Is traditional multilateral rule relating to capacity to marry in line with the Constitution? Some observations with respect to two recent conflicts cases submitted to the Italian Constitutional Court

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Article

Reference

Is traditional multilateral rule relating to capacity to marry in line with the Constitution? Some observations with respect to two recent

conflicts cases submitted to the Italian Constitutional Court

ROMANO, Gian Paolo

ROMANO, Gian Paolo. Is traditional multilateral rule relating to capacity to marry in line with the Constitution? Some observations with respect to two recent conflicts cases submitted to the Italian Constitutional Court. Yearbook of Private International Law , 2005, vol. 7, p. 207-238

Available at:

http://archive-ouverte.unige.ch/unige:46473

Disclaimer: layout of this document may differ from the published version.

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IS MULTILATERAL CONFLICT RULE ON CAP A CITY TO MARRY IN LINE WITH

THE ITALIAN CONSTITUTION?

SOME OBSERVA TI ONS SUGGESTED BY TWO RECENT CONFLJCT CASES SUBMITTED TO THE IT A LIAN CONSTITUTION AL COURT

Gian Paolo ROMANO'

I. Introduction

li. The Legal Framework and the Decision of the Court A. Provisions at Stake

B. Grounds for Constitutional Challenge C. The Court's Answer

III. Non-Delivery of the Certîficate for Procedural Reasons IV. Law as a Facility and the Beneficiaries of the Law

A. Law as a Facility for Private Arrangements B. The Conflict Rule and the Beneficiaries of the Law C. The Consequences of the Nationality Nexus D. A Comparative Law Look

V. Distorted Use of Public Policy

A. Foreign Rule or Conflict Rule as Target of Public Po licy?

B. The Nature of the Public Policy Exception C. Regular Use of Public Po licy by the Courts

D. Parallel ta a French Decision on Declaration ofParentage VI. The Proper Constitutional Basis for Challenge

A. Fundamental Rights vs. Principle ofEquality B. The Two Steps of the Equality Assessment C. Assessing the Equivalence of the Situations

l. Substantive Equivalence and Spatial Equivalence

2. Equivalence Between Citizens Domiciled Abroad and Foreigners Domiciled in the Forum

3. Equivalence Between Citizens Regardless of the Nationality or Residence of The ir Proposed Spouse

D. Assessing the Reasonableness of the Difference ofTreatment 1. Pm-pose of the Difference of Treatment

2. Appropriateness of the Instrument 3. Reasonableness of the Purpose VII. Conclusions

• PhD at the Universities of Paris 2 (Panthéon Assas) and Padua; Legal Adviser at the Swiss lnstitute of Comparative Law, Lausanne.

Yearbook ofPrivate International Law, Volume 7 (2005), pp. 205-237

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Gian Paolo Romano

I. Introduction

In two recent conflict cases, the Tribunal of Rome raised sorne doubts as to the constitutional compatibility of ltalian rules of priva te international law on capacity to marry.¹ln the first case, a Tunisian woman wished to marry an Italian man in Italy. However, because her intended spouse was not Muslim, the Tunisian authorities were unwilling to deliver a certificate stating that there were no irnpediments to the marriage un der Ttmisian law. In the second case, a Syrian man proposed to marry an Italian woman in Italy. He too was unable to obtain the requisite certificate from the Syrian authorities because he had not yet served in the army in Syria. In bath cases, the civil registrar in Rome refused to authorise the bans and, as a result, to solernnise the rnarriage. The interested parties challenged this refusai before the Tribunal of Rome. The Tribunal of Rome submitted to the Constitu- tional Court the question whether the rule of Jtalian law leading to the refusai to solemnise an Italian marriage between foreign citizens and Italian citizens based on their inability to obtain the 'no-impediment certificate' may be held to be contrary to the constitutionally-based right to marriage. The Constitutional Court disrnissed the challenge.

Although the facts triggering the ruling are rather trivial, the suspicion they arase in the mind of the Tribunal of Rome and the subsequent reasoning of the Constitutional Court in dismissing the cases act as a stimulus to look at the traditional conflict rule on essential validity of marriage under a perspective which is virtually unexplored so far in ltaly:' thal ofits cornpliance with the Constitution.

1 Order ('Ordinanza') of 30 January 2003, n. 14, in: Riv. dir. int. pr. proc. 2003, 937 ff., with a commentary by D'ARLENZO S., 'La Corte costituzionale e il matrimonio dello straniero in Italia', ibidem, 924 ff. See also PlGNATELLI L., 'Pubblicazioni di rnatrimonio di cittadino straniero', in: Semplice 2003, N. 3, at 7. The request by the Tribunal of Rome (Order of3 September 200 1) is published in: Gazz. U./J., N. 24, 19 June 2002, 116 ff.

2 This is also true of most European countries, the notable exception being Gennany, where a spectacular mling conceming the traditional conflict rule on capacity to many was rendered by the Federal Constitutional Tribunal (BundesveJfàssungsgericht) on 4 May 1971, in: BVerfGE, vol. 31, 58 f., also in: RabelsZ. 1972, 145 f. and in: BAREL B./ COSTANTJNO B.

