sign in sign up
<<
Home , Civil marriage

Mandatory civil according to Swiss law: Superfluous historical remnant or building block in the fight against forced ?

René Pahud de Mortanges/ Barnaby Leitz 3

UNIVERSITÄT FREIBURG RECHTSWISSENSCHAFTLICHE FAKULTÄT AV. DE L’ 20, CH-1700 FREIBURG Mandatory civil marriage according to Swiss law IR-Paper 3/April 2021

Mandatory civil marriage according to Swiss law: Superfluous historical remnant or building block in the fight against forced marriages?

René Pahud de Mortanges/Barnaby Leitz*

In the 19th century, the prohibition of religious Im 19. Jahrhundert hatte das Verbot religiöser prior to state marriages had the objec- Hochzeiten vor staatlichen Ehen das Ziel, das tive of enforcing the right to marriage and pre- Recht auf Eheschliessung durchzusetzen und venting discriminatory practices, particularly diskriminierende Praktiken, namentlich der ka- those of the . While this is no tholischen Kirche, zu unterbinden. Letzteres longer pertinent, mandatory civil marriage has a scheint heute obsolet geworden, doch hat das new raison d'être in today's age of migration. The Voraustrauungsverbot im heutigen Migrations- state thereby requires and ensures that marriages zeitalter eine neue Existenzberechtigung. Der in should be entered according to Staat verlangt und stellt damit sicher, dass Ehen state law and its underlying principles. This also in der Schweiz nach staatlichem Recht und den impacts how those couples who live more in line zugrundeliegenden Prinzipien geschlossen wer- with religious and cultural ideals than others den. Dies wirkt sich auch auf das Eheverständnis view marriage. However, for mandatory civil von Paaren aus, die mehr im Einklang mit religi- marriage to fulfil its raison d’être, its scope of ösen-kulturellen Vorstellungen leben. Damit das application de lege ferenda must be adapted to Voraustrauungsverbot ihrer Existenzberechti- today's diversity in . Furthermore, gung gerecht werden kann, muss allerdings sein its enforceability must be improved. Anwendungsbereich de lege ferenda der heuti- gen eherechtlichen Vielfalt angepasst und seine Durchsetzbarkeit verbessert werden. Content

Introduction 2 1. Historical background 2 2. Content and enforcement 3 3. Religious marriage 4 3.1. Christianity 5 3.2. Islam 5 3.3. Buddhism 6 4. Comparative legal analysis 6 4.1. 6 4.2. 7 4.2.1. Forms of marriage 7 4.2.2. Questionable practices 8 4.3. England 9 5. Conclusion: legitimacy and limits of mandatory civil marriage in the age of migration 10

* About the authors: René Pahud de Mortanges: Professor of Legal History and Canon Law at the Faculty of Law of the University of Fribourg and Director of the Institute of Law and . Barnaby Leitz: Graduate assistant to Prof. René Pahud de Mortanges at the Chair of Legal History and Canon Law at the University of Fribourg.

We would like to thank Dr Kyriaki Topidi for reviewing, and Andrea Rotzetter and Saskia Thomi (both at the Chair of Legal History and Canon Law at the University of Fribourg) for formatting and proofreading the article.

1 IR-Paper 3/April 2021 René Pahud de Mortanges/Barnaby Leitz

Introduction legal-historical, religious and comparative perspec- tive so that the significance of Art. 97 para. 3 of the In September 2017, Claudio Zanetti, at the time Swiss Civil Code can be better assessed. By this, it member of the Swiss parliament, submitted a par- wants to contribute to the discussion on the state's liamentary initiative with the aim of abolishing role in regulating marriage. First, the paper explains mandatory civil marriage by the state, stipulated in the norm's historical background (section 1), its area article 97 para. 3 of the Swiss Civil Code1. Under of application today, and how it is enforced (section this provision, a civil marriage must take place be- 2 and 3). Next, a comparative review of the law out- fore entering into a religious marriage. According lines the questions or problems that arise in coun- to Zanetti, purely religious blessings should also be tries that do not have mandatory civil marriage (sec- possible without prior state marriage ceremonies. tion 4). Finally, based on the insights gained, we Indeed, if a secular can be established aim to answer whether there is a need today to ad- without further ado today, why not a purely reli- here to mandatory civil marriage (section 5). gious marriage? Many have their form of marriage. In Germany e.g., mandatory civil mar- riage was abolished in 2009, due to the situation 1. Historical background faced by older couples who wanted to have their new partnership blessed by the church but did not A federal mandatory civil marriage in Switzerland want to marry under state law. The reasoning be- was first set out in the Federal Act of 1874 on the hind this was, for example, to not snub children Certification of Civil Status and Marriage 3. This from a previous marriage or to not lose widowhood law was a concretisation of Art. 54, which had been pension rights. introduced into the Federal Constitution in the same Claudio Zanetti withdrew his initiative in Sep- year and placed the right to marriage under the Con- 2 tember 2018 . But when forms of relationship are federation's protection. The reason being intense becoming increasingly pluralistic, the question re- fights between the Roman Catholic church and the mains why the state can monopolise marriage. Long state in Switzerland in these years about the role of gone are the days when the state had to defend itself Church and religion in public life. At the height of against the Roman Catholic Church's societal power this so-called Kulturkampf4, marriage law was re- and, subsequently, placed key areas of citizens' moved by the state from the regulatory authority of lives under the protection of state law. Would it not the Church. Up to this point, in some Catholic Swiss be a sign of respect for religions if they were granted cantons, marriage was regulated by canon law. regulatory autonomy in this area? Can we not trust Likewise, the revised constitution stipulated that the the ' mature judgment and let them decide determination and certification of civil status should for themselves when they want to make use of the now be the civil authorities' responsibility and that legal instrument of civil marriage with its protective ecclesiastical jurisdiction would be abolished (Art. effects and when they do not need them? Or are 53 of the Federal Constitution of 1874). Switzerland there other reasons today, for example, in the con- adopted a form of marriage introduced in text of migration, which make it advisable to main- tain mandatory civil marriage? This paper does not intend to take a position on the future of civil marriage law in general. It aims to provide relevant context on marriage law from a

