The fundamental principles of the right to marry
The freedom to marry means that everyone has the right to create a marital bond, and therefore to create a family bond with a person of the same or different sex.
Getting married is a right recognized and protected by fundamental texts and in particular:
- Article 16 of the 1948 Declaration of Human Rights
- Article 23 of the International Covenant on Civil and Political Rights
- Articles 8 and 12 of the European Convention on Human Rights protecting the right to private and family life.
The Constitutional Council, in its decision n ° 2003-484 of November 20, 2003, recalled that marital freedom is a principle with constitutional value protected in Articles 2 and 4 of the Declaration of Human Rights of 1789.
The right to marry
It is a question of protecting the will of the future spouses to engage in the bonds of marriage.
This right does not extend to the difficulties encountered in dissolving a union. The European court rejected the appeal of an Irishman who, failing to divorce (following an endless legal battle with his wife) was unable to regularize his adulterous union (ECHR, Johnston and others v. Ireland, December 18, 1986; Req n ° 9697/82; see also CEDH, Ivanov and Petrova v. Bulgaria June 14, 2011; Req n ° 15001/04).
The court thus shows that the protection of the right to marriage cannot be equated with the right to divorce.
But such delays should not extend indefinitely, such as this long "moment of penance" which prevented marriage several years (in this case 3 years) after the final pronouncement of the divorce. (CEDH, F. v. Switzerland December 18, 1987; Req n ° 11329/85).
Likewise, a detained person cannot be refused the right to marry (ECHR Jaremowicz v / Poland and Frazic v / Poland 5 January 2010; Req n ° 24023/03 and n ° 22933/02).
If member states can set limits on the freedom to marry (ECHR, BL v / United Kingdom, September 15, 2005; Req n ° 36536/02), these provisions cannot be too restrictive such as imposing marriage costs very high and therefore dissuasive towards foreigners only (CEDH, O'Donoghue and others v / United Kingdom, December 14, 2010; Req n ° 34848/07).
Limits to marriage law
The goals pursued by the bride and groom must not contravene public order or good morals. Any fraudulent or fictitious marriage made to acquire rights other than the desire to create a family link may be annulled.
The power to suspend the celebration belongs only to the public prosecutor and not to civil status officers.
A mayor had refused to celebrate the marriage in view of the age difference and the irregular stay of one of the spouses. The Paris Court of Appeal censured this decision which violated matrimonial freedom on the basis of articles 12 and 14 of the European Convention on Human Rights (CA Paris of March 14, 2003).
According to the procedure, after the hearing of the spouses by the civil status officers, if there are suspicions of misappropriation of the institutions of marriage, it is up to them to inform the civil prosecution.
Indeed, the law requires the public prosecutor to verify civil status registers (Article 53 of the Civil Code) and grants it a power of control over all acts drawn up by civil status officers (Article 34-1 of the Civil Code).
As regards the right to marriage, the law of November 26, 2003, codified in articles 175-2 and 190 of the civil code, specifies that it is up to the public prosecutor to check the validity of marriages celebrated.
In case of fraudulent or fictitious marriage, better known under the name of gray or white weddings, only the prosecution can postpone or cancel the ceremony.
However, the prosecution must follow the procedure and cannot oppose the marriage before the results of an investigation (Constitutional Council 20 November 2003).
Limits to the Effects of Marriage
Marriage grants rights to spouses. Family, social, fiscal rights… but also and above all the right to acquire French nationality.
However, the acquisition of French nationality being strictly regulated may be refused.
In one case, the Council of State recognized the right of the government to oppose the acquisition of French nationality by marriage to a woman who was shown to have a radical practice of religion incompatible with the essential values of the French community and in particular gender equality (CE 27 June 2008, Mrs F. Mabchour ).