1. Marriage as a legal institution
In nearly all European states (except for Andorra and the Vatican State), marriage is a legal institution regulated by state law. It is, today, mainly characterized as a lifelong personal union between two individuals based on mutual consent given in a formalized way. Neither reproduction nor the wish or ability to procreate nor sexual relations are legally necessary elements of marriage despite the fact that the latter, especially, is very common. Though there is a common approach to the institution of marriage in contemporary legal systems in Europe, there are still major differences in the general understanding as well as in more detailed rules.
The concept of marriage as a legal institution governed by state law is the result of long development and different influences. In the past, marriage was regarded solely as a social status (by early Roman law), as a family contract (in Judaism and Islamic religion (Islamic law)) partly with religious character and/or as a sacrament (Orthodox and Roman Catholic Church, Hinduism). Religions which view marriage as indissoluble need rules to ensure the binding character of this relationship. This is also true if the consent of the future spouses is required as an element for its formation. Thus, both the sacramental and the contractual approach to marriage made some kind of regulation necessary. The question, however, of who may formulate and control the relevant rules has long been under discussion. The struggle between church/ religious bodies, on one side, and the state, on the other, has been, and still is (outside Europe and, with regard to certain issues, even within Europe), especially characteristic of marriage law.
During the Middle Ages, in most parts of Europe the Catholic and the Orthodox Churches dominated this field of human relationships and superseded, and finally rejected, other forms of marriage (such as the Germanic marriage (Germanic Codes (Germanenrechte))). The church had jurisdiction for regulating these matters (canon law). The understanding prevailed that marriage was a lifelong relationship between one woman and one man, was based on mutual consent and was formed in and by the church. Nevertheless, the leading families tried to influence the applicable rules. They especially wanted to be able to dictate the choice of the spouse in order to secure the manner and direction in which family assets would be transferred. The church tried to diminish family influence by stressing the freely given, mutual consent of the spouses as an essential element for the formation of a marriage (cf Romeo and Juliet). By restricting consanguineous marriages, canon law broke with the European (especially Mediterranean) tradition of next-of-kin marriages, which preserved family assets and enabled the accumulation of power and wealth.
The long struggle between the Catholic Church, on one side, and the leading families and rulers, on the other side, was settled for parts of Europe by the compromise reached at the Council of Trento (1545–63). The Catholic Church succeeded in making the consent of the future spouses and the participation of a priest in the formation of marriage a prerequisite to a valid marriage but gave in by allowing some family control through the formalization and publication of the marriage banns. This step of the Catholic Church, as well as the schism of the protestant churches and the separation of Henry VIII from Rome, slowly prepared the ground for state intervention into these matters in the 16th century. At first, state rules mostly copied the regulations of canon law, such as the Ordinance of Blois of 1579 and the Anglican Church canons, which were built upon the pre-Tridentine canon law (enacted in 1604 at the Synod of Canterbury and recently revised). Though the idea that a marriage could only be formed with the blessing of the Church subsisted for a long time and though religious values still influence the approach to marriage in some European states, state laws achieved priority. Legal rules concerning marriage began to differ from the original unified canons, and different understandings of marriage emerged.
In part these state laws on marriage aimed at preventing certain marriages (such as marriage between the poor) or restricting choices of partners for civil servants and for persons of high military rank or they promoted other paternalistic purposes. The prohibition of interracial marriage is an extreme example of illegitimate state intervention into these matters of private concern. Claims for greater personal freedom in formation, administration and dissolution of marriage have been made since the age of the Enlightenment and have been successful in reducing impediments to marriage in state legislation. However, the dissolution of marriage, especially, has been treated differently across Europe and through time, and it continues to be a delicate issue to tackle. Though nearly all European legal systems (except Malta, Andorra and the Vatican State) allow divorce today, the approach to questions of central importance to the issue still varies.
2. Human rights and constitutional background
Various international Conventions proclaim the freedom to marry to be a fundamental right (human rights and fundamental rights (ChFR and ECHR)), though they leave some margin of appreciation for the national legislatures. Many national constitutions in Europe guarantee this freedom and also the protection of marriage. The Charter of the European Union, mirroring the present standard of human rights, protects privacy and the freedom to marry (Arts 7, 9). Thereby, personal relations are enabled and protected against outside intrusion. The same is true with regard to the Lisbon Treaty and some European directives, which oblige the Member States to guarantee freedom of movement (fundamental freedoms (general principles)) and to respect intimate relationships. Despite the margin of appreciation which is left by the international instruments and the constitutions to the national legislatures, key issues, like freedom to marry for heterosexual couples and the ability to dissolve a marriage, are generally accepted across Europe and fortified by the European Court of Human Rights (ECtHR). However, there is great diversity with regard to other central features of the law, such as whether homosexual unions are excluded from marriage and the degree of freedom spouses may have in ending the marriage and determining the consequences of dissolution.
