The PACS does not “accomplish the task of filiation,” it excludes it. There is no equivalent to the rule that “the child conceived or born in marriage has the husband for father.” A man has to acknowledge his civil partner’s child to establish filiation, or he may decline to do so. Hence, whilst a PACS imposes a duty of « loyauté » [loyalty], there is no duty of fidelity, as there is in marriage.

That is the most significant difference between a marriage and a PACS and grounds the contention that the sex difference is essential to marriage, but irrelevant to a PACS.

All your comments are well received. However, none of them contradict the tremendous gulf which seems to exist between French jurists on the one hand and the French people on the other regarding the status of marriage as a “pillar” of French the Republic. French jurists seem to be trying to preserve an institution which the masses appear less and less interested in entering. If the PACS accomplishes the task of filiation as well as does marriage, then why are members of the French legal system hanging on to marriage?

The growing popularity of the PACS seems to have had little impact on the rise of births outside marriage. In 1979, they accounted for 10.03% of births. By 1989, this had risen to 28.2% and in 1999, the year the PACS was introduced, the figure was 41.7%. In 2009, the figure was 52.9%.

A significant factor is the growth in the number of second and subsequent children born outside marriage. The birth of a child is no longer a trigger for marriage.

It is important not to equate birth outside marriage with single parenthood. 85% of children under 15 live with both parents and some 82% of children born outside marriage are recognized by their fathers within one month; 94% of these are living with both parents. Of the nearly 420,000 children born in 2009, only some 15,000 (3.6%) have not been recognised. This is about the same number as in 1960, when only 6% of births were outside marriage.

The PACS is popular with opposite-sex couples for three reasons: (1) they do not require judicial proceedings to dissolve them (2) they do not limit the power of disposing of property by will. Accordingly, they are often preferred by couples, one or both of whom has children from a previous union (3) there is no obligation of financial support of one’s partner’s parents, as there is in marriage.

Marriage remains popular with the rich and the religious. A spouse can be provided for out of inherited property, which otherwise passes automatically to the next-of-kin, will or no will; a civil partner cannot.

You are right to call attention to the PACS [« Le pacte civil de solidarité »] or civil union.

One important effect of the PACS, about 90% of which involve opposite-sex couples, has been to focus attention on what precisely is the difference between a PACS and a marriage.

In 2005, the French Senate did so, at least by implication, in the following terms: “Preserving the presumption ” is est pater quem nuptiae demonstrant ” – marriage points out the father, [Dig. 2, 4, 5; 1] adopted in all European legislation as Ms. Frédérique Granet-Lambrechts, professor at the Robert Schuman University of Strasbourg, told your reporter, Article 312 of Civil Code provides that a child conceived or born during the marriage has the husband for its father.

The presumption of paternity of the husband rests on the obligation of fidelity between spouses and reflects the commitment made by the husband during the celebration of marriage, to raise the couple’s children. The report presenting the order to the President of the Republic rightly points out that ” it is, in the words of Dean Carbonnier, the ‘heart of marriage,’ and cannot be questioned without losing for this institution its meaning and value.”” No similar rule applies to a PACS.

To summarise the view generally adopted by the jurists and the courts (1) Mandatory civil marriage, makes the institution a pillar of the secular Republic, standing clear of the religious sacrament (2) The institution of republican marriage is inconceivable, absent the idea of filiation, enshrined, not in Church dogma, but in the Civil Code (3) The sex difference is central to filiation.

It is significant that, in a country so committed to the principle of laïcité as France, no one has suggested that such views are either the result of religious convictions or an attempt to import them into the interpretation of the Code.