(eds.), Norme di conjlitto italiane e controllo di costituzionalità, Padova 1990, 202 f.

206 Yearbook of Private International Law, Volume 7 (2005)

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Multilateral Rule on Capacity ta Marry and the !talion Constitution

II. The Legal Framework and the Decision of the Court

A. The Provisions at Stake

According to Article 27 of the ltalian Private International Law Act 1995,' the law applicable to the capacity to marry is the national law of each spouse. Arti- cle 116(1) of the Italian Civil Code specifies the way the civil registrar shall rnake sure thal foreign law is cornplied with. The interested party has to obtain from the authority of the country of his or her nationality a certificate stating that he or she bas the capacity to marry by the law of thal country (the 'no-impedirnent certificate'). Failure by the authorities to deliver such a certificate may have two different bases, which may be referred to as purely procedural (or administrative or techni- ca[), on the one hand, and substantive, on the other.⁴A procedural failure arises where a certificate is not delivered due to an administrative oversight or breakdown or negligence of the foreign authority or sirnply because there is no such authority having the power to deliver it. A substantive failure occurs where the certificate is not delivered because the party requesting it is under a legal impediment to marry according to the foreign applicable law.

B. Grounds for Constitutional Challenge

The provision forrnally considered by the Court was Article 116( 1) of the Civil Code. In its reference to the Constitutional Court, the Tribunal of Rome invoked Article 2 of the Italian Constitution that 'protects and fosters the enforcement of fundarnental rights of human beings', tacitly including the 'right to marry' .' The Tribunal of Rome frrst submitted thal Article 116(1) tàils to allow for proof of capacity other than by way of the foreign no-impediment certificate. By lirniting the means ofproving foreign law to the production of the certificate, Article 116(1) restricts the enforcernent of the right to marry. This follows bec au se en forcement of this right in Ital y depends exclusively on the attitude of foreign authorities; the forum judge before whom the refusai is challenged has no power under existing provisions to authorise the marriage without the certificate. As a result, the Tribu-

3 Law No. 218 of 31 May 1995. For a general presentation of the Act in English, see

BALLARINO T. 1 BoNOMl A., 'The Italian Statute on Private International Law of 1995', in:

this Yearbook 2000, at 99-131.

4 See D'A RIENZO S. (note 1 ), at 928, who makes a distinction between 'impedimenti formali' and 'impedimenti sostanziali'; see also the arguments of the Italian govemment before the Constitutional Court quoted in the Court's ruling (note 1), at 939.

5 See e.g. the anonymous commentator of the decision by Trib. Reggio Emilia, 29 September 1986, in: Dir. fam. pers. 1987, 268 ff., at 271. Also see D'A RIENZO S.

(note 1), at 933 and CA NTA A., 'Coppie mi ste e limiti di applicazione dell' art. 116 c.e.', in:

Fam. e dir. 1996, 455 f., at 456, note 5.

Yearbook of Private International Law, Volume 7 (2005) 207

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Gian Paolo Romano

nal of Rome concluded thal, for the process to be in line with the Constitution, Article 116(1) should either be struck down or include the possibility thal capacity be proved directly to the civil registrar by adequate documentation offered by the parties themselves and that, should any uncertainty arise, the judge be empowered to make further enquiries.

C. The Court's Answer

The Court observed thal Article 116(1) more often than not results 'in facilitating rather than restricting the celebration of marriage', for its purpose is to release the civil registrar from any potentially burdensome investigation into foreign law.⁶As the case law shows, where the certificate is not delivered for administrative or procedural reasons, the Italian judge is allowed to look into foreign law despite the inaction or silence of the foreign authority, notably by giving weight to other evi- dentiary documents offered by the parties. Though the Tribunal of Rome does not seern to have express! y raised the question of substantive irnpediments in the cases at issue, the Constitutional Court look care to suggest thal marriages prohibited under applicable foreign law may be solemnized in Italy despite these impediments because the rules under attack do not operate in isolation but together with other mles, notably the public po licy clause, which allow solemnisation notwithstanding any foreign prohibition which is contraty to public po licy. Because the certificate requirernent could be circurnvented based on existing provisions and principles, the Court concluded that there was no basis, and no need, to question the constitution- ality of the rules at stake.

As implicitly noted by the Court, a distinction should be made between cases where non-delivery of the certificate is due to procedural or technical reasons, on the one band, and those where such non-delivery flows from substantive reasons, on the other. A proper analysis of the issues should proceed from this distinction.

