Civil Status Registration

From Max-EuP 2012

by Walter Pintens

1. Notion

Civil status registration enables state authorities to efficiently record the civil status of citizens and to issue corresponding certificates. This registration is of the utmost importance for both citizens and state authorities. It is very important for citizens in that it enables them to prove their civil status. An ability to prove one’s civil status is of major importance not only in family law related matters but it also plays a crucial role in the substantiation of claims in succession and social welfare matters. The interest of state authorities in civil status registration extends beyond just being enabled to enrol citizens as it affords them an opportunity to issue documents such as identity cards, passports and driving licences. Finally, registration also provides state authorities with all the data required for their planning for the future.

2. Historical development

The origins of civil status registration can be traced back to the 14th century and the registers kept by parishes which were governed by the Decretum Tametsi issued by the Council of Trent in 1563. That these registers constituted a germane source of information not only for the church but also for states was soon recognized, and countries such as France and Austria, as well as the Nordic states, tried to exert influence upon the maintenance of these registers. However, state-controlled registration only emerged after the French Revolution. The French Constitution entrusted the municipalities with the keeping of registers—a model which spread across the whole of Europe with the exception of some legal orders which opted for a more centralized system or even maintained parochial registration.

3. The registry office

Most legal systems entrust local authorities with the organization of the registry office and maintenance of the register. In some systems, such as the Belgian, French, Greek, Italian and Polish ones, the tasks of the registrar are carried out by a municipal politician. This figure is typically a mayor or elderman who is assisted or substituted by a civil servant. In other systems like the German, Dutch, Hungarian or Swiss ones, politicians do not undertake registration tasks, save for the performance of marriage ceremonies in some systems. In the latter systems, the registrar is a civil servant who fulfils his tasks independently without being bound by instructions from a higher authority.

In Spain, the Registro Civil is a matter for the court. The tasks of the registrar are performed by a judge.

In the United Kingdom, the constituent individual countries are responsible for the organization of civil status affairs. The basic principles of this organization are the same in England, Wales, Scotland and Northern Ireland, even though there is disparity in practice. Every country has established a General Register Office headed by a Registrar General who is even competent to enact regulations. Locally, local councils rather than municipalities are competent. These councils appoint Local Registrars. The organization of the Slovenian system, with the Home Office as its central institution and then ancillary local administrations, each of which is responsible for several municipalities, is comparable to the UK system.

The Nordic legal systems, which for a long time retained the parochial registration of births, marriages and deaths and reserved public registry offices for citizens who were not members of a church, recently introduced a public civil status system which falls primarily under the authority of the enrolment office. In Sweden, the tax administration is responsible for civil status affairs and the local tax authorities carry out the tasks of the registry office.

In Croatia, Italy, Poland, Portugal, the Nordic states, Spain and the United Kingdom, church weddings have effects in the civil legal order and priests draft the marriage certificates.

In many legal systems, some registry offices possess a broad territorial competence such that a registry office in a country’s capital has international competence (eg in Belgium, Germany or Hungary).

The Vienna Convention on Consular Relations of 24 April 1963, in addition to a great number of bilateral treaties, enables states to mandate diplomatic missions and consulates with tasks related to civil status affairs.

Since the registrar is not subject to instructions from higher authority, the powers of superior authorities (eg the Ministry of Justice or the Home Office) are usually limited to disciplinary measures, whereas more substantive control of civil status registers falls within the remit of the courts (eg Belgium, France, Greece and Italy). In some legal orders, an administrative body is responsible for both tasks (eg Croatia, Austria, Poland and Switzerland).

4. The maintenance of registers and other tasks

In most legal systems, three separate registers for births, deaths and marriages are kept (eg in Belgium, France and Austria). Some systems maintain additional registers, eg for registered partnerships (eg Denmark and Germany).

The maintenance of registers is described in detail within the civil codes or civil status laws.

On the bases of the parties’ declarations, a civil status certificate is drafted and subsequently recorded in the correlating register. Court decisions, for instance those related to paternity claims or declarations that change the civil status (eg recognition of a child), are charted and transcribed in the appropriate civil status register and a marginal note is made on the original document. In England, the original certificate remains unaltered and changes are recorded in an amendment register.

Civil status registers are now often maintained electronically and printed out on paper, something which necessitated an adjustment of the applicable rules and produced problems with regard to data protection. In some legal systems, the whole civil status registration is administered electronically and paper registers have been abolished (eg Slovenia and Switzerland).

Issuing transcripts and excerpts of civil status registers falls within the competence of the registry offices. Who may obtain those transcripts and excerpts is governed by law.