1 Parliamentary initiative submitted by Claudio Zanetti: zuführen», https://www.parlament.ch/de/ratsbetrieb/su- “Keine Diskriminierung religiöser Eheschliessungen”, che-curia-vista/geschaeft?AffairId=20173693, visited on https://www.parlament.ch/de/ratsbetrieb/suche-curia-vista 09.02.2021. /geschaeft?AffairId=20170470, visited on 09.02.2021. 3 Cf. Bundesblatt der Schweizerischen Eidgenossenschaft 2 As well as Pierre-André Page, who withdrew his motion (BBl) 1875 I 105. „Aufhebung des Verbots, eine religiöse Eheschliessung 4 Cf. DIETER KRAUS, Schweizerisches Staatskirchenrecht, vor der Ziviltrauung durchzuführen“ on 09.02.2021. For Tübingen 1995, p. 39 ff. the text see, Pierre-André Page, «Aufhebung des Verbots, eine religiöse Eheschliessung vor der Ziviltrauung durch-

2 Mandatory civil marriage according to Swiss law IR-Paper 3/April 2021 with the Code civil of 18045 and already in force in other countries in Western Europe. In southern Eu- the cantons of and Neuchâtel before 1874. rope, where the Roman Catholic Church retained a The provisions at federal level were a result of strong influence well into the 20th century, mar- conflicts relating to mixed confessional marriages riage law continued to have a much more ecclesias- in several Catholic cantons. The Federal Constitu- tical character, in part, as we will see for Italy until tion of 1848 had introduced freedom of establish- today (see below, section 6.2). ment for members of Christian denominations. Re- formed people could now settle in Catholic cantons and Catholics in Reformed cantons. However, 2. Content and enforcement Catholics were prohibited by church law from en- tering into "mixed marriages"6. This was to ensure Today religious marriages are permitted in Switzer- that the children in these marriages would be bap- land but must not take place before civil marriage8. tised and raised in the Catholic faith. In order to im- Religious freedom is hence restricted in this re- plement the Catholic prohibition, various Catholic gard9. This restriction also applies to foreign natio- cantons had issued corresponding state laws. A ma- nals whose law of origin only recognises a religious jority of parliamentarians in the Federal Assembly marriage10. By presenting a family identity card or considered this to be misplaced. A federal law on marriage certificate, the bride and groom must mixed marriages passed in 1850 stipulated that the prove to the religious official (priest, minister, cantons were neither allowed to prevent the mar- rabbi, imam, etc.) that they are legally married. riage of a bridal couple of different denominations Without such a document, a religious may nor to make it subject to additional conditions7. This not take place11. was the prelude to subsequent federal legislation on A religious marriage has no legal effect, and the this issue, the federal law of 1874 and the manda- partners are still regarded as unmarried under Swiss tory marriage law of the Swiss Civil Code of 1912. law. The protective effects of the law do not apply. Secularisation of marriage law and the introduc- The rules of matrimonial property law are not appli- tion of mandatory civil marriage took place in Swit- cable; there is no obligation to provide mutual sup- zerland at about the same time as in Germany and port or post-marital alimony12. And children from purely religious marriages, for example, are not

5 considered marriage one of the "sacrements zum Schweizer Privatrecht: Personen- und Familienrecht civils". Accordingly, the Napoleonic legislation and subse- inkl. Kindes- und Erwachsenenschutzrecht (CHK), 3. Auf- quently the Code civil contains a civil marriage law. Since lage, Zürich 2016, N 4. it was already implemented in the revolutionary legisla- 9 CYRIL HEGNAUER, Zum Verhältnis von ziviler und religi- tion, modern civil marriage is actually the spiritual child of öser Trauung, in: Zeitschrift für Zivilstandswesen, Vol. the . The theoretical basis for this devel- 7/8, Bern 1997, p. 197. opment was the doctrine of the separation of two areas of 10 MICHEL MONTINI/CORA GRAF-GAISER, Kommentar zu marriage, the natural or civil contract and the sacrament, Art. 97 ZGB, in: Geiser, Thomas/Fountoulakis, Christiana which was first led by the doctrine of Gallicanism, then (eds.), Basler Kommentar: Zivilgesetzbuch I. Art. 1-456, adopted by Enlightenment philosophy and thus found its Basel 2018, N 3. way into the legislation of the French Revolution. Cf. 11 Ibid.; Cf. Bundesamt für Justiz, Direktionsbereich Privat- HERRMANN CONRAD, Die Grundlegung der modernen Zi- recht, Eidgenössisches Amt für das Zivilstandswesen vilehe durch die Französische Revolution. Ein Beitrag zur (EAZW), Religiöse Eheschliessung durch Verantwortliche neueren Geschichte des Familienrechts, in: Zeitschrift der religiöser Gemeinschaften in der Schweiz, Stand Savigny-Stiftung für Rechtsgeschichte. Germanistische 01.02.2012, https://www.bj.admin.ch/dam/data/bj/gesell- Abteilung, Vol. 67, Issue 1, p. 336-372. schaft/zivilstand/merkblaetter/ehe/mb-religioeseehe- 6 According to can. 1124 of the Codex Iuris Canonici of schliessung-d.pdf, visited on 09.02.2021. 1983, this prohibition still applies today. However, the 12 Cf. HEINZ HAUSHEER/THOMAS GEISER/REGINA AEBI- bishop or local parish priest may grant a dispensation if the MÜLLER, Das Familienrecht des Schweizerischen Zivilge- Catholic partner makes a sincere promise to do everything setzbuches: Eheschliessung, Scheidung, allgemeine Wir- possible to ensure that all his children are baptized and ed- kungen der Ehe, Güterrecht, Kindesrecht, Erwachsenen- ucated in the Catholic Church. schutzrecht, eingetragene Partnerschaft, Konkubinat, Bern 7 Cf. BBl 1850 III 719. 2014. N 3.20 ff. 8 STEFAN KELLER, Kommentar zu Art. 97 ZGB, in: Breit- schmid, Peter/Jungo, Alexandra (eds.), Handkommentar

