This post was contributed by Fabienne Jault-Seseke, who is Professor at University Paris Saclay (UVSQ), and a member of GEDIP. It is the third of a series of posts on the proposed codification of French PIL (previous posts discussed the issues of renvoi and foreign law).
The French draft code of private international law innovates in several areas. The recognition of marriages celebrated abroad is one of them. The draft code breaks with the choice of law method and relies instead on the recognition method. This is the purpose of Article 45.
It is worded as follows:
Unless the present sub-section provides otherwise, a marriage celebrated in a foreign State in accordance with the law of that State shall be recognised in France, subject to its conformity with international public policy and if it does not result in an evasion of [French] law (fraude).
Where, at the time of the celebration of the marriage, one of the spouses was already in a marriage that has not yet been dissolved, the marriage is not recognised:
– if one of the spouses is of French nationality, even if he or she also has the nationality of another State; or
– if the first marriage was celebrated with a spouse whose national law prohibits it.
However, a spouse who has legitimately believed in the validity of his or her marriage may avail himself or herself in France of the effects attached to the status of spouse, insofar as the effects invoked are compatible with the requirements of international public policy. (my translation)
In the French original:
Si la présente sous-section n’en dispose autrement le mariage célébré dans un État étranger en conformité avec le droit de cet État est reconnu en France, sous réserve de sa conformité à l’ordre public international et de l’absence de fraude.
Lorsqu’au moment de la célébration du mariage l’un des époux était déjà engagé dans les liens d’un mariage non encore dissous, ce mariage n’est pas reconnu :
– si l’un des époux est de nationalité française, même s’il a également la nationalité d’un autre État ; ou
– si le premier mariage a été célébré avec un époux dont la loi nationale le prohibe.
Toutefois, l’époux qui a légitimement cru en la validité de son mariage peut se prévaloir en France des effets attachés à la qualité de conjoint, dans la mesure où les effets invoqués sont compatibles avec les exigences de l’ordre public international.
Assessment of the Recognition Methodology
The authors of the draft code have thus decided not to use the choice of law method to assess the validity of a marriage celebrated abroad.
This solution must be approved. It was expected. While it is logical to use a choice of law rule to determine the conditions to be met by a marriage to be celebrated in France (Article 171-1 of the Civil Code and Article 44 of the draft), it is surprising that this same choice of law rule should be used to assess the validity of a marriage celebrated abroad, perhaps many years ago, as Article 171-1 of the Civil Code does today. The situation gives rise rather to a conflict of authorities than a conflict of laws. One could also envisage treating the marriage certificate, which is a foreign public document, as a foreign judicial decision. More concretely, it would be a question of assessing the effectiveness of a marriage like that of a registered partnership (Article 515-7-1 of the Civil Code provides at the present time for the application of the lex auctoris) or like that of a divorce decision (which, as a decision rendered in matters of personal status, is recognised de plano (automatically).
Thinking for marriages celebrated abroad in terms of recognition is not new. The solution is already that of Article 9 of the Hague Convention of 14 March 1978 on the Celebration and Recognition of the Validity of Marriages or that of Article 45 of the Swiss Private International Law Act.
The advantages of the proposed solution are numerous. It is compatible with the plurality of family models but also with the diversity of nationalities of those concerned. It ensures the continuity of personal status and thus the respect of the parties’ expectations. It is consistent with the solution adopted for registered partnerships. Moreover, the draft Code models the rule for the recognition of registered partnerships (Article 56 paragraph 1 of the draft) on that for marriage.
Its disadvantages are rare. Civil status shopping is not to be feared as recognition is not automatic and there are grounds for non-recognition. Under Article 11 of 1978 Hague Convention on marriages, polygamy, endogamy, age and lack of consent may justify a refusal of recognition. Likewise, Article 45 of the draft reserves the right to refuse recognition on the grounds of breach of public policy and evasion of law. It is not known in which cases courts may find that the marriage was an attempt to evade the application of the law, but one could imagine that the absence of any link between the spouses and the place of celebration could trigger the exception, even if this does not correspond to current positive law, which admits the validity of marriages celebrated in Las Vegas. More certainly, evasion of law will prevent the recognition of a marriage celebrated without matrimonial intention (but this is directly provided for by Article 46, see below). The content of public policy is, in part, clarified. Indeed, Article 45 contains provisions specific to polygamy. In this case, the application of the national law of the spouses in matters of personal status resurfaces. Polygamous marriage is not recognised if one of the spouses is a French national (regardless of whether he or she possesses another nationality) or if the marriage was concluded with a spouse whose national law prohibits this type of marriage. In the latter case, the hypothesis of dual nationality is not envisaged, which will inevitably raise difficulties. Is it justified to protect the French dual-national spouse against a subsequent polygamous marriage by giving precedence to the nationality of the forum and not a Belgian dual-national spouse? This is questionable.
Limited Scope of the Recognition Methodology
The scope of the method of recognition is partially limited by Articles 46, 48 and 50 of the draft Code, which largely reiterate the current solutions.
The method of recognition is first of all limited by the method of substantive rules. Article 46 specifies that, whatever the State of celebration and whatever the applicable law, marriage requires the free consent and matrimonial intention of each spouse. Here we find the trace of the statutory intervention in the private international law of marriage in 2014 according to which, whatever the applicable personal law, marriage requires the consent of the spouses, within the meaning of Articles 146 and 180 para. 1 of the Civil Code. This requirement of free consent and matrimonial intention can also be seen as specifying the content of international public policy on marriage. In order not to render Article 45 meaningless, it is important that the requirement be assessed in a factual manner (which is logical, see B. Audit et L. d’Avout, Droit international privé, LGDJ 2019, n° 770).
The recognition method is also limited by Article 48, which is the only provision in a section dedicated to ‘Rules of form and competent authority’.
Article 48, which is intended to apply to all marriages, whether celebrated in France or abroad, states that a marriage is validly celebrated if it has been celebrated in accordance with the formalities laid down by the law of the State on the territory of which the celebration took place. It is difficult to understand the usefulness of this provision. In the same way that, in matters of recognition of judgments, it is not verified that the foreign court has complied with its own rules of procedure, it seems inappropriate to verify that the foreign authority that celebrated the marriage complied with its own rules of form. The possibility of denying recognition to a marriage on the grounds of evasion of law or contravention of public policy should make it possible to avoid giving effect to a marriage that has been celebrated in shocking conditions. Article 48 seems then superfluous.
Finally, Article 50 takes up the current solutions for marriages celebrated abroad involving a French person. By requiring compliance with Articles 146-1, 171-1 to 171-9 of the Civil Code (mainly these provisions set an obligation for the French spouse to be present at the marriage, an interview intended to fight against marriages of convenience with the possibility of the public prosecutor’s office to oppose the celebration of the marriage and then the transcription of the record), it also limits the possibilities for recognition of marriages celebrated abroad when a French national is involved. In methodological terms, Article 50 does not call into question the principle of recognition, but it does provide a stricter framework.
The articulation of Articles 46, 48 and 50 with the principle of recognition of marriages celebrated abroad raises questions. Should it be ensured that the conditions they set out are met before the marriage is given effect? An affirmative answer would render the principle of recognition meaningless. It would be more coherent if, as in the case of recognition of judgments, verification is only carried out if the validity of a foreign marriage is challenged.