Ban on marriage

Marriage ban (colloquially also marriage ban ) is the term used in German and Austrian law to refer to regulations that exclude people from marriage based on certain facts or legal relationships. The equivalent of the ban on marriage in church law is called an obstacle to marriage .

German law

Applicability; Examination by the registrar

German courts and authorities - especially the registry offices - examine the marriage bans for every fiancé in accordance with the law of the state to which the fiancé belongs ( Art. 13 para. 1 EGBGB ). The registrar is obliged to examine the obstacles to marriage ex officio before entering into a marriage ( Section 13 (2 ) PStG ). If the fiancé is German , the German regulations apply. If the fiancé is a foreigner , his / her home law must be used as a basis for assessing the marriage prohibition. In order for the registrar to be able to check whether marriage bans apply to a foreign fiancé, the latter should, in accordance with Section 1309 (1) of the German Civil Code , produce a certificate of marital status from an internal authority in his home country. If the foreigner is unable to marry under his / her home law, marriage in Germany is still possible if one of the engaged is German or has his habitual residence in Germany, the engaged has taken all reasonable steps to meet the legal requirements and the refusal of the marriage is incompatible with freedom of marriage . A previous marriage does not prevent remarriage in particular if the previous marriage has been eliminated in Germany (especially divorce, annulment) or the previous spouse has been declared dead , but this legal act has not been recognized in the fiancé's home country. German law thus grants freedom of marriage priority over international consensus of decisions. However, this may mean that a marriage entered into in Germany in this way is considered ineffective in the home country of a spouse ("limping marriage").

The registrar must refrain from participating in the marriage if the marriage could evidently be annulled according to Section 1314 (2) of the German Civil Code ( BGB ) due to a defect in the German fiancé . In the case of a foreign fiancé, the right to prohibit marriage is also based on his home law.

If the registrar refuses to undertake the marriage, a court decision is given. The registrar himself can also appeal to the court ( Section 49 PStG). The competent civil registry court is the local court at the seat of the regional court. The local jurisdiction is determined by the seat of the registrar who issued the contested order or submitted the matter to the court for decision. The court can order the registrar to certify the marriage.

German regulations

In current German law, there are only a few marriage bans that are listed in § § 1306 ff. BGB .

Prohibition of entering into marriage in the case of an existing marriage ( double marriage ; punishable under Section 172 StGB) or civil partnership (prohibition of bi- and polygamy ) - Section 1306 BGB
Prohibition of relatives' marriage . A marriage may not be concluded between straight blood relatives and between full or half-born siblings - § 1307 BGB
The prohibition of relatives' marriage also applies to adopted children in relation to the adoptive parents and their relatives. If the relationship only exists in the sidelines through adoption , exemption from the marriage ban can be granted. - § 1308 BGB

A marriage entered into contrary to a marriage prohibition is nevertheless effective, but with the stigma of contestability. With the exception of the case of adoptive relatives, it can be revoked with the help of a so-called “ marriage annulment procedure ” (§ § 1313 ff. BGB).

Former marriage bans under the Civil Code and the Marriage Act

The Civil Code and the Marriage Act (Germany) used to provide for further obstacles in addition to the marriage bans that still exist today. Until 1998, marriage between persons by law in a straight line was strictly forbidden (under the Marriage Act (Germany) a dispensation could be granted). Until 1976, marriage was also prohibited between a spouse divorced because of adultery and the person with whom he had committed adultery (a dispensation could be granted) and between persons one of whom had been with parents, ancestors or descendants of the other sex community ( dispensation could be granted under the marriage law (Germany). These marriage bans were removed because of changed morality . In order to reduce ambiguity regarding the origins of a descendant, a woman was not allowed to remarry until 10 months after the dissolution or declaration of nullity of her marriage. From this waiting period, especially before the end of the so-called year of mourning , a dispensation might have to be granted, unless the woman had given birth in the meantime. This regulation has become obsolete because of the parentage determination procedures that have since been developed and was abolished in 1998.

The reservations of the employer for civil servants and the commander for soldiers no longer exist .

Before same-sex marriages were permitted, no prohibition of marriage in the legal sense was the exclusion of persons of the same sex from marriage , which in any case was not expressly regulated in any law. This was based on the fact that, according to the prevailing view, the opposite sex of the partners was one of the fundamental characteristics of marriage and a connection between same-sex partners would therefore conceptually not be a marriage. In the case of marriage between persons of the same sex, the attempt to enter into marriage failed; a non-marriage ensued .

Austrian law

In Austrian law there are the following largely identical marriage bans:

Prohibition of double marriage (prohibition of bi- and polygamy ) - § 8 EheG

Prohibition of relatives' marriage . A marriage may not be concluded between relatives in a straight line or between full or half-born siblings - § 6 EheG

The prohibition of the marriage of relatives also applies between an adopted child and his descendants on the one hand and each adoptive parent on the other hand, as long as the legal adoption relationship exists - § 10 EheG

A marriage contrary to the prohibitions of §§ 6 or 8 EheG is void; However, a marriage which is contrary to the prohibition of Section 10 EheG is neither void nor revocable.

Historical and constitutional background

From today's perspective, it seems like a natural right to marry. In earlier times, however, a marriage was dependent on the consent of the landlord, the guild master and similar persons of authority, depending on the class of those willing to marry. It was only with the abolition of the feudal order at the beginning and the introduction of civil marriage at the end of the 19th century that freedom of marriage became a natural right for most. In the time of National Socialism it was restricted for racist reasons (see Marriage Act ) and is guaranteed in Germany today by Article 6 of the Basic Law . Civil law now only recognizes the marriage prohibitions mentioned, which are based on generally recognized social or moral taboos ( bigamy , polygamy) or on eugenic reasons ( incest taboo ).

Austria: the Sever marriages

Until 1938 in Austria - with the exception of Burgenland , which was part of the Kingdom of Hungary until 1918 - Catholics were indivisible. Even after leaving the church at a later date, the marriage, which had once been entered as indivisible, was not divorced. However, some administrative authorities (especially in Lower Austria and Vienna ) began in the 1920s to issue an exemption from the marriage prohibition of the existing marriage in certain cases if a judicial separation of table and bed (at that time called "divorce" in Austria, while the possible divorce for non-Catholics at that time was called “marriage separation”). Usually further conditions were made, e.g. B. that none of the partners in the new marriage was still allowed to be Catholic. The marriages concluded on the basis of this exemption were also called Sever marriages after the then Lower Austrian Governor Albert Sever . The legal validity of these marriages was controversial, the Supreme Court held them null and the Constitutional Court valid. With the introduction of civil marriage by the National Socialist marriage law in 1938 , Sever marriages that had not yet been judicially annulled were declared valid and the earlier marriages of those affected were declared dissolved.