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Frédéric Martel is a researcher at the Ecole des hautes études en sciences sociales (EHESS) [a prestigious higher education institute specializing in social sciences], and author of "Le Rose et le Noir: les homosexuels en France depuis 1968". The opinions expressed in this article are those of the author.

TIn recent years, recognition of the rights of unmarried couples, including homosexuals, has become a public concern in most Western democracies. Depending on their history, culture and obviously their existing legislation, countries have chosen to address this concern in their own ways.

France has recently brought in an Act, which by creating the Pacte civil de solidarité (PACS – Civil Solidarity Pact) offers legal status to all unmarried, heterosexual and homosexual couples. Since its inception (the Act entered the statute books on 13 October 1999), 75,000 people have signed a PACS.

What led to this Act? What problems was it intended to solve? What key legal developments has it brought? What are its limits? Lastly, what place does this Act occupy in the debate about the French Republican model?

Origins of the PACS

There is always an element of mystery about how new legislation gets onto the political agenda, and the PACS is no exception. It is difficult to find a guiding thread in the history of the PACS, along the road from 1992 to 1999, from the first draft of the Bill, the Contrat d'union civile (Civil Union Contract), to the Contrat d'union sociale (CUS - Social Union Contract) and then to the PACS itself. How, in the space of seven years, was it possible for such a ground-breaking Bill not only to be presented, debated and adopted, but also to metamorphose from an unpopular and anxiety-inducing piece of legislation into a symbolic Act? To some extent, the mystery remains.

To try to understand how the PACS came about, we could begin by looking at problems which unmarried couples used to face and describing the social forces which were mobilized in support of this legislation during the 1990s. But before that, it is necessary briefly to review the legal position of homosexuals in France.

Legal position of homosexuals

Prior to 1981, there was still legal discrimination against homosexuals in French law. The age of consent was 15 for heterosexuals and 18 for homosexuals, legislation on civil servants (who had to be of "good morals") and tenants (who had to conduct themselves "as good family men") was implicitly anti-homosexual and the legislator’s lack of interest was in practice exacerbated by a variety of police checks, opening of files and prohibitions on places and films. On his election as President in 1981, François Mitterrand took steps to repeal all this legislation, establish full equality as regards the age of consent (set at 15 for all by the 1982 Act) and make the law neutral from the point of view of sexuality. Since then there has no longer been discrimination against homosexuals as such (who are no longer in fact in keeping with Republican tradition, recognized as such). Republican equality, regardless of sexual orientation, was recognized for individuals but not for couples.

The law and unmarried couples

Until the adoption of the PACS legislation, unmarried couples, regardless of the partners’ genders, had no legal recognition in France. Although case law had gradually taken account of the existence of heterosexual partners during the 1970s and 1980s and acknowledged some of their rights (in areas such as social security and housing), no general legal status had been drawn up for them. Homosexual couples were in particular excluded from these changes since they could not be considered genuine partners as they were unable to marry (following established case law of the Court of Cassation, France’s highest judicial authority).

During the AIDS epidemic, this shortcoming of the law and case law led to serious injustices: AIDS sufferers were unable to benefit from their partners’ social welfare cover or transfer leases; some homosexuals were rejected by the families of sick or deceased partners, saw their hospital visiting rights curtailed, with many excluded from funeral ceremonies.

Mobilization of associations [not-for-profit organizations] in support of the PACS

Faced with these concrete problems, associations – especially the Collectif pour le CUS et Aides (AIDS prevention federation) - and National Assembly deputies pressed for an Act recognizing all unmarried couples, whatever the partners’ genders. Influential intellectuals, feminist and human rights associations and left-wing political parties gradually rallied to the cause in 1994 and 1995, followed in 1996 by former ministers. Like ripples in a pond, the idea of legal recognition for unmarried couples spread and gained support, ably assisted by the press up to the 1997 general election. Admittedly, homosexual tolerance had also increased greatly since the 1970s.

1. Results of public opinion polls on homosexuality in France carried out for media organizations 1973-1997

	L'Express poll December 1973	Elle poll January 1981	GI poll December 1987	Le Nouvel Observateur poll October 1987	Le Nouvel Observateur poll June 1997
A disease which has to be cured	42	34	28	27	23
A sexual perversion which has to be fought against	22	24	19	24	17
An acceptable lifestyle	24	29	41	36	55
No opinion	12	13	12	13	5
	100%	100%	100%	100%	100%

In 1997, three different proposals for new legislation were competing: the sociologist Irène Théry proposed a comprehensive Bill on cohabitation - including homosexual couples, the legal expert Jean Hauser supported minimalist legislation in the form of a PIC (Common Interest Pact), while National Assembly deputies were rallying round the Chairman of the National Assembly Committee responsible for reviewing legislation, the deputy Catherine Tasca, in support of a Bill which in February 1998 became known as the PACS. This new Bill, improved from a legal point of view, was finally adopted by the government just before summer 1998. It gave the green light to discussion of the Bill in the autumn session.

The ground-breaking PACS Bill was debated for around one hundred and twenty hours in Parliament and the initial draft amended: we shall confine ourselves to looking at the main innovations introduced by the Act.

