Prohibition of religious advance marriage

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The prohibition of religious advance marriage prohibits a church wedding and the religious celebrations of a marriage without the betrothed having previously declared at the registry office that they want to marry each other.

This prohibition existed in Germany from January 1, 1876 [§ 79 PStG / 1875] to December 31, 2008 [Art. 5 para. 2 sentence 2 PStRG / 2007] as well as in Austria from 1938 to 1955, it has existed again in Germany for so-called child marriages since July 22, 2017.

Since the end of this prohibition, church weddings have been permitted by the state both before and without a marriage at the registry office, but remain without legal effect, apart from any internal regulations of a community organizing the wedding.

Germany

history

The prohibition of religious pre- marriages came from a time when the state began to regard marriage, which had previously been carried out by clergy , as a state matter (see the Reich Law on the Notarization of Civil Status and Marriage of 1875). The law of 1875 was in the context of the culture war between the Catholic Church and the Prussian-Protestant dominated German Empire .

The prohibition was mainly directed against the Roman Catholic marriage law , which mandates the declaration of the marriage consensus before a priest if at least one of the bride and groom belongs to the Roman Catholic Church . According to the evangelical understanding ( Luther : "Marriage is a worldly thing") the state has the authority to introduce a civil marriage; Since then, the Protestant churches have recognized this as a marriage and see the church wedding only as a religious celebration on this occasion. Until the introduction of civil weddings, church weddings were, due to the lack of competent government agencies, also in the Protestant understanding of marriage; the changes were by no means undisputed and also led to splits.

The prohibition existed "unless one of the fiancés fell critically ill and postponement is not possible or there is a serious moral emergency that cannot be remedied in any other way, the existence of which has been confirmed by the competent authority of the religious body under public law " ( Section 67 PStG). In this exceptional case, the registry office had to be reported immediately ( § 67a PStG).

The Roman Catholic Church committed itself in 1933 in the Reich Concordat to comply with the ban (Art. 26), whereby the exceptions were defined in more detail. By exchange of notes of the papal state secretariat and the German embassy to the Holy See from 16./17. July 1956 the term was further specified.

Originally, the ban was actually a criminal offense ; In the course of time it was handled more and more laxly and finally turned into an administrative offense, in the end without the possibility of a fine . Therefore, at most, the imposition of a penalty payment according to § 69  PStG came into consideration. Most recently, the ban was largely of no practical significance.

The constitutionality of the regulation contained in Section 67 of the Personal Status Act (PStG) was controversial.

Prohibition task 2009

The new Civil Status Act , which came into force on January 1, 2009, no longer provides for a ban on religious marriage in advance. Due to the lack of practical meaning “at least in relation to the two large churches” and with reference to § 1310 BGB and the so-called imperial paragraphs , the authors of the draft law considered the provisions to be dispensable. On the other hand, a committee recommendation by the Bundesrat had formulated, with regard to the "other religious communities now widespread in Germany ", the alternative of "religious solemnity" to maintain the offense as Section 70 (1a), but the Bundesrat finally approved the law even without this prohibition to.

In Terre des Femmes' view , the 2009 amendment to the law favors both forced and multiple marriages . In particular, children would be religiously married and these marriages would only be legitimized by the state later, after they had reached adulthood, or not at all. The organization therefore calls for religious marriages to be permitted, as before, only after a civil marriage.

Partial reintroduction in 2017

Since July 22, 2017, according to Section 11 (2) PStG, "a religious or traditional act aimed at establishing a permanent bond comparable to marriage between two people, one of whom has not yet reached the age of 18", forbidden. "The same applies to the conclusion of a contract which, according to the traditional or religious ideas of the partners, takes the place of marriage." The prohibition introduced by the law on combating child marriages of July 17, 2017 lags behind the previous one in this respect, when only the marriage of minors is prohibited; on the other hand, the prohibition also covers non-religious, “traditional” acts, going beyond the previous one.

Canon Law

Roman Catholic Church

According to Catholic canon law , an effective marriage among Catholics only comes about when the vows are made before the priest or deacon (Can. 1108 § 1). The German Bishops' Conference, however, regards the regulations of the Reich Concordat as continuing, which means that the previous practice remains in principle. As an exception, however, according to the regulations for church marriages , the local ordinary can allow a church wedding without a civil marriage in the absence of a civil marriage.

Member churches of the Evangelical Church in Germany

According to the Protestant understanding, the legal act of marriage is a state matter, the marriage is therefore a worship service of a marriage that has already taken place (such as the way of life "marriage and marriage" of the Evangelical Church in Baden, II .: "The marriage is made by the promise of loyalty by wife and According to our legal system, this happens before the registrar. [...] The Church invites you to begin marriage in the name of God and to place the conjugal community under the gracious will of God Asking the community for God's blessing. ”). As a result, a marriage is only held after proof of the marriage (Art. 4 Para. 1 of the above-mentioned rules of life).

