Non-marriage
A non-marriage ( non-marriage ) occurs when the attempt to marry has failed due to significant legal deficiencies. According to the current legal situation in Germany, this is only the case if the attempted marriage fails due to at least one of the following defects:
- The marriage was not entered into before a registrar who was prepared and authorized to marry ,
- one or both fiancées do not make an affirmative declaration of intent (“yes”) aimed at entering into a marriage, or
- one of the married couples is a child under the age of 16 (ineffective child marriage since 2017).
Only in these cases does a German marriage statute not legally come about from the outset . In all other cases in which the act of marriage was fraught with legal defects, there has been no non-marriage since the abolition of the nullity of marriage in Germany (marriage law reform on July 1, 1998), but at most a marriage that can be annulled , cf. Section 1314 (1) BGB .
The fourth requirement of effectiveness, according to which the couple must be of different sexes, has become obsolete with the resolution of the Bundestag on same-sex marriage of June 30, 2017 and ceases to exist with the entry into force of the law on opening marriage on October 1, 2017.
The marriage in front of a bogus registrar is valid, that is, whoever acts publicly as a registrar and enters the marriage in the marriage register is considered a registrar even if he was not actually authorized to perform the official act (Section 1310 (2 ) BGB ). This regulation serves to protect the spouses, who often cannot check whether the civil servant is authorized. The willingness of the registrar to participate in the marriage must not be made dependent on arbitrary conditions or personal preferences. Rather, the civil servant is obliged to carry out the marriage ceremony if the conditions for the marriage are met; on the other hand, he must refuse to cooperate if the contracted marriage could be annulled (paragraph 1 of the same provision).
The question of whether a conjugal relationship is to be regarded as a non-marriage plays a role in practice above all for marriages entered into abroad or under foreign law. For marriages in Germany, the principle applies that the marriage may only be concluded if it would also be permissible under the home law of both spouses. For marriages abroad, the general form conflict rule according to Article 11 Paragraph 1 EGBGB applies , according to which compliance with the formal requirements applicable at the place of the marriage is sufficient for the recognition of the legal transaction in Germany. The material prerequisites for marriage must be met according to domestic and foreign law. Marriages that are considered effective by one legal system and ineffective by the other are called "limping marriages". For the assessment of these cases in Germany, the German perspective is fundamentally decisive.
Since the approval of church marriage without a previous civil marriage due to the reform of the Civil Status Act that came into force on January 1, 2009, a relationship not recognized by the state as a marriage can arise in these cases, which is nevertheless regarded as a marriage by those involved. In contrast to non-marriage, in this case a civil marriage attempt did not take place at all.
Since the law to combat child marriages came into force on July 22, 2017, a marriage is also ineffective if one of the spouses has not yet reached the age of 16 at the time of the marriage. This also applies to marriages that are effectively concluded under foreign law. Such a marriage no longer needs to be annulled by a court, but is automatically considered a non-marriage. There are transitional provisions for old cases.
See also
Individual evidence
- ↑ See for the entire paragraph: Klaus Krebs: Internationales Privatrecht. Heidelberg / Frechen 2011; ISBN 3-8114-7079-5 . Pp. 32-35.
- ^ Law against child marriage: Married from 18 years. Federal Government, July 22, 2017, accessed on September 2, 2017 .
