The consent to get married must be according to article 146 of the civil code, real serious and honest.
Marriage is fictitious when the couple's consent is neither real nor serious, and therefore, without any real desire to marry.
If marriage does not tend to found a family life, nor to assume the personal and patrimonial consequences of married life, but to obtain administrative or social advantages. It is a fraud, because there is a hijacking of the institution of marriage, better known under the term of “white marriage” or “gray marriage”.
The most frequent hypothesis concerns marriages with a foreigner. Marriage allows them to benefit from a residence permit, to prevent an escort to the border (removal measure) or to obtain French nationality.
In a white marriage, the two people are accomplices, while in a gray marriage, one of the spouses (of French nationality) engages in good faith, ignoring the objectives pursued by his spouse.
The Constitutional Council admitted, in a decision of November 9, 2006, that the freedom of marriage " does not prevent the legislator from taking measures to prevent or combat marriages contracted for purposes unrelated to the matrimonial union ».
To fight against these fictitious marriages, the legislator has put in place over the last twenty years, a whole system making it possible to act either before the marriage with the opposition procedure entrusted to the public prosecutor; or after the marriage, with the annulment procedure that the spouse can exercise in "good faith".
Marriage Annulment: The Gray Wedding
The discovery of a gray wedding always takes place after the ceremony.
It is the hypothesis that one of the spouses enters into the bonds of marriage in good faith without suspecting that the goals pursued by his spouse tended only to obtain advantages other than those of a community of life: It is a fraud on "feelings".
Unlike the white marriage, the gray marriage can cover several cases. It all depends on what the husband was looking for in "bad faith": Obtaining papers, a social, professional, fiscal, inheritance or patrimonial situation (marriage with a widower, or a grieving widow and incidentally very rich ...) .
The action of the husband in good faith
Regardless of the motivations of the spouse in "bad faith", if one of the spouses notices that the goals pursued by his spouse were anything other than the matrimonial union, he may ask for the annulment of the marriage.
This is indeed an annulment and not a divorce. Cancellation is a sanction whose effects are completely separate from divorce.
Divorce only ends a union for the future and does not call into question acquired rights, such as obtaining, even fraudulently, a residence permit. Divorce only tends to punish the behavior of a spouse who would have violated the duties of marriage.
Only nullity does not allow sanctioning the defect of consent which tainted the marriage from the outset. And the nullity of marriage erases everything: It is retroactive. It is as if the spouses had never married, except in cases of putative marriage recognition.
Article 180 of the Civil Code allows the validity of a marriage to be contested after the ceremony and Law No. 2014-873 of August 4, 2014, codified in Article 146 of the Civil Code, made the exercise easier. cancellation for the “good faith” spouse.
It suffices for the husband who has discovered, after the ceremony, or even a long time after, that the goals actually pursued by his spouse had vitiated his consent to bring proceedings for annulment of the marriage.
If the aim pursued was to obtain papers granting him the right to reside in France, the husband in “bad faith” incurs five years' imprisonment and a fine of 15 euros (article L000-623 of the French Code of entry and stay of foreigners and the right to asylum).
He also incurs the withdrawal of his residence permit and may be subject to an expulsion measure such as the Obligation to Leave French Territory (OQTF) immediately after the declaration of the nullity of the marriage.
Opposition to Marriage: The White Marriage
The most frequent hypothesis of a white marriage is the obtaining of a residence permit for the foreign spouse in exchange for a sum of money for the spouse of French nationality. The marriage is not consummated, the "spouses" allow a certain period of time to pass, generally 6 months, then divorce.
This is why the residence permit is no longer issued as of right. To limit fraud, article 21-2 of the civil code provides that a foreigner cannot apply for French nationality before a period of 4 years after marriage.
This is the time deemed necessary by the legislator to ensure that there is real cohabitation between the spouses, that they share the same roof and therefore the same room.
If the separation takes place before this period, the foreign spouse loses his right to remain in the national territory.
The Court of Cassation in an Appietto judgment of 1963 considers that if the spouses, got married to obtain advantages unrelated to the matrimonial union: the marriage is null for lack of consent of article 146 of the civil code. But if at least one of the effects of the marriage is sought by the spouses: the marriage is valid.
This is the reason why this period of 4 years is more flexible if the spouses have a child. It is the proof that there was community of life.
The role of the registrar
Law n ° 2006-1376 of 14 November 2006 relating to the control of the validity of marriage has strengthened the role of mayors, deputy mayors and other civil status officers by verifying the constitution of the file and the 'preliminary hearing of the future spouses (Articles 63 and 171-2 of the Civil Code).
The registrar who does not carry out these checks will be prosecuted before the tribunal de grande instance and punished by a fine of between 3 and 30 €.
Any report must be based on a converging bundle of suspicious clues. In its decision of November 20, 2003, the Constitutional Council prohibited justifying a report simply because one of the future spouses was illegally staying.