In many legal systems, the registrar carries out additional tasks. In Belgium, Poland and Hungary, for example, the registrar is responsible for the population registers. In Portugal, he has competence for divorces by mutual consent.

5. The International Commission on Civil Status (CIEC)

The International Commission on Civil Status (Commission Internationale de l'Etat Civil, CIEC) is an international organization founded in 1950 and based in Strasbourg. Since Austria’s recent withdrawal, it consists of 15 European states (Belgium, Croatia, France, Germany, Greece, Hungary, Italy, Luxemburg, the Netherlands, Poland, Portugal, Spain, United Kingdom, Switzerland and Turkey) and Mexico. The CIEC’s main aim is to promote international cooperation in civil status affairs and exchange of information between registrars.

A comparative study, the Guide Pratique International de l’État Civil, is accessible via the webpages of the CIEC.

The CIEC promotes harmonization in the field of civil status matters through conventions and recommendations. A series of rather technical conventions, which foster the recognition of civil status related documents drafted by a contracting state in other Member States, are of particular importance. An example of such a convention is that of 8 September 1976 on the issuing of multilingual extracts from civil status registers. These extracts are drafted in accordance with a uniform scheme. They are just as enforceable as domestic civil status documents in a Member State and are to be accepted without any authentication or accreditation.

6. Civil status and Union law

The European Union has no formal competence in respect of the substantive law on civil status. On the basis of Art 81 TFEU/65 EC, the European Commission is preparing a regulation relating to the application of the maxim of mutual recognition in civil status matters. In that context, the Commission ordered a Comparative study on the legislation of the Member States of the European Union on civil status, practical difficulties encountered in this area by citizens wishing to exercise their rights in the context of a European area of justice in civil matters and the options available for resolving these problems and facilitating citizens’ lives (2008) that suggests measures to guarantee the mutual recognition of civil status certificates within the Member States. In addition, the study recommends the creation of a Civil Status Office which should carry out the tasks of a clearing house. On 14 December 2010 the European Commission published a green paper titled ‘Less bureaucracy for citizens: promoting free movement of public documents and recognition of the effects of civil status records’ (COM(2010) 747 final).

The European Court of Justice (ECJ) confirmed—in accordance with the Konstantinidis judgment (law of names)—that competence for civil status matters lies with the Member States—ECJ Case C-336/94 – Dafeki [1997] ECR I-6761. Notwithstanding the ECJ’s recognition that Union law does not impose an obligation upon a Member State to treat ex-post rectification of civil status certificates performed by authorities of another Member State in the same way as rectifications performed by the own state, the ECJ held that the authorities and courts of each Member State must respect civil status documents issued by another Member State because the free movement of workers, as protected by Art 45 TFEU/39 EC, would otherwise be impeded. An exception to that general rule can only be made where the accuracy of the civil status document is gravely challenged by concrete evidence related to the specific case. The Dafeki judgment approximates the effects of domestic and foreign civil status documents in terms of their evidential value.

Literature

Franz Görgen and Michael Will, Der Standesbeamte (1983); Alexander Bergmann, Murad Ferid and Dieter Henrich (eds), Internationales Ehe- und Kindschaftsrecht mit Staatsangehörigkeitsrecht (6th edn, since 1983); Commission Internationale de l’État Civil (ed), Conventions et Recommendations (1956–1987) (1988); Walter Zeyringer, ‘Registration of Civil Status’ in IECL IV (1995) ch 2, paras 355 ff; Commission Internationale de l’État Civil, Question d’actualité en droit des personnes dans les Etats de la CIEC (1999); Ole Kramp, Vom Aufgebot zum europäischen Heiratsregister (2007); Chantal Nast, ‘Civil-status registration and position of registrars in some member States of the International Commission on Civil Status’ (2007) <www.ciec1.org/ Documentation/Nast2-Civil-status-registration-and-position-of-registrars-in-ICCS-member States-Lublin30-05-2007EN.pdf>; Walter Pintens, ‘Familienrecht und Personenstand. Perspektiven einer Europäisierung’ [2008] Zeitschrift für Standesamtswesen, Familienrecht, Staatsangehörigkeitsrecht, Personenstandsrecht, internationales Privatrecht des In- und Auslands 97; Commission Internationale de l’État Civil (ed), Guide Pratique International de l’Etat Civil (2009) <http://ciec1.org/GuidePratique/index>; Walter Pintens, ‘Civil Status and Various Aspects of Truth: Legal Truth’ in International Commission on Civil Status (ed), Civil Status in the XXIth century: dusk or dawn? (2010) 44.

Retrieved from Civil Status Registration – Max-EuP 2012 on 02 October 2022.

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