3. Characteristic elements of marriage
The most important element of formation of marriage within European legal systems today is the free consent of the spouses. No European state allows the exercise of direct force or duress. The freedom from indirect force by religious conviction, family sanctions or social pressure cannot be guaranteed by legal rules, but may serve as grounds for nullification if the consent of the spouses was given under such pressure.
Legal impediments to marriage have been reduced to a bare minimum during the last decades in order to allow free entrance to marriage. All restrictions on the right to marry must have a legitimate reason. Protection of minors, for example, is accepted as legitimate grounds for setting minimum age requirements. (Today, however, marriages among minors are not common, as the actual marriage age has risen far beyond majority.) There are no maximum age limits for marriage; even deathbed-marriages are accepted. Some legal systems allow post-mortem marriages (with limited effects). Prohibitions on consanguineous marriages are limited to the very core circle of relatives, sometimes only for relatives in the direct line and for siblings of full blood (Sweden). This restriction maintains the taboo against sexual relations between relatives of the core family.
Following the tradition of the canon law, all European marriage laws forbid bigamy. Thus, at least in theory, European marriage is presently monogamous. Because entering a polygamous marriage is regarded as a violation of public policy, this prohibition also applies to cases where foreign law allowing polygamy must be applied with respect to the validity of the formation of the marriage. However, many European states respect polygamous marriages when entered into abroad and validly formed under the applicable law. Therefore, in European states with many immigrants from the Islamic world (Islamic law), polygamous and monogamous marriages exist side by side.
Further, according to the traditional view in Europe, marriage has always been a union of one man and one woman. Since the beginning of the 1990s, however, a lively debate has arisen as to whether it is legitimate to restrict the choice of a partner to a person of the opposite sex. The treatment of transsexuals as belonging to the desired sex (by the ECtHR) and the establishment of registered partnerships, besides marriage, in many countries have opened new horizons for solutions to these questions. Some legislatures have allowed registered partnerships for homosexual couples (and some also for heterosexuals); others have, in addition or instead, opened marriage to same-sex partners.
The formalization of the act of conclusion is another characteristic element of marriage today. But this formal act need not necessarily be performed before a state authority. Though most European states offer a civil ceremony by a civil registrar, many allow a church ceremony as an alternative. In the latter case, the prerequisites for entering into marriage must be met and approved by a state institution before the church ceremony can take place, and registration by a civil registrar must follow in order to secure certainty of status. Only in Andorra and the Vatican State, where canon law applies exclusively, the church ceremony as such suffices.
Marriage was distinguishable from other unions by this formalization for many centuries. The introduction of registered partnerships (first introduced in the Scandinavian countries and limited to homosexual unions; later extended to other unions and generally spreading across Europe) has reduced the differences between marriage and other unions as to the kind of formalization. Thus, formalization as such is no longer an act particular to marriage exclusively. The prerequisites to and consequences of marriages and of registered partnerships sometimes vary between the different legal systems, but they tend to be very similar or even the same. Thus, in Europe, homo- and heterosexual partnerships exist as institutions separate from marriage but resemble marriage in nearly all elements and consequences.
In addition to marriages and registered partnerships, persons of the same or of different sex form ‘factual unions’ (cohabitants and others) without any formalization. To date, factual unions have only been regulated as a legal institution—within Europe—by few legal systems, like the autonomous region of Galicia (foral law); in contrast, outside of Europe, New Zealand, Australia and Brazil have a set of legal rules that apply to factual unions. Other legal systems only address special problems that arise due to those informal unions, often with respect to the distribution of property; some acknowledge the fact of living together in some general norms. Whether and to what extent the act of living together outside of the bond of marriage results in mutual responsibility and is sufficient to allow legislatures and courts to impose regulation and legal consequences on such unions is still under discussion. The special protection which is afforded to marriage by the ECHR and by many European constitutions is extended to informal partnerships (cohabitants and others) only to a lesser extent or not at all. It is under discussion whether this amounts to discriminatory treatment from a functional standpoint (discrimination (general)).
The special protection afforded to marriage by state laws becomes especially visible in questions of immigration and asylum. Many European legal systems also provide special privileges for married couples in tax law, in public benefits and in state assistance. With regard to children and parental responsibility, however, the marriage status of the parents has lost most of its significance.
There are special rules for the marital life. Today, the male predominance, common for centuries, has given way to equal treatment of husband and wife within marriage (gender, discrimination (general)). Spouses may conclude contracts with each other as well as with third persons. In many legal systems, they may arrange their legal rights and obligations by agreement (marital agreements) before or after marriage (eg choice of names, family roles, property allocation matrimonial property laws). Mandatory rules concerning married life are diminishing. Most such rules aim at protecting the weaker spouse (protection of privacy; protection against violence; review of unconscionable contracts). European legal systems differ considerably, however, with regard to the right of the spouses to end their marriage and to determine the consequences of divorce.