These clues should be collected when:
Verification of the filing of the file
- Place of domicile or residence: In the event of a fictitious marriage, the spouses are domiciled at an address other than their own (parents of one of the future bride and groom, etc.). The registrar will then ask for all proof of address (gas, electricity, lease, etc.), compare the dates, etc.
- Marital capacity: If one of the future spouses is a minor, or a protected adult, it is necessary to check that the required authorizations are in the file.
This “delicate” term also covers the ability of the future spouses to consummate the marriage. The union of a barely nubile foreign girl with a sixty-year-old man will be hard to pass.
The hearing of the future spouses
It is an individual interview, followed by a joint hearing, with if necessary with an interpreter, which will be used to collect a bundle of clues listed in the 2010 circular (and the entirety of which can be downloaded below):
« The case law rendered in the matter of simulated marriages, the experience of certain public prosecutors and certain municipalities make it possible to list, in a non-exhaustive way, a certain number of indices or indicators of simulated marriage:
- confession of the spouses on their motivations (obtaining a residence permit, a transfer, etc.);
- indication of an erroneous, false or uncertain address;
- distortions on the circumstances in which the spouses or future spouses declare having met, or on personal information (lack of knowledge of each other's families, etc.); errors in their respective contact details (name, first names, date and place of birth, nationality, residence, address, nature of professional activity, place of practice of the profession, identity of their ancestors, etc.);
- incomprehension between them in the absence of a common language;
- lack of proof of the identity of one or more future spouse (s);
- repeated and unjustified delays in producing documents for the marriage record;
- marriage plans successively postponed or canceled, sometimes involving a change in the person of one of the future spouses;
- presentation of the marriage file and completion of the various formalities by a single spouse without the other ever being associated;
- marriage plans for different couples with the same witnesses;
- multiple marriage projects presented by one of the future spouses in several municipalities with different partners, whether the spouse present in the various projects is the foreign national in an irregular situation or, on the contrary, the French spouse;
- intervention in several marriage files of the same person serving as intermediary or even interpreter;
- plurality of marginal entries on the birth certificate of the French husband of marriage, divorce and multiple remarriages dissolved by divorce at close dates;
- significant change in the lifestyle of a (future) spouse with modest or limited income;
- existence of a consideration for the marriage apart from the goods and sums of money given as dowry or customary presents;
- irregular situation of a marriage candidate, with regard to the rules of entry and stay on French territory. "
Reporting to the public prosecutor
After the hearing of the future spouses, the civil status officer draws up a report of the hearing that he will send in the event of a suspicion of “white marriage” to the public prosecutor.
The registrar must imperatively alert the public prosecutor who is the only one able to prohibit the marriage ceremony.
The mayor has no discretion and no appeal against the decision of the public prosecutor. He is subject, as well as the assistants and civil status officers, to the observations or injunctions of the public prosecutor who derives from Article 53 of the Civil Code a power of surveillance and control over civil status documents.
Article 175-2 of the Civil Code also requires the mayor to notify the persons concerned without delay and in writing (registered letter with acknowledgment of receipt) of his decision to seize the public prosecutor.
Namely: If the registrar refuses to perform the ceremony without taking the trouble to inform the public prosecutor, the future spouses can refer both to the prefect and the public prosecutor.
It is a violation of the fundamental freedom of the right to marry constituting an assault giving rise to the payment of damages.
In the same way as the registrar who celebrates a union despite an opposition procedure in progress, is exposed according to article 68 of the civil code to sanctions.
The opposition of the public prosecutor
If the public prosecutor intends to oppose the marriage, he must provide proof of the misuse of the institution of marriage and in particular that the will of the spouses is foreign to the creation of a family union (a residence permit, French nationality, health cover, survivor's pension, social benefits, etc.).
Evidence that will be difficult to report, because in a white marriage, the future spouses are "wicks" and both incur criminal prosecution.
To gather this evidence, the public prosecutor has 2 months and 15 days to conduct an investigation and rule on the validity of the intentions of the people concerned.
The investigation is entrusted to gendarmes or police officers. It is a neighborhood survey with the hearing of the couple, witnesses… In the annex to the 2010 circular (downloadable below) there is a whole list of questions and checks to which they will have to proceed.
At the end of the investigation, the public prosecutor can either:
- Authorize the mayor to celebrate the wedding
- Oppose the wedding and the ceremony will not take place
The recourse of the future spouses
They will be able to oppose the decision of the prosecutor before the Tribunal de Grande Instance which will have to rule within 10 days.
If the court considers that the alleged fraud has not been proven, it will order the withdrawal of the opposition and the marriage must take place as soon as possible.
If he maintains the opposition, the spouses can appeal the order. The Court of Appeal must rule within 10 days.
The penalty incurred by both spouses in the event of a sham marriage is punishable by five years' imprisonment and a fine of 15 euros (article L000-623 of the Code on the entry and stay of foreigners and the right to asylum) .
Note: In the event of an opposition procedure in progress, the registrar must mention this in the margin of the civil status documents. As long as the procedure is not completed, the future spouses will not be able to get married in another municipality.
To read about it:
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