III. Non-Delivery of the Certificate for Procedural Reasons

In the view of the Court, the judicial authority before which the denia! is chal- Jenged may itself verity thal the conditions under foreign law are met. 1t is not entirely clear, however, from which legal basis, according to the Court, this possi-

6 See SCOVAZZT T., 'Il matrimonio del cittadino straniero in Italia', in: Riv. dir. int.

pr. proc. 1984, at 438-439; MIELE A., Il matrimonio dello straniero in Italia, Padova 1972, at 13; D' ARIENZO S. (note 1), at 928; CANTA A. (note 5), at 456. Cp. PANOZZO R., 'La capacità matrimoniale dello straniero', in: Dir. fam. pers. 1988, at 568. In the recent case- law, see Trib. Belluno, 18 May 2002, in: Riv. dir. int. pr. proc. 2002, 1071 f., at 1072.

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jl;[ultilateral Rule on Capacity ta Many and the Italian Constitution bility flows. Neither Art. 116(1) nor Art. 98' of the Civil Code alone can reasonably be invoked in support. The case law to which the Court refers shows thal public po licy- now codified in Article 16 of the PIL Act- is what has been resorted to"

One may wonder, however, whether public po licy is a proper basis to justify bypassing the certificate requirement when non-delivery is due to procedural reasons. To be sure, in each country there is almost invariably an authority able to con finn at least the identity of the citizens involved and the ir civil status. The case may well arise, however, where there is no foreign authority to deliver the no-im- pediment certificate. Sorne legal systems do not require such a certificate in similar circumstances and, consequently, do not contemplate such an authority to deliver it for use abroad.' This is a case of technical impossibility for Art. 116(1) to operate.'"

Is the public policy exception the appropriate tool to escape this impossibility, which ultimately flows from the somewhat parochial belief of the Italian legislator that the certifying power is distributed abroad as it is in ltaly?¹¹First, if one wishes to speak of public policy, one should note that it is not the substantive public policy which is at stake here - for it is not the substantive foreign law which raises diffi- culty - but a sort of procedural public policy. More importantly, public policy implies in its traditional meaning a value judgment with respect to the contents of the foreign law. It would not seem to be reasonable to fonnulate a value judgment on the way the certifying power is organised or distributed abroad. ¹²It appears nonetheless reasonable in these cases to grant Italian authorities the power to assess

7 Art. 98 (2) of the Civil Code allows the interested party to challenge the refusal of the civil registrar before the Tribunal, who then settles the issue after having heard the public prosecutor (pubblico ministero ).

"Cp. D'ARIENZO S. (note 1), at 934.

9 See Trib. min. Roma, 19 July 1989, in: Dir. fGm. pers. 1990, 538 f., at 540. See D'ARlENZO S. (note 1), p. 981; PANOZZO R. (note6), at568; SCOVAZZI T. (note6), at438 and 448, MIELE A. (note 6), at 32 f. The typical case îs the United States, with which Ital y reached an agreement by way of an exchange of notes of 29 July and 18 August 1964 to overcome this impasse (see the text in: GIULIANO M. 1 PocAR F. 1 TREVES T., Codice della convenzioni di diritto internazionale privato e processuale, 2 ed., Milano 1981, 39 f.): the U.S. citizen should present a swom statement executed before the U.S. consular authority instead of the no-impediment certificate. See MIELE A. (note 6), at 33; SCOVAZZl T. (note 6), at 448; Cuoco G., 'Matrimonio dello straniero in Italia, Articolo 116, 1 o co., C.C. - Problematiche', in: Stato civ. 1988, 595 f., at 596; PIGNATELLI L. (note 1), at 6; D'ARIENZO S. (note 1), at929, note 10; ARENAS., 'Osservazioni in merita al 'nulla asta' di cui all'art. 116 c.e. per il matrimonio in Italia del cittadino straniero', in: Stato civ. it. 1986, at 492 f.

10 According to MIELE A. (note 6), at 32, this is a case of an 'impossibilità giuridica';

of 'impasse d'ordre technique', talks MuiR WATT H., La fonction de la règle de conflit de lois, thèse dactyl., Paris II 1985, at 490 f, and CALLÉ P., L'acte public en droit international privé, Paris 2004, at 87.

11 Cp. PANOZZO R. (note 6), at 557.

12 Cp. PANozzo R. (note 6), at 540 who warns of the risk of a 'pericoloso sindacato sull 'organizzazione arnministrativa adottata dall'ordinarnento giuridico straniero'.

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Gian Paolo Romano

the capacity to marry under foreign law, just as it does in any case of application of foreign law. One can most assuredly argue that not to do so would run against constitutional principles.¹³lndeed, first-instance courts have often suggested this.¹⁴

If this is so, one may wonder whether what raises doubts under these circumstances as to its being in harmony with fundamental conceptions incorporated in the Constitution is actually the foreign law - more precisely the foreign pro- cedural or administrative system- in that it does not contempla te an authority able to deliver the ce1iificate of no impediment required by the Italian rule or rather the

!ta lian rule itself which provides thal, lac king this certiticate, the civil officer has to refuse to solemnize the marriage even if other evidence reasonably suggests that foreign law is complied with. The Tribunal of Rome's reasoning leads one to suspect thal the public po licy deviee is here actually used to attack not so rnuch the foreign rule but rather the rule of the forum." lfthis is so, the natural purpose of the public policy clause, i.e. to make sure that foreign rules are in tune with fundamental policies and values- which, according to the Italian courts, are, at least in this matter, almost invariably incorporated in the Constitution¹⁶^- has been silently

n See clearly BALLARTNO T. (con la collaborazione di BONOMl A.), Diritto internazionale privato, 3. ed, Padova 1999, at 394; PANOZZO R. (note 6), at 550 and 552, quoting Corte Cast. n. 18 of 22 January 1982, in: Stato civ. it. 1982, at 265 f.; SCOVAZZl T.