3 IR-Paper 3/April 2021 René Pahud de Mortanges/Barnaby Leitz

subject to the presumption of (Art. military command. The first variant of the of- 252 of the Swiss Civil Code); the filiation is only fence, which is the only one that comes into con- with the mother, not the father. sideration here, presupposes that the offender An engaged couple who has grown up in Swit- pretends to be the holder of an office that they do zerland is probably aware that they have to get mar- not hold. Here, the religious official would have ried before the civil registrar if they want to estab- to deliberately give the impression that it was not lish a marriage valid under state law. However, per- only a ceremony with religious effect but that he sons from countries in which there are no state mar- or she was also authorised to officiate a marriage riages, but only religious marriages could at best be valid under state law. This would be conceivable mistaken about the actual circumstances. The reli- at best in migration constellations in which the gious ritual, unlike in their country of origin, does bridal couple lacks the most elementary not affect their civil status. knowledge of the Swiss legal system. How is mandatory civil marriage enforced? In - Article 292 StGB (contempt official orders) pre- the past, the Civil Registry Ordinance (Zi- supposes that the state has issued a concrete in- vilstandsverordnung ZStV) led to the imposition of struction of conduct to a specific person.16 This a fine of CHF 500 on the clergyman who celebrated would only come into question if a religious of- a religious ceremony knowing that there had been fice-holder repeatedly performed religious mar- no prior civil marriage. In the current version of Art. riages before or even without subsequent state 91 ZStV 13 however, the sanction under the Civil marriage ceremonies and the authorities now Registry Ordinance is no longer applicable. want to put a stop to it. A memorandum prepared by the Federal Office of Justice entitled "Religious Marriage by Persons In conclusion, Article 97, para. 3 of the Swiss Civil Responsible for Religious Communities in Switzer- Code is not a norm completely without sanction, but land"14 states that religious officials are threatened the applicable criminal law only offers a means of with criminal prosecution when unlawfully con- action in particular situations. If mandatory civil cluding religious marriages; it refers here to Articles marriage is really to be enforceable in normal cir- 271, 287 and 292 of the Swiss Penal Code (StGB). cumstances, there is a need for appropriate, ade- However, the cited penal provisions only apply in quate penal provisions. particular constellations: - Article 271 StGB (Unlawful activities on behalf of a foreign state) requires in paragraph 1 as a 3. Religious marriage constituent element of the offence that someone "without authorisation performs acts for a for- Clarification is then needed on the question of what eign state which are the responsibility of a public constitutes a religious marriage. The Swiss Civil office or civil servant". The act performed by the Code does not define this term, but rather presup- perpetrator must, by its nature or purpose, be poses it to be common knowledge. At the time of its characterised as an official activity in the interest genesis, wedding ceremonies in Christian commu- of a foreign state15. However, the religious offi- nities stood in the foreground: The Catholic, Angli- cial who performs a wedding ceremony usually can or Orthodox priest or the Reformed minister acts for his religious community, not for a for- asks the bride and groom to say, “I do” and blesses eign state. them. There is a prescribed liturgy for this in the - Article 287 StGB (usurpation office) penalises various churches, and these official acts are also en- anyone who unlawfully assumes an office or tered in a church register of marriage. However, the religious landscape has become much more diverse

13 Civil Status Ordinance (Zivilstandsverordnung ZStV) of Kommentar zu StGB, JStG, den Strafbestimmungen des 28 April 2004, SR 211.112.2. SVG, BetMG und AuG, Zürich 2013, N 7. 14 Cf. EAZW, (supra f.n. 11). 16 CHRISTOF RIEDO/BARBARA BONER, Kommentar zu Art 15 STEFAN FLACHSMANN, Kommentar zu Art. 271 StGB, in: 292 StGB, in: Niggli, Marcel Alexander/Wiprächtiger, Donatsch, Andreas (ed.), StGB Kommentar: Schweizeri- Hans (eds.), Basler Kommentar: Strafrecht II, Basel 2019, sches Strafgesetzbuch und weitere einschlägige Erlasse mit N 60 ff. and 72.

