Marriage is a legally protected institution making it possible to limit access to certain people by means of prior authorizations (minors, vulnerable adults) or absolute prohibitions in the event of direct, indirect, presumed family links (action for the purposes of subsidies) or adoptive (incest) and bigamy.
These impediments to marriage serve moral, social and family interests. But certain obstacles can, under certain conditions, be removed.
Authorizations and exemptions
To preserve their consent, the most vulnerable people will not be able to marry without prior authorization. It is then a question of protecting them by ensuring that they do not engage lightly.
The law grants the family and the public prosecutor a role of protection towards minors and protected adults.
Article 144 of the Civil Code provides that "A man and a woman may not contract marriage before the age of eighteen".
Before the law of April 4, 2006, women could marry with the permission of the family from the age of 15. This age has been reduced to 18 years to fight against forced marriages.
In terms of protection, two cases should be distinguished, the public prosecutor will act as the protector of immature and vulnerable people and parents within the framework of parental authority.
Therefore, for the marriage of a minor, an authorization from the parents or an exemption from the public prosecutor will be required.
The dispensation of the public prosecutor
Article 145 of the Civil Code provides for the possibility of granting an age exemption to minors in the event of "serious reasons".
This "serious reason" is most of the time pregnancy. Only the public prosecutor can give his consent to the marriage of a pregnant girl. On average, 400 dispensations due to pregnancy are issued per year.
In the absence of "serious reasons", a minor will have to obtain the authorization of his parents to marry.
In reality, this principle is very flexible because a single authorization may suffice. Therefore, if:
- The two parents disagree, we will only stick to the agreement given by one of them
- If one of the parents is unable to demonstrate at will, a single authorization will suffice
- If both parents are unable to give their consent, it will be necessary to request authorization from the grandparents (ascendants), again the consent of only one will suffice in the event of disagreement.
- If he has no close relatives, the rules of the guardianship of minors apply. You will need either the authorization of the family council or that of the guardian (if the guardianship is delegated to a third party).
The authorization is an irrevocable and discretionary authentic instrument which obeys formal conditions. It must not be general, imprecise and must in particular specify the identity of the spouse with whom the minor is marrying.
If the parents refuse to grant their authorization, no recourse is possible, unless this refusal is motivated for reasons of sex, race or religion. This would be discrimination and in this case it will be possible to attack the refusal for abuse of rights.
The persons empowered to authorize marriage depend on the protection regime enjoyed by the adult.
The law of March 5, 2007 removed the parents' authorization (but their opinion and that of the attending physician may be requested). Only the judge or the family council will be empowered to give their consent.
Authorization must be given by the curator or the guardianship judge.
Note: Once the marriage has been celebrated, and unless the guardianship judge advises otherwise, the spouse of a protected adult becomes its guardian or curator. Unless the guardianship judge decides otherwise (articles 416 and 509-1 of the civil code).
Absolute prohibitions on marriage
These prohibitions are based on cultural, moral, social or biological reasons (consanguineous marriage involves risks of deformities, infirmity and serious illness for their descendants).
Article 161 of the Civil Code does not distinguish between parents in the direct line and allies.
Parents in direct and collateral line
The direct line concerns ascendants (father and mother) descendants (children). And the collateral line concerns brothers and sisters (article 162 of the civil code).
This is an absolute ban which cannot be lifted.
However, if article 163 of the civil code, prohibits marriage between uncles, aunts, nieces, nephews. Section 164 between uncle and niece and aunt and nephew may be waived by exemption.
Allies are the people who enter the family by marriage. This is the case with blended families: The stepfather cannot marry his daughter-in-law, the mother-in-law cannot marry her son-in-law ...
The ban on marrying an ally will be lifted in the event of the death of the spouse who created the alliance.
This is a very specific hypothesis which applies in the context of the action for the purposes of subsidies.
The action for the purposes of subsidies allows any mother whose child has not been recognized by the biological father, to convict the man with whom she had intimate relations during the legal period of conception of the child, the payment of subsidies (such as alimony).
This man could be condemned to pay subsidies to the child, regardless of whether he is the biological father or not. It is a presumption of paternity which must be distinguished from recognition of paternity.
Article 342-7 of the Civil Code provides for the prohibition for this man, who is not legally the father, from marrying the child to whom he pays subsidies.
Two situations can be distinguished depending on whether it is a simple adoption or a full adoption.
According to article 356 paragraph 1 of the civil code, with a full adoption all links with the family of origin are severed to replace those of the adopting family. The prohibitions are then the same as those which apply within all families.
Regarding adoption, in the event of full adoption, the prohibitions are obviously the same as for a real family.
It emerges from Articles 356 paragraph 1 and 358 of the Civil Code that the adopter and the adopted child have the same rights as in a normal parentage. The rules applicable within a family are therefore applied, with the prohibition of marriage between the adopter and the adoptee, his descendants (children) or the adoptive’s spouses.
However, there is no prohibition between the adoptee and the ancestors (parents) of the adopter, nor between the adoptee and the brothers and sisters of the adopter.
Namely: A dispensation may be granted by the President of the Republic for serious causes. This is to grant the right to marry to protect children born of an incestuous relationship between the adopter and the adoptee.
The appreciation of the President of the Republic is sovereign and does not have to be justified. The age difference, if it is too great, will be the main cause of a refusal.
Article 147 of the Civil Code which provides that one "cannot contract a second marriage before the dissolution of the first".
Bigamy is also a criminal offense, sanctioned by article 433-20 of the penal code which provides for one year of imprisonment and 45 euros.
This penalty is incurred both by the groom and by the registrar, who has failed in his professional obligations (he is required to check the file and in particular, the information entered in the margin of the birth certificate).
However, two cases are to be distinguished depending on whether the first marriage, not dissolved, was celebrated in France or in the country of origin of the groom admitting bigamy.
If the first marriage was celebrated in France
Article 147 applies to all marriages celebrated in France. A second marriage is against public order.
If the first marriage was celebrated abroad
Case law admits the validity of a marriage celebrated in a foreign country which recognizes the validity of a polygamous union. However, the effects of such a marriage will be limited on French territory.
It does not entitle all wives to social rights (CAFAL, social security, etc.).
A French person will not be able to contract such a marriage.
If a French woman is engaged in a polygamous union, only her patrimonial interests will be protected (inheritance rights, etc.).