(note 6), at 440; VlTTAE., Diritto internazionale privato, VoL II, Torino 1973, at 193-194.

14 See e.g. Trib. Milano, 11 October 1947, in: Arch rie. giur. 1948, 195 f.; Trib.

Potenza, 30 November 1989, in: Dir. fam. pers. 1990, 558 f., at 560; Trib. Reggio Emilia, 29 September 1986, in: Dir. fam. pers. 1987, 268 f, at 271; Trîb. Camerino, 12 April 1990, in: Riv. dir. int. pr. proc. 1991, 800 f., at 801; Trib. Barcellona, 9 March 1995, in: Dir. fam.

pers. 1996, 164 f., at 165; Trib. Torino, 24 June 1993, in: Dir. fam. pers. 1993, at 1181;

Trib. Torino, 24 February 1992, Riv. dir. int. pr. proc. 1992, 985 f., at988, Trib. Napoli, 29 April 1996, in: Fam. e dir. 1996, 454 f.; Trîb. Treviso, 15 April1997, in: Riv. dir. int. pr.

proc. 1997, 744 f., at 745; Trib. Pisa, 31 May 1996, in: Toscana giur. 1996, 1005 f, at 1007;

Trib. Belluno, 18 May 2002, in: Riv. dir. in/. pr.proc. 2002, 1071 f., at 1072.

15 With regard to substantive impediments, Trib. min. Bologna, 9 February 1990, in:

Dir. JGm. pers. 1990, 928 f. appears to con finn such a suspicion.

16 This bas been made clear by the Constitutiona1 Court- see Cort. Cost.7 22 January 1982, n. 18, in: Raccolta ufficiale delle sentenze e delle ordinanze della Corte costituzionale (hereinafter: 'Raccolta') 1982, 165 f., at 199. Arnong the lower court's decisions, see particularly Trib. Roma, 9 July 1968, in: Giur. mer. 1970,464 f; Trib. Verona, 6 March 1987, in: Stato civ. it. 1987,201 f.; Trib. min. Roma, 19 July 1989, in: Dir.fam. pers. 1990,538 f;

Trib. min. Balogna, 9 February 1990, in: Dir.fam. pers., 1990, 928 f.; Trib. Genova, 4 April 1990, in: Giur. mer. 1990, 1195 f.; Trib. Camerino, 12 Apri11990, in: Riv. dir. int. pr. proc.

1991, goo f.; Trib. Torino, 24Fcbruary 1992, Riv. dir. int. pr. proc. 1992, 985 f.; Trib.

Torino, 24 June 1993, in: Dir. fam. pers. 1993, at 1 181; Tri b. Barcellona, 9 March 1995, in:

Dir . .fam. pers. 1996, 164 f.; Trib. Napoli, 29 April1996, in: Fam. e dir. 1996,454 f.; Trib.

Taranto, 13 July 1996, in: Giur. mer. 1996,284 f.; Trib. Pisa, 30/31 May 1996, in: Toscana giur., 1005 f; cp. Trib. Treviso, 15 April1997, in: Riv. dir. int. pr. proc. 1997, 744 f.; Trib.

Belluno, 18 May 2002, in: Riv. dir. int. pr. proc. 2002, 1071 f., where, if the Constitution is not expressly mentioned, the 'diritti fondamentali ed inviolabili dell'uomo' are at stake: this wording reproduces the 'diritti inviolabiti dell'uomo' protected by Art. 2 of the Constitution.

On the contribution supplied by the constitutional provisions and princip les to the shaping of 210 YearhookofPrivate International Law, Volume 7 (2005)

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Afultilateral Rule on Capacity to Many and the Italian Constitution extended to monitor the compliance with the Constitution of the rule of the forum itself and to make its circumventing possible wh en it is not.

To be sure, such a heteroclite use of public policy as a conflicts deviee makes practically redundant any constitutional control of Art. 116( 1) by the Con- stitutional Court itself. This is indeed the conclusion reached by the Consütutional Court in the case at issue.¹⁷One may argue however that, in order to make the certificate prerequisite ineffective, a constitutional challenge of the rigorous forum rule inescapably requiring such a certificate would have been a better option with respect to both conflicts and constitutional methodology than the use of conflict public policy, which, to reach the sarne result, forces the judge to retrieve a foreign rule and to judge it repugnant to a fundamental forum policy. Il has even been suggested that the use by courts of public policy to make domestic rules or values in effective through the ir mere non-application in the specifie case instead of tran- siting through the declaration of non-compliance with the Constitution may repre- senta serious infringement of constitutional principles.¹⁸Be that as it may, though neither the Tribunal of Rome nor the Constitutional Court took any particular in- terest in scholars' discussions on the subject, commentators have increasingly

public policy generally, also see Court of Cassation of 6 September 1980, n. 5156, in: Giust.

