Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
RULING
On the compliance of Part 2 of Article 6, Article
11, and Part 2 of Article 12 of Matrimonial and
Family Code of the Republic of Lithuania with the
Constitution of the Republic of Lithuania
21 April 1994, Vilnius
The Constitutional Court of the Republic of Lithuania,
composed from the Justices of the Constitutional Court Algirdas
Gailiūnas, Kęstutis Lapinskas, Zigmas Levickis, Vladas
Pavilonis, Pranas Vytautas Rasimavičius, Stasys Stačiokas,
Teodora Staugaitienė, Stasys Šedbaras and Juozas Žilys,
the secretary of the hearing - Sigutė Brusovienė,
the petitioner's representative - D. Martinavičienė, judge
of Plungė District Court,
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of Law on the
Constitutional Court of the Republic of Lithuania, in its
public hearing of 21 April 1994 conducted investigation of Case
No 6/94 subsequent to the petition submitted to the Court by
Plungė District Court requesting to investigate if Part 2 of
Article 6, Article 11, and Part 2 of Article 12 of Matrimonial
and Family Code are in compliance with the Constitution of the
Republic of Lithuania.
The Constitutional Court
has established:
The petitioner - Plungė District Court on 5 January 1994
conducted the investigation of the civil case upon the
complaint lodged by Elena Razmienė pertaining to the refusal of
Plungė district notary to issue a certificate of the right of
succession under law.
Plungė District Court by its ruling has suspended the
investigation of the civil case and is requesting the
Constitutional Court of the Republic of Lithuania to establish
whether Part 2 of Article 6, Article 11, and Part 2 of Article
12 of Matrimonial and Family Code are in conformity with
Article 38 of the Constitution of the Republic of Lithuania.
The Court bases its request on the fact that in the fourth
part of Article 38 of the Constitution of the Republic of
Lithuania it is specified that: "The State shall also recognize
marriages registered in church". Whereas in the second part of
Article 6 of the Matrimonial and Family Code it is established
that only marriages contracted in State civil registry offices
shall be recognized, and religious ceremony of marriage as well
other religious rituals shall have no legal effect. In Article
10 of the Matrimonial and Family Code it is set forth that
marriage shall be contracted in State civil registry offices,
and in the second part of Article 12 of same Code it is
declared that rights and duties of spouses shall be created
only by marriages contracted in State civil registry offices.
These rights and duties appear from the day the marriage is
registered in civil registry offices.
During preliminary investigation of the case, a
representative of the party concerned explained:
(1) Norms of the Constitution have no retroactive
validity. In Article 151 of the Constitution the following
provision is established: "This Constitution of the Republic of
Lithuania shall become effective the day following the official
promulgation of the results of the Referendum...". Thus, the
Constitution entered into force only at the end of 1992. In the
opinion of the representative of the party concerned,
considering that said norms of the Matrimonial and Family Code
contradict Article 38 of the Constitution, the validity of the
Constitution should be transferred back to 15 August 1987, i.e.
back to the time when those factual matrimonial relations
appeared. The representative of the party concerned also
reasons that if church wedding had been contracted in 1945, it
would not mean, however, that the validity of Article 38 of the
Constitution would be possible to transfer several decades
back.
(2) Recognition of retroactive validity of the norms of
the Constitution might cause confusion in property and personal
relations. In the opinion of the representative of the party
concerned, cases are possible when at first marriage is
contracted in church with one person and then - in the office
of civil registration - with another one. It becomes unclear in
that case, which from the two marriages shall be certain and
valid and which shall be not. Sometimes polygamy may be
artificially created in such manner, which is by no means
permissible. Therefore, the representative of the party
concerned maintains that said norms of the Matrimonial and
Family Code contradict Article 38 of the Constitution only in
cases when church wedding has been contracted only after the
enforcement of the new Constitution.