4 Mandatory civil marriage according to Swiss law IR-Paper 3/April 2021 in the last decades, also within the religious com- According to Islamic law, Muslim marriages can munities. Here follow some examples. take place without an imam being involved at all. The aforementioned threats of punishment of the Swiss Criminal Code, which are directed at reli- 3.1. Christianity gious officials, therefore do not apply. In the case of Today, certain churches allow the priest or minister Muslim marriages without the involvement of an to marry a (by state law) unmarried couple and bless imam, Art. 97 para. 3 of the Swiss Civil Code be- non-marital relationships. This is the case, for ex- comes an irrelevant norm. Marriages concluded ac- ample, when an older couple does not want to marry cording to religious rules can thus be conducted in but wants to place their relationship under God's practice without regard to state law. From the state's blessing ("pensioners' concubinage"). There is also point of view, it constitutes a concubinage; the pro- a church liturgy for such acts of blessing, which are tective effects of marriage law are not applicable. different from the conclusion of a marriage. This is Whether and to what extent Muslim marriages not covered by Art. 97 para. 3 of the Swiss Civil occur in Switzerland without prior or subsequent Code and does not have to be, since the couple does civil marriage ceremonies has not yet been empiri- not want the protective effects of state marriage. cally established.19 As shown below for England, this practice is not uncommon in other European 3.2. Islam countries. One can assume that in Switzerland, as elsewhere, there are marriages entered only into un- In Islam, marriage (nikah) is understood not primar- 17 der Muslim law, not under state law. It can also be ily as a religious act, but as a private legal act . assumed that this is not a phenomenon limited to and wife declare their willingness to enter Islam. In Muslim and Hindu countries, the primacy into marriage before witnesses. Witnesses are usu- 18 of religious marriage law has been preserved in ally two men or one man and two women . Hus- many places. The same applies to , where eve- band and wife also agree to the terms of a previously ryone marries according to the norms of the reli- negotiated marriage contract. This contract regu- gious community to which they belong20. In Leba- lates, among other things, the bride's gift (mahr), a non, civil marriage is legal, but it is rendered inac- share of the wealth that traditionally serves the tive by the power of religious groups21. The Otto- woman as material support in case of a subsequent man Empire, which covered large parts of the Mid- dissolution of the marriage. The marriage can take dle East until the First World War, had the place in a mosque and in front of an imam, but this system, which guaranteed members of the various is not mandatory. Religious acts such as quoting religious communities the application of their reli- Koranic texts may be part of the tradition, but do not gious marriage law 22 . In some places, this was have to be. Since extramarital sex is disapproved of adopted by the subsequent colonial powers in the in Islam, marriage is supposed to legitimise sexual form of the personal law system23. The nation-states relations. It therefore often takes place at a compa- that emerged in the after the Second ratively young age, which is one reason among World War also continued to do so. In many coun- others for marriages of minors. tries, additional state norms were enacted to im- prove women and children's position in marriage

17 JOSEPH SCHACHT, An Introduction to Islamic Law, Oxford 20 ANGELIKA GÜNZEL, Religionsgemeinschaften in Israel, 1964, p. 161. Tübingen 2006, p. 78 f. 18 PETRA BLEISCH, Islamisches Recht, in: Pahud de Mortan- 21 Cf. CHRISTIAN WEISFLOG, Neue Zürcher Zeitung (NZZ), ges, René/Bleisch Bouzar, Petra/Bollag, David/Tappen- Wo die Liebe zur Lüge zwingt – ein Paar kämpft um beck, Christian R., Religionsrecht, Zürich 2017, p. 212 ff. Gleichberechtigung in Libanon, https://www.nzz.ch/inter- 19 In the course of the research for this article, the authors national/das-bakterium-der-zivilen-heirat-ld.1472939, vi- asked members and representatives of various religious sited on 09.02.2021. communities whether they knew of any cases in which per- 22 MATHIAS ROHE, Das Islamische Recht: Geschichte und sons had been religiously married beforehand. All inter- Gegenwart, München 2011 p. 186. viewees answered this question in the negative. However, 23 Cf. WERMER ENDE/UDO STEINBACH, Der Islam in der Ge- the survey was not representative; a more in-depth survey genwart, München 2005, p. 214 ff. of the current situation would be desirable.