Civ. Mass. 1980, fasc. 9, and of 25 May 1985, in: Giust. Civ. Mass. 1985, n. 3209, fasc. 5.

Among scholars, see BALLARJNO T., Costituzione e diritto internazionale privato, Padova 1974, esp. at 177 f.; ID. (con la collaborazione di BoNOMT A) Diritto internazionale privato, 3th ed., Padova 1999, at 398 f.; GlARDINA A., 'L'eguaglianza dei coniugi nel diritto internazionale privato', in: Riv. dir. int. pr. proc. 1974, 5 f., at 27; BAIULE G., 'Principi fondamentali dell'ordinamento costituzionale e principi di ordine pubblîco internazionale', in: Riv. dir. int. pr. proc. 1986, at 8; PISILLO PAZZESCHI R., 'La sentenza 7111987 della Corte costituzionale, il ruolo dell'ordine pubblico e l'attuale regime di conflitto del divorzio', in:

BAREL B. / COSTANTINO B. (note 2), 23 f., esp. 26-27; MENGOZZT P., ibidem, at 82-83;

LAGüîv1.ARSINO G., 'Principio di eguaglianza e norma straniera discrîminatoria frai nubendi a causa della disparitas cu/tus', in: Giur. mer. 1990, 1196 f., at 1204 f.; ID., 'Irrilevanza, per contrasta con l'ordinc pubblico e col principio di eguaglianza, del diniego allo straniero del nulla osta alle nozze per motivi religiosi', in: Giur. mer. 1995, 702 f., at 708 f.; CANTA A (note 5), at 456; VENCHIARUTTI A., 'Matrimonio dello straniero e impedimenti di carattere religioso', in: Fam. e dir. 1996, 445 f., at 447; cp. Cuoco G. (note 9), at 596.

17 As Prof. Ballarino noted in a similar context (BALLARINO T., 'Le norme di diritto intemazionale privato davanti alla Corte costituzionale. L'abrogazione parzîale dell'art. 18 Disp. preL ',in: Riv. not. 1987, at 663-664, note 1), 'fa parte dello stile della nostra Corte Costituzionale ricorrere a scappatoie formali per evitare prononce su materie forse poco sentite'.

18 BARTLE G. (note 16), at 6: 'Il procedimento di dîfesa incentrato sui principi di ordine pubblico intemazionale non puà, invece ( ... ) esscre seguito dai giudice ordinario neî confronti di regole nazionali. Un tale procedimento infatti, costituirebbe un inammissibile attentato ai principi supremi della divisione dei poteri e della certezza del diritto. Tali principi non permettono che autorità diverse da quelle costituzionalmente competenti possano condizionare (pure solo attraverso il procedimento della disapplicazione ne\ caso concreto) la validità e l'efficacia di valori 'nazionali' direttamente posti dallo Stato'.

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shown dissatisfaction with Art. 116( 1) itse1f and sorne of them have direct! y ques- tioned its cornpliance with the Constitution.'"

IV. Law as a Facility and the Beneficiaries of the Law

Moving to the arguably more important question of the substantive impediments, which were the ones at stake in the two cases at issue,²⁰the Constitutional Court unequivocally suggested that, here again, no constitutional concerns are justified because the judicial authority before which the refusai is challenged may, under existing legislation, take no account of those impedirnents that are against public policy and thereby authorise the celebration of the rnarriage despite the non-delivery of the certificate. According to the Court, the legal basis for this outcome is here again, more explicitly, the substantive public policy of Art. 16 of the PIL Act.

Again, this raises the question whetber this is an appropriate instrument. This point is arguably more complex than the Court suggests and deserves sorne further at- tention. In so doing, we will take the liberty to depart from the specifie arguments which were raised in the proceedings and reason in general terms.

A. Law as a Facility for Private Arrangements

The purpose of a significant proportion of priva te law ru les - so two distinguisbed legal tbeorists, Hart²¹and Raz²², remind us- is to provide facilities for private arrangements. These rules are 'facilitative rules'²³in that they set out the conditions

19 PANOZZO R. (note 6) puts an end to his thorough study on Art. 116(1) by cate- gorica!ly maintaining that this provision is contrary to the Constitution 'nella parte in cui non dispone che il giudice italiano possa autonomamente acclarare la capacità matrimoniale dello straniero sulla base della legge nazionale ( ... )'.This is precisely wbat the Tribunal of Rome suspected, except that, according to latter, the provision sbould state tl!at adequate documentation may be supplied by the parties to the civil registrar itself, without having to transit through the judicial authority. ln favour of an amendment of Art. 1 16( 1) also pleads ARENAS. (note 9), at 493; also see VENCHIARU"ITI A. (note 16), at 448-449.

