Polish administrative authorities, Poland is obliged to apply it without distinction to marriages between persons of the same sex or opposite sex.
• The preliminary question referred by the Polish Supreme Administrative Court (Naczelny Sąd Administracyjny) was as follows: "Must the provisions [on the right to move and reside freely within the territory of the Member States] of Article 20(2)(a) and Article 21(1) TFEU, read in conjunction with Article 7 [Respect for private and family life] and Article 21(1) [Non-discrimination] of the [Charter of Fundamental Rights] and Article 2(2) of Directive [2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States] be interpreted as precluding the competent authorities of a Member State, where a citizen of the Union who is a national of that State has contracted a marriage with another citizen of the Union (a person of the same sex) in a Member State in accordance with the legislation of that State, from refusing to recognise that marriage certificate and transcribe it into the national civil registry, which prevents those persons from residing in the State in question with the marital status of a married couple and under the same surname, on the grounds that the law of the host Member State does not provide for same-sex marriage?"
• Spouses who are EU citizens enjoy freedom of movement and residence within the territory of the Member States and the right to lead a normal family life when exercising that freedom and when returning to their Member State of origin (Poland in this case). In particular, they must be certain that they will be able to continue the family life they have built in a host Member State (Germany in this case), in particular through marriage, upon returning to their Member State of origin.
• The refusal to recognise the marriage of two EU citizens of the same sex, legally concluded in a host Member State where they have exercised their freedom of movement and residence, may cause serious administrative, professional and private inconvenience, forcing the spouses to live as single persons upon their return to their Member State of origin. Such a refusal is contrary to EU law: freedom of movement and residence (TFEU and Directive), and the fundamental right to respect for private and family life (Charter of Fundamental Rights).

* * *