5 IR-Paper 3/April 2021 René Pahud de Mortanges/Barnaby Leitz

law. Furthermore, registration requirements were 4. Comparative legal analysis introduced. Privately contracted marriage must be reported to state authority to ensure legal cer- So far, we have tried to show the scope and enforce- tainty24. In principle, however, marriage is still un- ability of Art. 97 para. 3 of the Civil Code should derstood to be a private act. In India, marriage and be updated. However, we can only call for legisla- dissolution are purely private acts; the state does not tive action if there are good reasons to prevent have the resources to register marriages. When peo- purely religious marriages in Switzerland. That ple from these countries come to Western Europe, would be the case if these religious marriages pro- they are confronted with a very different under- duce relationships that are not acceptable from the standing of marriage. Problems of adaptation may point of view of fundamental rights, i.e., if they cre- arise as a result. ate the risk of infringements on the legal position on the more vulnerable part of a couple. A look at other countries that do not have the requirement of man- 3.3. Buddhism datory civil marriage provides illustrative insights. Islam and Hinduism emerged in a pre-state context and therefore contain their own rules for marriage25. 4.1. Germany In Buddhism, the situation is different. Only for the Buddhist communities of monks and nuns is there Like in Switzerland, the 1870s saw a political strug- a detailed set of norms and rules 26. In contrast, gle between the state and the Roman Catholic Buddhism hardly knows any legal norms for the Church in Germany. As a consequence, mandatory everyday life of laypeople. In particular, there is no civil marriage was introduced in 1875. This is re- Buddhist marriage law. There is neither a procedure flected in the German Civil Code (BGB). Accord- for a marriage ceremony suggested by the historical ing to § 1310.1 sentence 1 of the BGB, marriage is Buddha nor specific provisions on married life. entered into by the couple declaring before the re- Buddhists can arrange a ceremony in which Bud- gistrar that they wish to marry each other. The dhist teachings and symbols play a role or in which state's involvement through the registrar is intended a monk gives the blessing. In a Western context, to serve legal certainty and publicity and to ensure however, this cannot be seen as evidence for mar- the examination of the conditions and obstacles to riage. But is such a celebration then covered by the marriage. According to § 67 of the Law of Personal state's mandatory civil marriage? Status (Personenstandgesetz), it was an administra- tive offence if someone performed a church wed- Conclusion: In a time of substantial diversity in life- ding without the fiancées having previously de- styles and relationships in addition to a variety of clared at the registry office that they wanted to enter religions, the state's mandatory civil marriage is into marriage with each other. At the beginning of confronted with a multitude of varying constella- 2009, this provision was scrapped. The intention tions. What once seemed to be straightforward is no was to remove a relic from the time of the Kultur- longer so today. Not only the enforcement of man- kampf. Since then, the Catholic Church performs datory civil marriage requires reform, but also its church weddings without a before- scope of application. However, appropriate legal hand, for example for widowed Catholics depend- changes require an in-depth discussion of which ar- ent on a widow's pension from their first marriage27. rangements should be covered by mandatory civil The Protestant Church, however, rejects this. marriage and why. Following the influx of many refugees in 2015/16, German authorities were confronted with a completely different problem, namely the mar- riages of minors. In the Middle East, depending on

24 ROHE, (supra f.n. 22), p. 212 f. 27 Deutsche Presse-Agentur, Focus Online, Nur vor Gott: 25 On Hindu marriage law cf. WERNER MENSKI, Hindu Law, Wann die Trauung ohne Amt lohnt, https://www.focus.de Oxford 2003, p. 273 ff. /reisen/service/recht-nur-vor-gott-wann-die-trauung-ohne- 26 PETRA KIEFER-PÜLZ, What the Vinayas can tell us about amt-lohnt_aid_744022.html, visited on 09.02.2021. law, in: Redwood French, Rebecca/Nathan, Mark A. (eds.), Buddhism and Law, Cambridge 2014, p. 46-62.

6 Mandatory civil marriage according to Swiss law IR-Paper 3/April 2021 the country of origin, marriage is possible at a much 4.2. Italy earlier age than in Germany. There, as in Switzer- land, the age of adulthood is 18 years. What, how- 4.2.1. Forms of marriage ever, about minors who are already married? How In Southern Europe, the Catholic Church held sig- can religious marriages of minors in Germany be nificant political power for a long time; it remains 28 prevented in future? of great social importance. The Catholic Church ve- In mid-2017, the German parliament (the Bun- hemently opposed the introduction of mandatory destag) passed a Law to combat and to prevent mar- civil marriage through the Codice civile of 1865. riages of minors (Gesetz zur Bekämpfung von The Lateran Treaty of 1929 and the Concordat of 29 Kinderehen) , that provides for various changes, Villa Madama of 1984, which it concluded with the including in the law on marriage and marriage an- Italian state, legally established the validity of ec- nulment. For example, it becomes now possible for clesiastical marriage for Catholics also in the state a court to annul a marriage if one of the spouses had sphere. Prerequisite was, after all, that certain for- reached the age of 16, but not yet 18 at the time of malities were observed in the marriage. Since then, marriage. For marriages involving children under various other religious communities have con- the age of 16, such judicial annulment proceedings cluded similar agreements with the state. However, are not required; under German law, these are ex the state exerted its influence with the introduction lege invalid. This also applies to marriages of mi- of civil in 1970. Even if it is concluded in a nors concluded under foreign law. religious rite, every marriage can at least be di- In order to prevent marriages with minors in the vorced according to state law. State jurisdiction also future, a correspondent provision was added to § 11 attempts to correct the consequences of the religious 30 para. 2 of the Law of Personal Status . dissolution of marriage deemed intolerable from a fundamental rights perspective. Conclusion: Having previously abolished manda- tory civil marriage, Germany, in view of underage According to law, there are three forms of marriage marriages, had to build in new legal safeguards in in Italy: the interest of those in need of protection. The inter- - Marriage of a purely religious nature (a.), nal law of non-Christian religious communities usu- - Religious marriage with state recognition (b.), ally also stipulates a minimum age for marriage, but - Civil marriage (c.). this differs from state regulations. Moreover, Islam does not have a uniform law, but many interpreta- a. There is no obligation on the part of the state to tions of the basic rules laid down in the Koran and register religiously entered marriages. One can, the Hadiths, especially concerning the minimum therefore, also enter into a marriage purely on re- age for marriage. For adults, a purely religious mar- ligious grounds. This is understood as an expres- riage continues to be permissible, and it remains to sion of the freedom of marriage and religion. For be seen to what extent and with what result it will example, the Jewish community has concluded be used in Germany. an agreement (intesa) with the state in which it is explicitly permitted to enter into and dissolve religious marriages without effect for the state, in accordance with Jewish law and tradition31. However, the omission of state registration does not remove the marriage effects under state law,

28 In 2016 there were 1475 married minors, mostly girls, 994 29 Gesetz zur Bekämpfung von Kinderehen vom 17. Juli of whom were aged between 16 and 18, 120 between 14 2017, Bundesgesetzblatt (BGBl.) I 2017, p. 2429. and 16 and 361 even under 14. Cf. FamRZ – Zeitschrift für 30 According to § 70 of the Law of Personal Status, an offence das gesamte Familienrecht, Redaktionsmeldung, FamRZ- is punishable by a fine of up to five thousand euros. Artikel zum „Gesetz zur Bekämpfung von Kinderehen“, 31 MARCO VENTURA, Religion and Law in Italy, Alphen aan https://www.famrz.de/redaktionsmeldungen/famrz-arti- de Rijn 2013, p. 211. kel-zum-gesetz-zur-bekaempfung-von-kinderehen.html, visited on 09.02.2021.