The Government of the Republic of Lithuania has explained
that the provision of the fourth part of Article 38 of the
Constitution specifying that "the State shall also recognize
marriages registered in church" is applicable only to church
weddings which have been contracted after the enforcement of
1992 Constitution. At present, when Church is not properly
prepared yet for the registration of marriages (i.e. is not
ready to make records of marriage, to send second copies to the
Department of Statistics and Lithuanian State Civil Registers'
Archives, to issue certificates of uniform pattern of church
wedding, to put stamps certifying marriage in citizens'
passports, etc.), church wedding shall be re-registered in
civil registry offices. While re-registering church wedding,
civil registry offices do not apply requirements of Article 13
of Matrimonial and Family Code (Term, upon expiration of which
the marriage is registered) and Article 14 (Solemnity of
contracting marriage).
The Constitutional Court
holds that:
Jurisprudence and legal traditions allow us to draw the
conclusion that in the sphere of legal regulation a general
rule is valid: a law has no retroactive validity. That means
that normative acts are generally not applied to such facts and
legal consequences that had appeared before the enforcement of
said normative acts (The Constitutional Court of the Republic
of Lithuania Ruling of 16 March 1994 "On the compliance of the
Government of the Republic of Lithuania resolution No 872 "On
partial amendment to the Government of the Republic of
Lithuania resolution No 773 of 16 October 1992"", adopted 23
November 1993, with the second part of Article 14 of the Law on
Enterprises and the Law "On the Procedure for Promulgation and
Enforcement of Laws and Other Legal Acts of the Republic of
Lithuania". (Official Gazette "Valstybės žinios" No 22-366).
Legal relations appear only on the grounds prescribed by valid
laws.
In legislation, adoption of retroactive norms of laws is
an exception. This occurs only when the law itself specifies
its retroactive validity, or when laws nullifying the
punishability for acts or administrative responsibility, or
mitigating the punishment or administrative penalty. In other
spheres of law, adoption of a retroactive law can have a
negative impact on persons' rights. A retroactive law intrudes
into the sphere of regulation of the law which was earlier in
effect and changes persons' rights and duties prescribed by a
previous law. Due to this, legal consequences appear which may
be favourable for one party and unfavourable for another. Thus
it would be wrong to consider that a law improving the status
of a person (except criminal and administrative responsibility)
has always retroactive validity, because in ownership law, upon
improving the status of one party of legal relation, the status
of the other one can become worse.
The Constitution of the Republic of Lithuania was adopted
on 25 October 1992 by referendum of all citizens of the
Republic, and came into force the following day after the
promulgation of the results of the referendum, i.e. on 2
November 1992. Neither the Constitution itself nor the Law "On
the Procedure for the Enforcement of the Constitution of the
Republic of Lithuania" provides for the retroactive validity of
the constitutional norms. In Article 2 of said Law it is
established that Laws, other legal acts, or parts thereof which
were in effect on the territory of the Republic of Lithuania
prior to the adoption of the Constitution of the Republic of
Lithuania, shall be effective provided that they do not
contradict the Constitution and this law, and shall remain
effective until they are either declared null and void or
co-ordinated with the provision of the Constitution. Therefore,
the provision of the fourth part of Article 38 of the
Constitution that "The State shall also recognize marriages
registered in church" may not be applied to legalization of
church wedding contracted prior to the enforcement of the
Constitution, i.e. until 2 November 1992, either. If until this
date marriage had not been registered in civil registry offices
as it is prescribed by the norms of the Matrimonial and Family
Code it did not become a juridical fact and did not cause any
legal consequences because it could not cause them under laws
that had been in effect earlier.
If the norms of the Constitution comprised the facts that
had appeared earlier and had no legal effect, that would mean
the expansion of the sphere of legal regulation - i.e. the
validity of legal norms would be referred back. This, however,
would contradict a general legal principle, that "a law has no
retroactive validity".
