Spaniard resolution
The Spanish Constitutional Court 's decision of May 4, 1971 is an important decision in the field of private international law . It also specifies the constitutionally protected protection of marriage and family and the freedom of marriage that it includes.
facts
A Spanish man and a German woman wanted to get married. While the Spaniard has never been married, the German was already in a previous marriage, which divorced in 1965.
Since Spain did not issue any certificates of marital status, the Spaniard applied for an exemption under Section 10 of the Marriage Act of the time , which the registrar refused. The Hamm Higher Regional Court rejected the application for a court decision because it saw an obstacle to marriage under the Spanish national law. Since Spanish law does not recognize divorce, the woman's previous marriage is still legally valid under Spanish law; thus a forbidden double marriage would arise , which stands in the way of a marriage. According to Art. 13 EGBGB, Spanish law is also authoritative for marriages concluded in Germany; this violates neither European law nor the Basic Law.
The fiancée turned against this together with their constitutional complaint.
Summary of the judgment
The Federal Constitutional Court declared the decision of the court to be incompatible with Article 6 (1) of the Basic Law. The protection of marriage and the family is a fundamental right that is basically also applicable to foreigners.
The court expressly disagreed with the prevailing opinion, which denied the applicability of German fundamental rights to circumstances affecting international private law . According to Article 1, Paragraph 3 of the Basic Law, state power is fundamentally bound to the fundamental rights, and this cannot be ruled out by denying the applicability of these fundamental rights to circumstances which even somehow affect foreign law. A person cannot simply be at the mercy of foreign law without being protected by fundamental rights; the authorities and courts cannot simply declare facts to be "free of fundamental rights".
The application of foreign law with regard to the question of the ability to marry and possible obstacles to marriage is in principle not unconstitutional, even if under certain circumstances it burdens the German fiancé more than if German law were applied alone, because the laws of the foreigner's home law are stricter or contain other requirements than German law.
However, the concrete application of these regulations by the Hamm Higher Regional Court in the present case violates the freedom of the German fiancées to enter into marriage, because it restricts their right to marry in an unconstitutional manner. The German courts cannot decide at the same time that both the previous marriage was dissolved through a final divorce and that this marriage still continues. The German courts cannot simply adopt foreign values as their own in order to deny Germans marriage.
Consequences of the judgment
The ruling led to a major reform of private international law that came into effect in 1986. A previous marriage is no longer an obstacle to marriage if it has been legally divorced in Germany, even if the law of the foreign fiancé does not recognize the divorce. In addition, foreign law must in principle be measured against German fundamental rights, so that foreign law does not have to be applied in other cases if its application in a specific case would lead to an unsustainable result.