7 IR-Paper 3/April 2021 René Pahud de Mortanges/Barnaby Leitz

such as alimony obligations for children from 4.2.2. Questionable practices these relationships or for partners who have lived Many migrants in Italy come from Muslim coun- together for a long time. Marriages of a purely tries. However, the Italian state has not concluded religious nature are found today primarily among an intesa with the Muslim communities so far. Un- migrants. The substantial, often illegal immigra- like the other religious communities, it is therefore tion from the Middle East and Africa has led to officially impossible for Muslims to marry accor- a considerably increased number of such mar- ding to religious rite and then be registered by the riages. state. However, if – for whatever reason – they do b. Many Catholics conclude a matrimonio concor- 32 not want to marry before the Italian civil registrar, datario . Marriage is celebrated before the they often choose an indirect route. This includes, Catholic priest and according to the provisions of for example, marriage in their home country and the canon law. The priest is obliged by the law of subsequent recognition of the marriage by the Ital- concordat to observe various formalities. After ian authorities via private international law. An- the blessing, the priest must read to the couple other way is marriage in the diplomatic mission of the provisions of the Italian Civil Code concer- the home country in Italy. Finally, the indirect way ning the rights and obligations of the spouses is practised in several steps: first, the religious mar- and, within five days, apply for the registration riage before the Iman in Italy, then the embassy's of the marriage by the competent civil regis- 33 recognition and finally the recognition by the Italian trar . Registration is only possible if the mar- civil registry office. As the detailed field research of riage requirements of the state marriage law are FEDERICA SONA shows, there are several ways to fulfilled. live in Italy de facto according to Islamic marriage If a Catholic marriage is to be dissolved, there law. Similarly, this enables Muslims to live in dif- is, as mentioned, since 1970, the possibility of ferent countries according to different marital sta- state divorce. Also, however, the spouses can tus. As a result, the Italian state is also largely pow- initiate proceedings to have their marriage de- erless to prevent marriages of minors, forced mar- clared null and void by a court of the Catholic riages, the compulsion to convert the non-Muslim Church, the result of which is then recognised by , the unilateral informal dissolution of mar- the state court of appeal. riage by the man or polygamy35. The same procedure – religious marriage with state registration – is accessible to members of Conclusion: With the Lateran Treaties of 1929, the various other non-Catholic churches and reli- Catholic Church in Italy has, so to speak, reclaimed gious communities based on intesa which they its place in marriage law. However, state legislation have entered into with the Italian state. Unlike and case law, which is aligned with fundamental Catholics, however, non-Catholics have no rights, increasingly imposes limits on the Catholic choice in dissolving their marriage but are de- 34 Church within this dual system. Purely religious pendent on the state divorce proceedings . marriages appear to be primarily problematic when c. In particular, in Northern and Central Italy, the migrants combine them with an active practice of number of people who marry before the civil re- forum shopping to only apply religious marriage gistrar is increasing (matrimonio civile). law. These marriage practices largely evade state intervention.

32 Also known as matrimonio canonico-civile. 35 Cf. FEDERICA SONA, Defending the Family Treasure 33 ‚La trancrizione dell’atto di matrimonio nei registri dello Chest: Navigating Muslim Families and Secured Positiv- stato civile‘, cf. RAFFAELE BOTTA, Il matrimonio concor- istic Islands of European Legal Systems, in: Shah, Pra- datario, in: Bonolini, Giovanni/Cattaneo, Giovanni (Eds.), kash/Foblet, Marie-Claire/Rohe, Mathias (eds.), Family, Il diritto di famiglia, Vol. 1 : Famiglia e matrimonio, Turin Religion and Law, Farnham 2014, p. 115-141. For exam- 1997, p. 197-292; PAOLA RE, Il matrimonio concordatario, ple, different documents with different dates of birth of the in: Cagnozzo, Alessandra et al. (eds.), Il nouvo diritto di bride are presented in the home country and in Italy, or the famiglia, Vol. II, Milano 2015, p. 399 ff. first wife is married under state law, whereas the marriage 34 SILVIO FERRARI/ALESSANDRO FERRARI, Italy, in: Encyclo- with the second wife is concluded only on religious pedia of Law and Religion, Robbers, Gerhard/Durham, W. grounds. Cole (eds.), Vol. 4, Leiden/Boston 2016, p. 195-211.