The change in the law will therefore not change anything for the Protestant churches. The authorized representative of the Council of the EKD for the Federal Republic of Germany and the European Union, David Gill, declared that there would be no classic Protestant wedding in the liturgical sense without a prior state marriage. In the report of a commission set up by the Council of the Evangelical Church in Germany, it is said that the legal binding and consequence of marriage does not want to ignore the evangelical theology out of inner insight. “This is the only way to regulate the criteria for marriage (publicly documented, permanent, exclusive and voluntarily entered into connection between man and woman, which is open to children), but also a responsible approach to their failure”. For the sake of the theological understanding of marriage, one cannot leave the legal dimension behind. It corresponds to the evangelical understanding of marriage and marriage that marriage is entered into as civil and legal and that God's blessing is awarded to it in a church service. A religious service accompanying a non-marital permanent cohabitation must therefore clearly differ in its form from a church wedding.

Austria

With the annexation of Austria in 1938, the civil status law valid in Germany in the version of the Civil Status Act 1937 also came into force in Austria. In 1945 this law was incorporated into the legal system of the Republic of Austria and remained in force until the end of 1983 with the (Reich German) paragraphs. In 1955 the Constitutional Court repealed the criminal law provision of § 67 PStG (see above) as unconstitutional due to a violation of religious freedom.

Switzerland

In Switzerland, a religious marriage may not be carried out before the civil wedding.

Liechtenstein

In Liechtenstein, too, marriage may only be entered into before the wedding organ of a religious community after the state wedding ceremony has been completed; religious solemnity may not be undertaken without presentation of the marriage certificate.

literature

  • Evangelical Church in Germany (EKD; Hrsg.): Should there be church marriages in the future that are not at the same time marriages in the civil law sense? To the evangelical understanding of marriage and marriage. An expert opinion. EKD-Texte 101, Hannover 2009 ( pdf , html ).

Web links

Individual evidence

  1. ↑ Final protocol to Art. 26 ( Memento of September 14, 2008 in the Internet Archive ): "A serious moral emergency is present if there are insurmountable difficulties or difficulties that can only be resolved with disproportionate effort to produce the documents required for the marriage in good time".
  2. ↑ Ulrich Rhode: Lecture notes on Religionsrecht ( Memento from December 10, 2015 in the Internet Archive ) (PDF; 1.2 MB), p. 79.
  3. ↑ This results from the reverse conclusion from § 68  PStG, which in its paragraph 1 does not refer to §§ 67f. referred.
  4. ↑ Gernhuber-Coester-Waltjen, § 11 I 3 p. 107; Coester, StAZ 1996, 33 (40); Staudinger-Strätz, Rn. 5 f.
  5. ↑ Art. 1, 5 para. 2 of the G on the reform of the personal status law v. February 19, 2007 ( Federal Law Gazette I p. 122 ) (PDF; see also: Personal Status Reform Act ).
  6. ↑ See § 70 PStG new version
  7. ^ Draft law of the federal government v. June 15, 2006, BT-Drs. 16/1831, p. 33. (PDF; 1.59 MB)
  8. ↑ Recommendations of the committees on item 9 of the 815th meeting of the Federal Council on October 14, 2005 ( Memento from August 31, 2016 in the Internet Archive ) Draft of a law on the reform of civil status law (Personal Status Reform Act - PStRG), item 33: On Article 1 (§ 70 para. 1a - new - PStG), BR-Drs. 616/2/05 of October 4, 2005
  9. ↑ Decision of December 15, 2006, BR-Drs. 850/06. ( Memento from January 2, 2014 in the Internet Archive ) (PDF; 16 kB)
  10. ↑ Terre des Femmes: Risks of forced marriage and “honor” murder are increasing - civil weddings must again take precedence over religious ones! (25.10.2012)
    Joachim Wagner: Polygamy in the Migrant Parallel Society . In: Die Welt , September 30, 2012.
    Joachim Wagner: In the name of Allah . In: Der Spiegel 25/2012, pp. 36–38.
  11. ↑ Chapter V Form of marriage. Can. 1108 - § 1. ( Memento of November 14, 2013 in the Internet Archive ) In: CIC, Title VII - Marriage , Diocesan Court of the Diocese of Linz. Retrieved September 14, 2011.
  12. ^ Press report by the chairman of the German Bishops 'Conference, Karl Cardinal Lehmann, following the spring general assembly of the German Bishops' Conference from February 11 to 14, 2008 in Würzburg, I.
  13. ↑ See marriage law (Catholic Church), section "Regulations between the Catholic Church and the respective state" .
  14. ↑ Regulations for church weddings in the absence of a civil marriage (PDF file; 15 kB)
  15. ↑ EKD: The reorganization of marriage does not change anything for the church. In: epd.
  16. ↑ EKD-Texte 101, Hannover 2009, see literature .
  17. ↑ See § 73 (Austrian) Personal Status Act 1983 in the legal information system of the Republic of Austria .
  18. ↑ ECLI : AT: VFGH : 1955: G9.1955 ; Paul Heinrich Neuhaus: Marriage and Childhood in a Comparative Legal Perspective. Mohr Siebeck, Tübingen 1979, ISBN 978-3-16-641522-2 , p. 54 ( side view in the Google book search ).
  19. ↑ Art. 97, Paragraph 3 of the Civil Code ; see also Motion 17.3639
  20. ↑ Art. 3 Paragraph 1 Marriage Act