20 lt is clear that the procedural fact of non-delivery of the no-impediment certificate by the foreign authority on the basis that, according to foreign law, the party concemed bas no capacity to marry, cannot ilselfbe contrary to Italian public policy. Of course, it would be more practical if the reasons for refusai were substantiated by the foreign authority itself, but Art. 116(1) does not and indeed cannot require the foreign authority to doit. The interested parties or the judicial authority may be informed by the relevant diplomatie channels, as took place in the two cases at issue: see the Order of the Tribunal of Rome (note 1 ), at 117.

21 The Concept of Law, 2"d ed., Oxford 1994, particularly at 9 and at 27 f.

22 The Authority of the Law, Oxford 1979, at 169.

23 This expression is taken from TEITELBAUM L.E., 'Family History and Family Law', in: Wis. L. Rev. 1135 (1985), e.g. at 1178; HART L. (note 21 ), at 41, speaks of 'power- 212 Yearbook ofPrivate International Law, Volume 7 (2005)

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Multilateral Rule on Capacity to Marry and the /talian Constitution

under which an individual may, if he or she so wishes, take advantage of the facilities they offer, e.g. to make val id contracts or wills, to establish valid companies, to have parentage validly declared, to validly adopt and be adopted, and so on. What- ever the legal system to which they belong, substantive rules on capacity to marry do fa11 within this category. These rules provide that, if one of the individuals to whom they are addressed fulfils conditions A, B and C (age, mental ability, no consanguinity with the other spouse, and so on), he or she may, if he or she so wishes, get married, thereby giving rise to a legal relationship, the marital relationship, from whicb a nurnber of legal effects flow. Under this perspective, facilitative rules offer 'huge and distinctive amenities'²⁴to the individuals to whom they are addressed- which may therefore be best described as the potential users or benefi- ciaries of these rules - because 'by providing facilities for private arrangements between individuals [they] help [] individuals pursuing ends oftheir choice'.²⁵

B. The Conflict Rule and the Beneficia ries of the Law

The deep-rooted paradigm in contlicts methodology is the bilateral or multilateral choice of law rule. The purpose of this type of rule is notoriously to identify, for each category of legal relationships, the contact which is perceived by the forum as being the strongest, the one expressing the most significant relationship. According to the usual phraseology, such a contact becomes the connecting factor for that category. To the extent that the law is a facility for private arrangements, it may legitimately be said that conflicts rules of a country are called upon to establish in the fust place which category of individuals may take advantage of the laws of that country, that is, which category of individuals may, by fulfilling the conditions set out in the relevant substantive facilitative rules, validly give rise to the legal relationships of their wishes.²⁶Un der this perspective, the conflict rule of a country has the purpose or the etfect of determining the circle ofpotential users or beneficiar- ies of the facilities provided by the substantive facilitative ru les of this country.²⁷

conferring rules'. On the 'funci6n facilidadora' ofprivate law in a similar sense, see in the contlicts literature GARCIMARTIN F.A., La racionalidad economica del derecho inter- nacional privado, Cursos de derecho internacional y relaciones internacionales de Vitoria Gasreiz, 2001, esp. at 128 f.

24 So HART L (note 21), at 41.

25 So RAz J. (note 22), at 170.

26 Cp. KOGAN T., 'Towatds A Jurisprudence of Cboice of Law: Tbe Priority of Fairness over Comity', 62 N. Y. U.L. Rev 651 ( 1987): '( ... ) an individual who wishes to marry is empowered to enter into [marital] relationship by virtue of a state's law defming who may marry and un der what circumstances'.

27 See clearly HEUZÉ V., 'La volonté en droit international privé', in: Droits 1999, 113 f., at 122 (with regard to succession): 'si la loi française permet, dans une certaine mesure, au de cuius de disposer de ses biens à cause de mort, le rôle de la règle de conflit successorale doit être de délimiter le cercle des individus qui jouissent de cette autorisation de la loi française'.

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By so doing, the conflict rule inevitably procures that any and all categories of individuals who fall outside this circ le cannat in princip le take advantage of this

facility.²~ Each connecting factor identifies one category of beneficiaries and each traditional multilateral nlle, as said above, incorporates only one connecting factor.

As a consequence, only one category of individuals may benefit from the facilita- rive rules of the State, i,e, the individuals which have witb the relevant State the link selected as a connecting factor. Accordingly, all other categories of individuals are excluded by the conflict mle from using the facility offered by the law of the forum, no matter how otherwise strong may be their relation with that country.

This is a logical necessity flowing directly from the structure of the single con- necting factor conflict rule.

