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On marriages registered in church

Case No. 6/94

 THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA

 R U L I N G

 On the compliance of Paragraph 2 of Article 6, Article 11, and Paragraph 2 of Article 12 of the 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 court reporter—Sigutė Brusovienė

  1. Martinavičienė, a judge of the Plungė District Local Court, acting as the representative of the petitioner

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 21 April 1994, considered case No. 6/94 subsequent to the petition submitted to the Court by the Plungė District Local Court requesting an investigation into whether Paragraph 2 of Article 6, Article 11, and Paragraph 2 of Article 12 of the Matrimonial and Family Code are in compliance with the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

On 5 January 1994, the Plungė District Local Court, the petitioner, investigated the civil case upon the complaint lodged by Elena Razmienė pertaining to the refusal the notary of the Plungė district to issue a certificate of the right of succession under law.

By its ruling, the Plungė District Local Court has suspended the investigation of the civil case and is requesting that the Constitutional Court of the Republic of Lithuania establish whether Paragraph 2 of Article 6, Article 11, and Paragraph 2 of Article 12 of the 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 paragraph of Article 38 of the Constitution of the Republic of Lithuania it is specified that: “The State shall also recognise marriages registered in church”. Whereas in the second paragraph of Article 6 of the Matrimonial and Family Code it is established that only marriages contracted in State civil registry offices shall be recognised, 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 paragraph 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 the 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, providing 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 emerged. 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 paragraph of Article 38 of the Constitution specifying that “the State shall also recognise 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 the 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:

The 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 Ruling of the Constitutional Court of the Republic of Lithuania “On the Compliance of the Resolution of the Government of the Republic of Lithuania (No. 872) ‘On a Partial Amendment to the 16 October 1992 Resolution (No. 773) of the Government of the Republic of Lithuania’ of 23 November 1993 with the second paragraph 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’” of 16 March 1994 (Official Gazette Valstybės žinios, 1994, No. 22-366). Legal relations appear only on the grounds prescribed by valid laws.

In legislation, the 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 believe 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 paragraph of Article 38 of the Constitution that “The State shall also recognise marriages registered in church” may not be applied to legalisation 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 paragraph of Article 38 that “The State shall also recognise 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 recognise 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 a procedure for recording church weddings may be evaluated only as a temporary measure because the State should determine by law a clear and fixed procedure for the official recording of church weddings, the realisation of legal consequences ensuing from marriages, and the resolving of disputes thereof.

In the fourth paragraph of Article 38 of the Constitution it is established: “The State shall also recognise marriages registered in church”. In the second paragraph of Article 6 of the Matrimonial and Family Code, however, it is promulgated that only marriage contracted in State civil registry offices shall be recognised, 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 paragraph 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.

The Matrimonial and Family Code was adopted at the time (1969) when only state registration of marriages was recognised, therefore, it deals only with civil registry offices. The Constitution of the Republic of Lithuania which is now in force also recognises 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 paragraph 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 paragraph, 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 paragraph of Article 38 of the Constitution that “The State shall also recognise marriages registered in church”. The contents of said constitutional provision permits drawing 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 emphasised 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 a prerogative of the legislature. Thus, the second paragraph of Article 12 of the Matrimonial and Family Code only partly contradicts the statement of the fourth paragraph of Article 38 of the Constitution that “The State shall also recognise 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 gives the following

ruling:

  1. To recognise that the second paragraph of Article 6 of the Matrimonial and Family Code of the Republic of Lithuania contradicts the fourth paragraph of Article 38 of the Constitution of the Republic of Lithuania.
  2. To recognise that the norm of the second paragraph of Article 12 of the 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 paragraph of Article 38 of the Constitution of the Republic of Lithuania.

This ruling of the Constitutional Court is final and not subject to appeal.

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

Algirdas Gailiūnas                           Kęstutis Lapinskas                           Zigmas Levickis

Vladas Pavilonis                              Pranas Vytautas Rasimavičius         Stasys Stačiokas

Teodora Staugaitienė                       Stasys Šedbaras                               Juozas Žilys