8 Mandatory civil marriage according to Swiss law IR-Paper 3/April 2021

4.3. England allowed to marry according to their religious rite.36 In England, as in Italy, there are forms of religious The Marriage Act of 1836 extended the range of ac- marriage in addition to state marriage, resulting in ceptable forms of marriage. Civil marriage was in- state recognition. Like in Italy, this is due to the troduced: the marriage could now also be concluded strong position of a church, here the Church of Eng- in a state registry office, before the registrar and two land, which is the state church of the country. In ad- witnesses. In addition, state-recognised religious dition, the state-recognised religious marriage is – marriages could now take place in Anglican under certain formal conditions – also accessible to churches and other religious buildings, provided other religious communities. There is also no obli- that these were registered accordingly, and an au- gation to register a marriage or a mandatory civil thorised person performed the wedding. At that marriage. This leads to a high number of purely re- time, the aim was to make marriage ceremonies in ligious marriages, particularly among Muslims (see the Catholic Church possible, but this system has since been extended to non-Christian religious com- below). 37 munities (Hindu, Sikh, Muslims) . Nevertheless, Similar to Italy one must therefore distinguish: the religious building must always be registered ac- - Civil marriages, cordingly, and a religious official (priest, rabbi, - State-approved religious marriages according to imam) must be authorised. Not all religious build- the rites of the , ings in England are registered, and not all religious - State-recognised religious marriages according officials are authorised. The Marriage Act of 1949 forms the basis of the applicable marriage law, to the rites of other churches and religious com- 38 munities, which specifies registration conditions . - Purely religious marriages. Like in Italy, this dual marriage system raises the question of divorce. Since the Matrimonial Causes Act of 1973, marriages are exclusively dissolved by For lack of codification, the applicable marriage 39 law must be derived from several in part antiquated the respective state court's decision . Religious di- vorce proceedings (e.g., through Catholic declara- laws and precedents. In 1753, Lord Hardwicke's 40 Marriage Act introduced a mandatory form and re- tion of nullity, Jewish get or Islamic talaq ) are, if gistration of marriage to combat clandestine mar- carried out domestically, irrelevant for the state. riages. According to the official church liturgy and Here exists a difference to the Catholic annulment celebrated by the responsible clergyman, the mar- proceedings in Italy. Although it is also possible to terminate a marriage under religious law in Eng- riage was to take place in a public religious cere- 41 mony in a parish church of the Church of England. land, this has no effect under state law . This also applied to members of other churches, Notably, in 2018, the English Home Office pro- e.g., Catholics, except and , who were posed introducing a penal provision in the Marriage

36 MARK HILL/RUSSELL SANDBERG/NORMAN DOE, Religion 41 The additional termination of marriage according to reli- and Law in the , Alphen aan de Rijn 2014, gious rite can be important in Jewish and Islamic commu- p. 198; DAVID MCCLEAN, Marriage in England, in: Euro- nities for social reasons. If the marriage has failed and one pean Consortium for Church-State research (ed.), Marriage of the spouses wants to enter into a new marriage, it is ex- and religion in Europe, Milano 1993, p. 187-198. pected within the religious community that the first mar- 37 STEPHEN M. CRETNEY et al., Principles of Family Law, riage has been terminated in accordance with the religious London 2002, p. 26, f.n. 22 mentions 594 mosques regis- rite. But what if a Jewish husband denies his wife the get? tered for the year 1999, 180 Sikh temples and 385 "other" The Divorce (Religious Marriage) Act of 2002 stipulates buildings. here that the state court issues the divorce decree only after 38 On the formalities for entering into marriage in the Church the renegade husband has given the get, cf. DAVID of England: CRETNEY, p. 19 ff.; MARY WELSTEAD/SU- MCCLEAN, United Kingdom, in: Encyclopedia of Law and SAN EDWARDS, Family Law, Oxford 2006, p. 15. Religion, Gerhard Robbers/W. Cole Durjam (eds.), Vol. 4, 39 Priests of the Church of England are not obliged under the Leiden/Boston 2016, p. 446. Matrimonial Causes Act 1965 to give a church wedding to a person whose previous marriage was legally divorced. 40 State recognition of a religious divorce via talaq is explic- itly excluded if one of the par-ties has lived in England for a year or more.

9 IR-Paper 3/April 2021 René Pahud de Mortanges/Barnaby Leitz

Act that would make it a punishable offence for re- riages possible in Switzerland risks to be not a pro- ligious officials not to report religious marriages to gress, but a step back into the past of patriarchal, the state civil registry office for registration42. The inegalitarian marriage law. Hardly anyone would interdepartmental state Unit has want that. also intensified its efforts to combat forced mar- In the age of migration, mandatory civil marriage riages in recent years43. Forced marriages have been has a new raison d'être. It is not a miracle cure that criminalised since the Anti-social Behaviour, Crime can solve all the related problems of marriage law and Policing Act of 2014. within a migration context. Especially not if, as has been seen, its enforceability is limited to particular Conclusion: Even the comparatively religion- constellations and when there are also possibilities friendly English system cannot do without legisla- in Switzerland, via International Private Law (IPR), tive corrections. to circumvent it.44 However, this does not diminish the fact that mandatory civil marriage has an important appeal 5. Conclusion: legitimacy and limits and safeguarding effect: of mandatory civil marriage in - The state maintains that marriages in Switzer- land are lived out according to state law and the the age of migration principles on which it is based. This, together 45 It is wrong to place religious marriage law as such with other social factors , also can shape the under general suspicion. The state and the (majority perception of the marriage of those couples who of) society have to accept that some people want to live according to religious and cultural ideas, govern their relationship according to traditional, whether they are Catholics, Orthodox Jews, pi- religiously shaped ideas. Instead, the experiences of ous Muslims, Tamils or others. the three countries described above do not speak in - The state ensures the enforcement of state mar- favour of abolishing mandatory civil marriage in riage law, if necessary, with state authorities' in- Switzerland. In countries such as Italy and England, volvement, which is particularly important con- where the state, for historical reasons, has a mar- cerning protecting the weaker party's interests in riage system that gives a prominent role to religious marital relationships. The fact that state law is communities, it is confronted today, due to migra- binding and takes precedence should therefore tion from non-European countries, with forms of not be dismissed. non-Western marriage law. That must not neces- Finally, what does mandatory civil marriage do to sarily but can be accompanied by preconceived gen- combat forced marriages? The latter is currently the der roles, a distribution of rights and duties in mar- most discussed topic in Switzerland regarding mar- riage that is often not based on equality, and some- riages in a migration context. The law against times practices that violate fundamental rights. Here forced marriages enacted in 2012 introduced seve- the popular demand to make purely religious mar- ral amendments to individual laws, providing the authorities with monitoring instruments and sanc- tions46. Besides, various projects have been carried