C, The Consequences of the Nationality Nexus

By choosing nationality to govem capacity to marry, ltaly has restricted to Italian citizens the benefit of the ltalian rules of the Civil Code enabling indi\\iduals fulfilling a number of conditions to give rise to a marital relationship in Italy. As a consequence, Italy in principle refuses the right to invoke Italian rules to any other categories of individuals, including foreigners domiciled or resident in Italy or wishing to get married to an Italian citizen, including when the latter is also dorniciled or resident in Italy.²⁹

It would seem that the Tribunal of Rome faced this very state of affairs, ln the two cases under its scrutiny, this particular effect of the traditional conflict rule was apparent in ali its crudeness. A Syrian man and a Tunisian woman, very possibly having bath their domicile and residence in Italy (this is certainly the case for

28 Of course, one may abject that, while excluding any other individuals from the benefit of its rules, the forum state allows these individuals to talee advantage of the rules of foreign countries. To counter this objection suffice it to say, with regards to capacity to marry in Italy, that this îs not really the case, for Art. 1 16(2) of the Civil Code (requiring the compliance by the foreign citizen with Art. 85, 86, 87 n. 1, 2 and 4, 88 and 89 of the Civil Code) jointly with a judicîally-based rule imposing the respect of the minimum age set forth in Art. 84 (Trib. min. Roma, 19 July 1989, in: Dtr. fàm. pers. 1990, 538 f; cp. also Trib.

min. Bologna, 9 February 1990, in: Dir . .fam. pers., 1990, 928 f.) provide that virtually all requirements stated by Italian law must also be complied with by foreigners wishing to marry in Italy. See SCOVAZZI T. (note 6), at 433-434, QUADRI R.,Applicazione della legge in generale, Bologna-Roma 1978, at 119 f.; also see Rm.1ANO G., in: Rev. cri!. 2006 (forth- comîng). Furthermore, the rules of a foreign country are ex hypothesis different from those of the forum, and it may weil be the case - indeed these are the only situations where a conflict rule is actually necessary - where the individual concerned, white having capacity under the law whose benefit is denied to him or her, does not have capacity under the law whose benefit is offered to him or ber.

29 On the rigorous consequences of the conflict rule adopted by Ital y with respect to the favor matrimonii, cp. CARELLA G., Art. 27, in: Riforma del sistema italiano di diritto lnternazionale privato (BARIAT11 S. ed.), in: Nuove leggi civili commentate 1996, esp.

at 1159,1161 and 1163,

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Multilateral Rule on Capacity ta A1arry and the ltalian Constitution the Tunisian woman),³⁰wished to marry, in Italy, Itahan citizens having their domicile or residence in Italy." They wished in practice to take advantage of the ltalian rules enabling a persan to get married if he or she fulfils a nurnber of essential conditions set forth in the ltalian Civil Code, which they did fulfil. The conflicts rule excludes these persans from the circle of the individuals who may directly claim the benefit of !ta lian provisions on capacity ta many. Is this exclusion in line with the Italian Constitution? Before attempting to answer this question, let us look briefly at solutions in other countries.

D. A Comparative Law Look

The conflict ru les of a number of countries differ significantly from the ltalian orres. They do not restrict the benefit oftheir law to only one particular category of individuals, to be identified by one particular connecting factor, be it nationality or domicile or residence, to be referred to the interested party only. Instead, they en large the range of beneficiaries, often considerably, in two cumulative ways: a) by adopting two connecting factors ~ both nationality, on one side, and domicile/residence, on the other si de - which are alternatively sufficient for the individual to daim the benefit of their laws; and b) by enabling an individual having no such ties but wishing to get married to an individual who does have one such tie to av ail hi rn or herself oftheir laws. Let us take sorne examples.

According to Section 44 of the Swiss Private International Law Act 1987, when marriage is to be celebrated in Switzerland, capacity to many is in principle governed by Swiss law." A marriage may be celebrated in Switzerland - so Sec- tion 43(1) tells us- if one of the spouses is a Swiss national or has his or her domicile in Switzerland. As a result, Swiss law is offered to ali those couples of proposed spouses of whorn one is either Swiss national or domiciled in Switzerland.³³ More specifically, Swiss law is directly offered to four categories of individuals (instead of one): Swiss nationals, foreign ers having their domicile in Switzerland, foreigners having their domicile abroad wishing to marry a Swiss national, foreigners having their domicile abroad wishing to marry a foreign er having his or her domicile in Switzerland. The situation is identical in the Netherlands. Pursuant to Article 2(a) ofPrivate International Law Marriages Act of 1989, a rnarriage may be celebrated in the Netherlands if each of the spouses fulfils the requirements set forth by Dutch substantive law and one of the spouses has Dutch nationality or

30 See Trib. of Rome, 3 September 2001 (note 1), at 116.

31 Ibidem, 116-117.

31 Art. 44( 1) provides that 'the substantive requirements for a marriage celebration in Switzerland are govemed by Swiss law'.

33 Art. 43(1) provides that 'the Swiss authorities have jurisdiction to celebrate a marriage if one of the prospective spouse is dorniciled in Switzerland or bas Swiss nationality'.