The provision of the fourth part of Article 38 that "The
State shall also recognize marriages registered in church"
entered into force along with the Constitution and has no
retroactive validity. This provision of the Constitution shall
regulate present and future legal relations i.e. shall
recognize marriages registered in church only after 2 November
1992. In accordance with the procedure of official registration
of church weddings, the latter must be re-registered in civil
registry offices. It should be noted, that the so-called
"re-registration" may be evaluated only as temporary official
record of marriages, but not as a legal fact of marriage
registration. It is not "re-registration" but registration of
marriage (either performed by State or by Church) which is the
beginning of legal relations of marriage and related to them
rights and duties. Such procedure for recording of church
weddings may be evaluated only as temporary measure because the
State should determine by law a clear and fixed procedure for
official recording of church weddings, realization of legal
consequences ensuing from marriages, resolving of disputes
thereof.
In the fourth part of Article 38 of the Constitution it is
established: "The State shall also recognize marriages
registered in church". In the second part of Article 6 of the
Matrimonial and Family Code, however, it is promulgated that
only marriage contracted in State civil registry offices shall
be recognized, whereas religious ceremony of marriage just like
other religious rituals shall have no legal effect. This norm
by itself (ipso) contradicts said norm of the Constitution.
In Article 11 of the Matrimonial and Family Code it is set
forth that marriages shall be contracted in State civil
registry offices. This norm does not contradict the provision
of the fourth part of Article 38 of the Constitution that "The
State shall register marriages, births and deaths", as this
norm only specifies which institutions shall perform state
registration of marriages.
Matrimonial and Family Code was adopted at the time (1969)
when only state registration of marriages was recognized,
therefore, it deals only with civil registry offices. The
Constitution of the Republic of Lithuania which is now in force
also recognizes state registration of marriages, therefore, the
legal norm establishing one of the institutions that would
perform said registration, does not contradict the
Constitution. The fact that the law fails to mention church
registration of marriage should be interpreted as a flaw in the
law.
In the second part of Article 12 of the Matrimonial and
Family Code it is determined that rights and duties of spouses
shall arise only from marriages that are contracted in State
civil registry offices. These rights and duties shall appear
from the day when marriages are registered in civil registry
offices. In said part, two provisions having independent legal
effect are specified, therefore, their interpretation must also
be different.
The first provision, that rights and duties of spouses
shall arise only from marriages contracted in State civil
registry offices, contradicts the statement of the fourth part
of Article 38 of the Constitution that "The State shall also
recognize marriages registered in church". The contents of said
constitutional provision permits to draw the conclusion that
rights and duties of spouses shall arise also from the day when
marriages are registered in church.
The second provision, that rights and duties of spouses
shall arise from the day marriages are registered in civil
registry offices, actually establishes the beginning of
marriage and connected with it legal relations. Civil registry
office, performing said registration, in compliance with the
context of this norm, means that not the subject but legal fact
of registration of marriage contract is emphasized here, i.e.
under the contents of this norm, it is important not who shall
register marriages but the fact that rights and duties of
spouses shall appear from the day of marriage registration.
Therefore, failing to mention the subjects of marriage
registration in said norm and Article 11, must be interpreted
as a flaw of law but not as a norm which contradicts the
Constitution. The Constitutional Court does not resolve issues
concerning flaws of law. This is the prerogative of
legislators. Thus, the second part of Article 12 of Matrimonial
and Family Code only partly contradicts the statement of the
fourth part of Article 38 of the Constitution that "The State
shall also recognize marriages registered in church".
Conforming to Article 102 of the Constitution of the
Republic of Lithuania as well as Articles 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of
Lithuania has passed the following
ruling:
1. To recognize that the second part of Article 6 of
Matrimonial and Family Code of the Republic of Lithuania
contradicts the fourth part of Article 38 of the Constitution
of the Republic of Lithuania.
2. To recognize that the norm of the second part of
Article 12 of Matrimonial and Family Code of the Republic of
Lithuania that rights and duties of spouses shall be created
only by marriage contracted in State civil registry offices,
contradicts the fourth part of Article 38 of the Constitution
of the Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.