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