Though marriage is regarded as a lifelong union, all European legal systems, except for Malta, Andorra and the Vatican State, provide for the dissolution of marriage by divorce, which enables the former spouses to remarry. However, there are differences with regard to the requirements in substantive law as well as in procedure. To date, divorce under most of the national European laws can be granted exclusively by state institutions; either by courts or by administrative bodies. The latter is preferred in the Scandinavian countries. Portugal is so far the only European country allowing a consensual divorce by registration only (as does Japanese law in certain circumstances). In other European legal systems, such ‘divorce light’ is under discussion though not yet available. Thus, in the rest of Europe, spouses have to go to courts especially established for family disputes. Whether private divorces, like the talagh of Islamic law, can take place within a European legal system or will be recognized when issued elsewhere is a question of private international law and the law of international civil procedure.
If the spouses consent to the divorce, most legal systems require only a few, uncomplicated prerequisites to be fulfilled before a divorce is granted, and the procedure is simple and expedited. In some legal systems, the consent of the spouses alone still does not suffice. This is because, according to the general understanding of marriage in those societies, the dissolution of marriage is not the prerogative of the spouses. Thus, in these legal systems separate grounds for divorce are required in addition to the consent of the parties (eg the irretrievable breakdown of the marriage, which may be presumed if the spouses have been separated for a certain period of time). In most legal systems, when a divorce is contested, it is necessary to prove that the spouses have been separated for a considerable period of time before a divorce decree can be granted. Some systems provide for a divorce for ‘fault’ (a ‘fault divorce’) as an alternative in cases of contested divorce or instead of a divorce based on a period of prior separation. However, most European legal systems no longer provide for fault divorce, as such, thereby avoiding situations that would result in the airing of the parties’ ‘dirty laundry’ in court.
The procedural rules aim at an amicable dissolution and mediation or, at least, mediative elements loom large in court proceedings.
The consequences of divorce also vary between the legal systems. In some legal systems, the consequences still depend on questions of fault. Marital agreements may play a role, but they need not bind the judge. Such is the case in English law. In German law, however, marriage contracts are binding but subject to judicial review. This comparison provides an example of the different emphasis legal systems place on autonomy of the spouses, on one hand, and on protection of the weaker party, on the other; but this comparison also reflects the different approach to the role of judges in the different legal systems.
4. Harmonization and unification
To date, there is no unified law of marriage and neither the Conventions of the European Council nor the Hague Conventions nor other international instruments have addressed these issues. According to the prevailing view, the European Union lacks competency to legislate in the area of substantive family law. However, the European Union is competent to deal with issues of private international law and international civil procedure (European civil procedure) and has done so by regulations on jurisdiction for divorce proceedings and the recognition of divorce decrees (Brussels IIbis—Reg 2201/2003 replacing Brussels II—Reg 1347/1999). In addition, the private international law rules relating to divorce (Rome III applying in 14 Member States) and maintenance obligations (European Maintenance Regulation in connection with the Hague Protocol 2007) have been mostly unified. The question of whether the principle of free movement (fundamental freedoms (general principles)) obliges the Member States to recognize marriages entered into in another Member State is under discussion. There is an ambitious project underway by European scholars to elaborate principles of family law which could be acceptable to all Member States. This project, supported by the European Union, is directed at the development of model rules for legislative or judicial reforms within the national laws as a first step towards harmonization. A model code has already been presented.
Certainly, there is convergence in the legal systems with regard to the reduction of impediments to marriage and to gender equality. However, the basic understanding of marriage differs quite fundamentally within Europe: Andorra and the Vatican State’s sacramental and indissoluble union of one man and one wife, ruled solely by canon law, standing at the one extreme, and the Swedish union between two persons of the same sex, dissolvable at any time, occupying the other. Thus, it is likely that the harmonization of marriage law throughout Europe is not imminent.
Emil Friedberg, Das Recht der Eheschließung in seiner geschichtlichen Entwicklung (1865); Dagmar Coester-Waltjen and Michael Coester, ‘Formation of Marriage’ in IECL IV (1991) ch 3; Walter Pintens, European Family Law (Casebook) (2001); Katharina Boele-Woelki (ed), Perspectives for the Unification and Harmonisation of Family Law in Europe (2003); Nina Dethloff, ‘Europäische Vereinheitlichung des Familienrechts’ (2004) 204 AcP 545; Ingeborg Schwenzer, Model Family Code from a Global Perspective (2006); Rembert Süß and Gerhard Ring, Eherecht in Europa (2006); Ingeborg Schwenzer, ‘Convergence and Divergence in the Law on Same-Sex Partnerships’ in Masha V Antokolskaja (ed), Convergence and Divergence in Family Law in Europe (2007); Dagmar Coester-Waltjen, ‘Human Rights and the Harmonisation of Family Law in Europe’ in Katharina Boele-Woelki and Tone Sverdrup (eds), European Challenges in Contemporary Family Law (2008).