42 JONATHAN HERRING, Family Law, Oxford 2019, p. 86. provisions of Swiss law on the validity of marriage. Yet, 43 Cf. gov.uk, Guidance: Forced marriage, dozens of marriages are recognised every year where one https://www.gov.uk/guidance/forced-marriage, visited on of the spouses was a minor. 09.02.2021. Statistics for the year 2018 show that 93% of 45 The time spent together in public schools, the integrating the cases took place abroad, 44% of the foreign cases took effect of the workplace, the period of military service, the place in Pakistan and 33% of the cases involved women reputation and the good functioning of state authorities – under 18 years of age. these are all factors that help to ensure that, despite all the 44 A marriage legally concluded abroad is always recognised cultural heterogeneity of today's Swiss resident population, in Switzerland (Art. 45 para. 1 IPRG). As a result, the bride there seem to be no significant segregated milieus. and groom have the possibility of forum shopping under 46 Swiss Federal Law on Measures against Forced Marriages marriage law. The IPRG provides an exception in Art. 45 of 15 June 2012 (Bundesgesetz über Massnahmen gegen para. 2 if the bride or the groom is a Swiss citizen, or both Zwangsheiraten vom 15. Juni 2012). are domiciled in Switzerland and the marriage was moved abroad with the obvious intention of circumventing the

10 Mandatory civil marriage according to Swiss law IR-Paper 3/April 2021 out aimed at the prevention and the support of af- question are female, and a high percentage (28.4%) fected persons. Although it is difficult for metho- are minors52. These figures show that the existence dological reasons47 to precisely quantify the num- of a mandatory state marriage law alone does not ber of forced marriages in Switzerland48, the federal prevent forced marriages. At its best, it is a compo- surveys show that the phenomenon of "forced mar- nent of a broader set of instruments with which the riage"49 should not be underestimated in Switzer- state takes action against unacceptable practices. land. As part of the federal programme to combat For mandatory civil marriage to fulfil its pur- forced marriages, 905 cases were reported between pose, its scope of application must be adapted to to- the beginning of 2015 and the end of August 201750. day's diversity in marriage law, and its enforceabil- Many of those affected had a B residence permit or ity must be improved. The Federal authorities C settlement permit and originally come from Ko- should address this issue within the framework of sovo, Sri Lanka, , Albania and Macedonia51. the current reform of marriage law. The proportion of people with Swiss citizenship should also not be neglected. 83% of the persons in

47 Subjective assessments of coercion, persons affected as a 50 These data should not be considered as equivalent to the "hidden population", problem of the number of unreported current extent of the phenomenon of forced marriages. cases, lack of a population and thus no statistical represen- Firstly, because there are gaps in the geographical coverage tativeness with regard to the institutions surveyed, etc. Cf. of activities under the federal programme; secondly, be- ANNA NEUBAUER/JANINE DAHINDEN, „Zwangsheiraten“ cause it cannot be verified whether all cases have been re- in der Schweiz: Ursachen, Formen, Ausmass, Bern-Wa- ported by the various institutions; thirdly, because the num- bern 2012, p. 32 ff. ber of unreported cases is likely to be high. SCHWEIZERI- 48 A survey commissioned by the Fondation Surgir found a SCHE EIDGENOSSENSCHAFT, Bundesprogramm Bekämp- total of 17,104 cases of forced marriage in Switzerland. fung Zwangsheiraten 2013-2017: Bericht des Bundesrats, However, this estimate is significantly higher than that in Bern 2017, p. 16. the study by NEUBAUER/DAHINDEN, (supra f.n. 47). 51 Since 2012, the number of cases involving people from the 49 The study of NEUBAUER/DAHINDEN, (supra f.n. 47), de- countries of origin and has increased, fines the following three types of situation as “forced mar- with the most recent increase in cases coming from Ko- riage”: sovo, due to the increased influence of fundamentalist Is- Type A: A person is under duress or pressure to accept a lam there. marriage he or she does not want. Type B: A person comes 52 The case survey revealed 257 cases of persons under 18 under pressure to renounce a love affair of his or her years of age. SCHWEIZERISCHE EIDGENOSSENSCHAFT, (su- choice. Type C: A person is put under duress or pressure to pra f.n. 50), p. 16. refrain from filing for divorce. The marriage may have been entered into voluntarily or involuntarily.

11

Kontakt: Institut für Religionsrecht Avenue de l’Europe 20, CH-1700 Freiburg Tel. +41 26 300 80 23 E-Mail: [email protected] www.unifr.ch/ius/religionsrecht