Definition of the PACS

Article 1 of the Act states that the PACS is "a contract concluded between two physical persons who have reached the age of majority, of different or the same gender, for the purposes of organizing their life in common". The notion of a voluntary "contract" was preferred to the notion of "recognition" which is weaker from the point of view of the contracting parties’ commitment. Concurrently, France's legislators decided to define the notion of cohabitation as a "de facto union, in which two persons of different or the same gender living as a couple, live together in a stable and continuing way" (Article 3) and to include it in the Code Civil.

Main legal effects of the PACS

Persons bound to each other by a PACS offer each other "mutual and material support". They are taxed jointly (three years after signing the PACS) and are entitled to an allowance of FF 375,000 in respect of capital transfer tax [includes inheritance tax] (Articles 4 and 5).

A partner with no social welfare cover benefits, where appropriate, from the social welfare cover of his or her partner (Article 7), although social security benefits and minimum social welfare allocations are calculated - in the same way as for married or cohabiting couples - at the "couple" rate and not at the "individual" rate as soon as people have entered into a PACS. The PACS is taken into account for housing purposes and any person under a PACS who has not jointly signed a lease is automatically entitled to have the lease transferred to him/her (Article 14). The provisions of the Labour Code on rights to leave and exceptional authorizations of absence for family reasons are extended to the co-signatory of the PACS (Article 8). The existence of a PACS is taken into account for postings of public servants (Article 13).

Lastly, for the purposes of obtaining a residence permit for a foreign partner, the conclusion of a PACS is "one of the elements for assessing personal connections in France" (Article 12).

These various rights and duties, whose exact scope and extent cannot be covered in this short paper, undoubtedly mark a significant change in French civil law. They nevertheless have limits that have been criticized by associations.

Limits of the PACS

Since the introduction of a concrete and tangible framework, several proposals have been put forward to correct the handful of legal shortcomings of the Act and thereby place it on a permanent footing. There has been criticism of the three-year waiting period before the couple are taxed jointly and of the different sums exempted from inheritance tax [which depend on whether the deceased partner died before or after 1 January 2000]. The conditions which have to be fulfilled in order to obtain a residence permit and become naturalized have also proved controversial. Lastly, there have also been calls for a clarification of the system of co-ownership and, in time, the PACS may well provide its signatories with genuine status as heirs – which is not the case at present.

PACS and family law

Although it therefore provides unmarried couples with significant rights and has some limits, the PACS does not change the family law situation. From this point of view it is a neutral Act. It does not modify the rules on lawful descent or adoption or those on medically-assisted reproduction or parental authority. In the case of lawful descent, the PACS has no effect at all; the same is true of adoption since, in the same way as for couples living together, two people who have signed a PACS cannot adopt (although there is an adoption procedure for single people).

It is interesting, nearly two years after the formal adoption of the Act, to look at the initial effects of the PACS. Close on 75,000 people have entered into a PACS and most French people now seem to understand and approve of this new legislation: 70% are in favour according to a SOFRES poll in 2000.

Support for the PACS

September 1998 - September 2000

Percentage of people questioned who strongly or generally support the PACS

September 1998 (IFOP poll)	49%
June 2000 (IFOP poll)	64%
September 2000 (IFOP poll)	70%

The PACS has therefore met a real need in our society. Abroad, the PACS has also gained a following. The German Parliament is debating a Bill along the lines of our legislation and, in the United States, the State of Vermont has decided to grant rights to homosexual couples using its own model, a kind of "American-style PACS". This is an example which, following the repeated failures of referenda on gay marriages, could spread to other US States.

Since its adoption, over and above these – revealing – figures and foreign examples, the PACS has had a whole range of effects not all of which were expected by either supporters or opponents. The initial effect of the PACS has primarily and obviously been to grant rights to couples formerly without them. Since then it has had an increasing number of social repercussions, for instance in the CPAM (Primary Social Insurance Fund), Air France and Electricité de France (EDF), etc. Countless local authorities, firms, trade unions and administrations are changing their attitudes and welcoming PACS couples. Following on from the PACS, the government has got anti-discriminatory legislation passed in the labour law area (Article 122-45 of the Labour Code now prohibits any discrimination on grounds of "sexual orientation").

The PACS and the Republic

Another effect of the PACS has been to make the "Republic" move on the issue of identity. The French position needed to be changed to make it less "inhospitable" to difference. As in the case of gender equality, but with its own original approach, the PACS is proactive legislation not only ensuring tolerance, but also rights for homosexuals in a Republic which has up to now been hermetically sealed against difference. The PACS symbolizes an active acceptance of difference, rather than mere toleration of it, i.e. giving equal recognition to homosexual and heterosexual couples.

In substance, the PACS is a novel illustration of what could be termed a French-style "practical universalism" which is very different from the "abstract universalism" which has long prevailed in France. In this respect, the PACS is perhaps a turning point in our legal and social history.

On the legal aspects of the PACS:

Pillebout, Jean-Francois, Le PACS, Litec, 2000

On the history of the PACS:

Martel, Frédéric, Le Rose et le Noir: les homosexuels en France depuis 1968, Seuil, Coll. Points, 2000. (American translation: The Pink and the Black: Homosexuals in France Since 1968, Stanford University Press.)

On public opinion on homosexuality and the PACS:

SOFRES, Ed. Olivier Duhamel and Philippe Méchet, L’Etat de l’opinion 1998, Seuil, 1998, and L’Etat de l’opinion 2001, Seuil, 2001.

For further information:

The text of the Act on the PACS can be found at www.legifrance.gouv.fr