Match in Virtual Heaven? No, Says German Supreme Court
The German Supreme Court (BGH) declared a marriage celebrated by a couple from German territory over video in the US as being void in a decision dated 25 September 2024.
Facts
A Nigerian couple had given their vows during a videoconference before an official in Utah (USA), where the county government offers so-called ‘online marriage applications’. At the time, both were living in Germany, from where they also participated in the ceremony.
Legal Question
Under German Private International Law, marriages celebrated in Germany must comply with the formal requirements of German substantive law, see Art 13(4) Introductory Act to the German Civil Code (EGBGB). Inter alia, the marriage must be celebrated before a German official (registrar), with both bride and groom being present (sec. 1310 and 1311 German Civil Code – BGB). Otherwise, the marriage is void, independent of the nationality of the two partners. The question was whether this strict provision applied in the present case.
Holding
The decision hinged on whether the online marriage had been celebrated ‘in Germany’, since only in this case the mandatory German requirements would apply. The German Supreme Court held that the marriage actually had taken place in Germany. As a result, the marriage was void from a German point of view.
Rationale
Previous to the decision, a number of authors in the German literature had taken the view that online marriages before a foreign authority were not celebrated in Germany. In their opinion, the decisive locating factor for the marriage is the establishment of the registration authority, not the place where the bride and groom were present.
However, the German Supreme Court took the opposite view. In its opinion, the marriage takes place where the necessary acts are performed. In this regard, the consent between bride and groom would be the decisive factor, not the registration. That the registration is ‘constitutive’ for the validity of the foreign marriage does not matter in the eyes of the Court.
Assessment
The decision extends the formal requirements of German law to the virtual space. It limits the personal freedom of persons who, for whatever reason, want to marry in another country but cannot travel there. A legitimate interest for Germany to apply its law to online marriages is not apparent. Territorial sovereignty is not threatened where persons voluntarily marry in front of their computers.
Other courts take a much more liberal stance. For instance, a court in Lebanon has recently accepted a ‘Utah Zoom marriage’ between two Lebanese residents and nationals. Decisions such as these open a window to a world in which people are no longer bound by restrictions of their home jurisdictions, e.g. the prohibition of interfaith marriages (see John F. Coyle, ‘Utah: A Virtual Gretna Green?’). The German judgment points in the opposite direction.
One question remains: Would German law also apply if only one of the partners was present on German territory at the time of the ceremony? There is a hint in the German Supreme Court’s decision that it would indeed apply German law also in this case. But in such a situation, it can hardly be said that the consent between bride and groom took place in Germany. We have to wait for further clarification.
— Thanks to Lukas Petschning and Paul Eichmüller for their helpful comments.
I’ve not read the judgment, but I always took the protestant and common law view to be that the parties to a marriage married each other, rather than that they were married by some external authority. That, no doubt, can lead to questions fit for a university examination, but in this case it is surely unsurprising if the court were to have held that two persons who were at all material times in Germany, and who married each other, married each other in Germany.
A preliminary question is certainly whether the State should be involved at all in marriages, and whether private marriages (including, in particular, religious marriages) should be recognised.
Germany, however, like many other States, has made the policy choice that the State should be involved, in particular through the intervention of a registrar. If that is so, and if a marriage celebrated otherwise is void, then it seems only logical that Germany would not allow residents to marry online and escape the mandatory requirements of State involvement. I have not read the decision either, but I guess that at least part of the rationale of this mandatory intervention of the registrar and presence of the spouses is to check consent, and make it clear to the spouses what they are committing to, which might explain why the court insisted on where consent was given.
If you want to frame this in terms of interests of Germany to apply its law, it seems clear to me that this would lead to the conclusion that the interest of Germany is to apply this requirement to all residents, at least if the marriage is not a preparatory step to emigrate to Utah.
The territorial question („in Germany”) is a broader one in PIL due to liberalisation in some countries as to online procedures. Notaries are being confronted with documents, for instance powers of attorney, produced in foreign jurisdictions – or registered there to be more precise. The same problem arises: if your PIL allows to accept the form, if it fulfils the local formal requirements of the place the power of attorney has been issued, the same question appears: has the power of attorney actually been issued in the US or in Estonia, if the parties never left their couch in Cracow or Hannover and were never present abroad. In my view it has not. The couch should be in NY or Estonia. Then we accept the local legislator taking a more liberal approach to procedures and formal questions (in other words: somebody else – producing the document – takes the responsibility for such a procedure). The liberalisation ends when such a form is being used by parties who are physically present in your home country.