Will it soon be forbidden to marry an undocumented person in France? This is the measure that the Senate will study on February 20, following a bill proposed by Stéphane Demilly, a centrist senator from the Somme, a department in northern France. While Gérald Darmanin and Bruno Retailleau, respectively Ministers of Justice and of the Interior, voiced support for the measure, it remains divisive in the National Assembly.

For Zahia Hamdane of the leftwing party France Unbowed, the bill "is a serious attack on individual freedoms": "Who are we to decide that love depends on administrative status?" she said in an interview with the television channel France3.

Can the proposal succeed? What is the current situation?

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The current regulations

It is entirely possible to get married in France as an undocumented person, whether it is with a French national or foreigner, whether they are regularized or not. The European Convention on Human Rights (ECHR) – of which France is a signatory – states: "Men and women of marriageable age [18-years-old in France, editor’s note] have the right to marry and to found a family, according to the national laws governing the exercise of this right."

"No one can be prevented from getting married, regardless of their religion, skin color, or administrative situation. Everyone can therefore get married regardless of their nationality, even if their spouse is undocumented," wrote Bruno Bonachkian, a lawyer specialized in immigration law in an explainer on his website.

The mayor of the municipality in which the marriage is planned, cannot oppose the union. In addition, no proof is required concerning the administrative situation of the future spouses.

The procedure is therefore the same as for a classic civil marriage in France:

• Submission of the file to the town hall for publication of the banns
• Verification of the supporting documents by the civil registrar (extract of birth certificate, proof of identity, list of witnesses and proof of address) --Editor's note, some undocumented persons may have trouble obtaining these documents, as without a birth certificate or without the right to stay in a country, it may be difficult to have proof of a fixed address too.
• Celebration of the marriage once all the conditions have been met

What the administration can do

Yet in recent years the authorities have increased the number of measures to combat "fake marriages", unions whose primary objective is regularization. "While it is therefore possible in theory that a marriage between a French national and an undocumented foreigner is possible, we must be aware that these unions can sometimes be an obstacle course," according to Bonachkian.

In case there are doubts about the sincerity of a union, the mayor of the city chosen for the marriage can send the future spouses' file to the public prosecutor. An investigation can then take place to determine whether it is a genuine marriage or a fake one.

The investigation solely aims to clarify if the marriage is fraudulent, without inquiring into the administrative status of one of the applicants.

Getting married does not necessarily lead to regularization. Other conditions are necessary to obtain a residence permit, in addition to marriage with a French person.

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Is prohibiting marriages involving undocumented persons possible?

The eventual regularization of an undocumented person through marriage is the argument used by Demilly to justify his bill. Yet the senator’s project is unconstitutional.

The Constitutional Council in a 2003 decision decreed that respect for the right of marriage was an “individual right protected by Articles 2 and 4 of the Declaration of 1789". This constitutional right therefore contradicted "the irregular nature of a foreigner's stay being an obstacle, in itself, to the marriage of the person concerned", as the French television channel Public Sénat noted. The council made the same decision in 1993, when a similar measure was proposed.

To avoid further obstacles, Darmanin proposed a possible solution. The final decision on marriage after investigation would be made by mayors rather than by public prosecutors. "I am sure that your assembly will find ways to make this text constitutional," he said. "In particular by allowing – and I am in favor of it – that if the prosecutor does not respond, the mayors get to decide, whereas today it is the other way around."