A couple of years ago, I attended two separate marriage ceremonies for the same couple. The couple, now happily married, consisted of a Jewish American-Israeli dual national and a British national of Indian Hindu descent. The Hindu wedding that took place in the United Kingdom was fascinating for me; it being the first, and so far the only Hindu wedding ceremony I have attended. It was absolutely beautiful and full of symbolic spiritual meanings. The couple and their relatives and friends then flew to Israel, where a second wedding, this time a “quasi- Jewish” ceremony was celebrated. It was a quasi-Jewish ceremony because under Orthodox Jewish law that governs marriages celebrated in Israel involving a Jewish citizen or resident, an inter-faith marriage is not recognized. Having been recognized as married under UK law, however, both Israel and the United States would recognize the couple as married.
The adherence of members of religious communities around the world to their respective matrimonial laws has raised much interest in exploring the meaning and impact of these laws on those who follow them as well as on the society where they live. Understanding the relationship between state law and religious matrimonial law appears to be valuable considering the diverse European population and the rising influx of refugees in Europe. According to US sources the population of France, for example, currently includes 63-66% of Christians (overwhelmingly Roman Catholic); 7-9% Muslims; 0.5-0.75% Buddhists; 0.5-0.75% Jews,; 0.5-1.0% others; and 23-28% unaffiliated. In Germany out of the total 82.8 million Germans, 22.2 million identified as Protestants (27%), 23.7 million as Roman Catholics (28.9%), and 100,000 as Jews (0.12%); another 4 to 4.7 million (5.4 to 5.7 %) identified as Muslims, the third largest group. According to German statistical reports for 2016 among asylum seekers in Germany 75,9% were Muslim; 12,2% Christians; 1,3% were not affiliated with any religion; 0,6% were Hindus; 5,9% Yazidi; and 4,1% others/unknown. Sweden does not keep statistics on religious identities or ethnicities but in 2016 close to 1.7 million of the 10 million individuals living in Sweden were born abroad. According to the Swedish Churches’ own statistics, 6.1 million Swedes were members of the Swedish church. Lutherans were estimated to 63% in 2016, while other religions (Roman Catholic, Jewish and Muslim) were estimated to make up 17% of the national total.
I was curious about the extent to which European countries with diverse populations accommodate religiously celebrated marital ceremonies. Three of my colleagues at the Global Legal Research Center who handle France, Germany and Sweden have informed me that those seeking to enter into marriage or obtain a divorce in these countries must generally comply with the appropriate civil law. The countries differ, however, as to the extent their laws provide accommodations to those wishing to undergo religious marriage or divorce.
French law does not recognize religious marriages. The Civil Code explicitly states that a marriage must be “celebrated publicly in a republican ceremony before the civil status officer [officier de l’état civil] of the town where one of the spouses, or one of their parents, has his/her domicile or residence…” (Code civil, art. 165). A marriage that has not been publicly celebrated before a competent civil status officer can be voided by a court at the request of the spouses, of their parents and ascendents (parents, grand-parents, great-grand-parents, etc.), of “any who have an actual and born interest” in challenging the marriage, or of the government. (Id. art. 191).
Both of these articles were in the very first Civil Code, adopted by Napoleon in 1804. (Code civil (1804), arts. 165 & 191). But the rule these provisions embody dates from the French Revolution. Indeed, the Constitution of 1791 provided that “the law would consider marriage only as a civil contract,” which needed to be registered by the government. (Constitution (1791), art. 7).
Nowhere does the French Civil Code give religious authorities any power to adjudicate divorces, and it used to be that all divorces needed to be pronounced by a judge. Since January 1, 2017, however, French married couples have the option of concluding a divorce by mutual consent without going to court. (Code civil, art. 229-1). Each spouse must be assisted by an attorney, and the divorce agreement must be registered with a notary. (Id.).
A different situation applies in Sweden. According to Elin who specializes in research on Scandinavian countries:
Marriage is codified in statute in Sweden (Marriage Code) but may be performed by local religious affiliations, such as the local Lutheran Evangelical Church, the Stockholm Synagogue or the Malmo Mosque.
There are really no specific laws regarding marriage in the church. The Swedish church for instance weds homosexual couples (bound by the civil code on who can marry); the churches have their own ceremonies but the requirements would be the same for all congregations (regardless of faith), i.e., both parties 18 years of age (no more than two people), present at the ceremony, entering into the relationship of free will, and no closer relation than first cousins (1 kap. 1 §; 2 kap. 1 §, 3 § ; 4 kap. 1 § 2 § Marriage Code).
Not all religious affiliations are automatically awarded a right to marry. To be granted a right to wed, a religious congregation must have a continuous presence in Sweden and respect the laws on marriage found in the Marriage Act (1 § Act on Right to Conduct a Marriage Ceremony by a Religious Congregation). However, the law does not force mosques and synagogues to marry same sex couples . Thus, a religious affiliation can receive a right to wed even though they do not perform ceremonies for same sex couples.
Also, divorce is regulated in law. (5 kap. Marriage Code).
Germany appears to have instituted a different approach for its sizeable non-German population. According to Jenny, a fellow In Custodia Legis blogger and our foreign law specialist for the European Union and German speaking countries,
In general, religious marriages are not considered valid under German law. A marriage entered into in Germany has to be performed in front of the registrar and the parties must declare that they wish to enter into the marriage. (Civil Code, § 1310, 1311). The registrar determines whether the requirements for the marriage (age, capacity etc.) are satisfied.
However, an exception applies if both parties are non-German citizens. According to the German Federal Statistical Office (Destatis), there were around 10 million people holding only foreign citizenship living in Germany at the end of 2016. The total population in Germany at the end of 2016 was estimated at 82.8 million. Out of those 10 million foreigners, approximately 1.2 million were Muslim (current as of the end of 2015). Due to the large number of people holding only foreign citizenship living in German, the exception might be invoked quite regularly. A non-German couple may be lawfully married before a person properly authorized by the government of the country of which one of the persons engaged to be married is a national, according to the formalities prescribed by the law of that country, e.g. diplomats, military officers, or clergy. For clergy, the foreign government has to submit a formal note verbale (a diplomatic note given to a foreign government) to the German authorities, which outlines the authorization.
Under German law a marriage may only be dissolved by judicial decision on the petition of one or both spouses (Civil Code, § 1564) based on irreparable failure of the marriage or unbearable hardship (Civil Code, § 1565-1566). “Private divorces”, which means divorces in which no administrative or judicial body has participated, do not fall under §§ 107, 109 of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction, and are therefore not recognized.
For Further Reading
The Law Library of Congress has a number of law titles on the interaction of family law and religion in Europe, including:
Managing family justice in diverse societies (Mavis Maclean and John Eekelaar, ed. 2013);
Doe Norman, Law and religion in Europe: a comparative introduction (2011);
Pauline Kruiniger, Islamic Divorces in Europe, Bridging the Gap between European and Islamic Legal Orders (2015); and
Muslim family law in Western courts (Elisa Giunchi, ed., 2014).
There are 15 individual entries under Annotated legal documents on Islam in Europe for: Belgium , Bulgaria, Croatia, Cyprus, Estonia, Finland, France, Greece, Italy, Latvia , Lithuania, Poland, Sweden , Switzerland , and the Netherlands.
We invite you to search our collections. We are always happy to learn of additional relevant sources that will deepen our knowledge of existing and emerging legal topics around the globe.