Case No 6/94                    
                                                                                
                                                                                
                                                                                
                                                                                
                 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 ÖOn the                    
compliance  of the Government of the Republic  of  Lithuania                    
resolution No 872 ÕOn partial amendment to the Government of                    
the  Republic of Lithuania resolution No 773 of  16  October                    
1992ÕÕ,  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.                                                                      
     Justices of the Constitutional Court:                                      
                                                                                
Algirdas       Gailiūnas            Kęstutis       Lapinskas                    
Zigmas Levickis                                                                 
                                                                                
                                                                                
                                                                                
                                                                                
                                                                                
Vladas   Pavilonis           Pranas  Vytautas   Rasimavičius                    
Stasys Stačiokas                                                                
                                                                                
                                                                                
                                                                                
                                                                                
                                                                                
Teodora        Staugaitienė           Stasys        Šedbaras                    
Juozas Žilys