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habituai residence in the Netherlands.³⁴Here again, four categories of individuals may have direct access to Dutch rules on capacity to marry. Recent developments in Swedish law are most enlightening. Until recently, the nationality principle was basically followed in matters relating to capacity to marriage. New provisions were enacted in December 2003 making Swedish law relating to capacity to marry available to both spouses, including foreign ones, when the marriage is to be solemnised in Sweden, provided only that one of the spouses bas either Swedish nationality or habituai residence in Sweden.³⁵ It would seem that the situation is identical in Finland as of 2002 and most similar in the other Nordic countries.³" In England, according to the general rule, which adopts the ante-nuptial domicile of origin of each spouse as a connecting factor, access to English law may be claimed by English domiciliaries of origin only. This rule is subject to an important exception, which one may arguably best describe as a second, parallel rule: a non Eng- Jish domiciliary may benefit from English law if he or she wishes to marry an English domiciliary.³⁷Is a U.K. citizen domiciled abroad prevented from invoking English law to solemnise his or ber marriage? This does not seem to be the case to the extent that he or sbe is allowed to request solemnisation abroad before U.K.

consular authorities. Again, it would seem that, in these situations, English law also applies to his or ber spouse, who may weil be neither a British citizen nor an Eng- lish domiciliary.³⁸According to Article 3(3) of the French Civil Code, French citizens, event if resident abroad, may claim the benefit of French law in status matter, including capacity to marry.³⁹Does this mean that access to the French rules in

34 For an English translation of the Act see SUMNER 1.1 WARENDORF H., Family Law Legislation of the Nether!ands, Antwerp [etc.] 2003, at 220 f.

35 See JANTERA-JAREBORG M., Foreign Law in National Courts, Rec. cours 2003, t. 304, at 212.

36 See JANTERÂ-JAREBORG M., 'Combating child marriages and forced marriages - the prospects of the Hague Marriage Covnvention in the Scandinavian multicultural societies', in: Essays in memory of P. Nygh, The Hague 2004, 163 f., at 170-171.

37 Such a rule has been inferred from Sottomayor v. De Barras (No. 1) (1.877), 3 P.D.

1, 6-7 and received the approval of the Court of Appeal in Ogden v. Ogden [1908], p. 46, 74-77. See also Chetti v. Chetti, [1909) and Vervaelœ v. Smith (1981). See CLARKSON C.M.V., 'Marriage in England: Favouring the Lex fori', in: JO Legal Stud 80 (1990), at 83-85; DICEY A.V. 1 MORRIS P., Conflicl ofLaws, vol. II, 1 3'" ed., London 2000, at 685; CHESHIRE G. 1 NORTH P., Private international Law, 13'h ed., London 1999, at 732- 733; BRIGGS A., Conjlict oflaws, Oxford 2002, at 226-228.

38 See for the conditions stated by the Foreign Marriage Act 1892, MORRIS P. 1 MCLEAN I., The Conjlict of Laws, 5'h ed., London 2000, at 190-191. Marriage may be solemnised by U.K. authorities outside the U.K. 'between parties of whom at )east one is a United Kingdom national': s. 1(1) of the Foreign Marriage Act 1892.

39 See ANCEL B. 1 LEQUETTE Y., Grands arrêts de la jurisprudence française de droit international privé, 4th ed., Paris 2001, at 3 f.; MAYER P. 1 HEUZÉ V, Droit international privé,

ih

ed., Paris 2004, at 365; AUDTT B., Droit international privé, 3'h ed., Paris 2000, at 537; LOUSSOUARN Y. 1 BOUREL P. 1 DE VAREILLES SOMMIÈRES P., Droit international

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point should be denied to any non-French national? This is not so. The Instruction générale de l'état civil directs that the civil registrar shall celebrate the marriage even if the foreigner fails to produce a certificate stating that he or she has capacity to marry by his or her national law, provided that he or she complies with the requirements set forth by French law, no matter what the reasons, procedural or substantive, for the non-delivery by the foreign authority or the non-production of the certificate by the interested party.⁴⁰ As a result, a non-French national having capacity under French law can marry in France a French national (who has capacity under French law). To reach this result, there is no need to transit through the public policy exception or througb any judicial procedure. Although the Instruction says that the civil registrar should warn the parties that the marriage may not be recognized abroad and may possibly be held void in France, no case is ever cited where a marriage solemnised in France between two individuals, ofwhom one is a French national, both having capacity under French law, has actually been held void. The situation in Spain is Jess clear, due to the silence of the Civil Code. A number of authors take the view that Spanish law should apply if the marriage is celebrated in Spain, which may be the case if one of the spouses is a Spanish national or has his or ber habituai residence in Spain.⁴¹According to a recent study, it would seem that this is what takes place in practice.⁴²If this is so, again, four categories of individuals may take advantage of the Spanish provisions on substantive requirements.

Had ltaly adopted the same rules as any of the above countries (as weil as a wide range of others),'³the spouses could in both cases have bad their marriage

privé, gth ed. Paris 2004, at 360; HOLLEAUX D. / FOYER J. 1 GEOUI'I'RE DE LA PRADELLE G., Droit international privé, Paris 1987, at 516; VIGNAL TH., Droit international privé, Paris 2005, at 144.

40 See BATlFFOL H., 'L'instruction générale sur l'état civil du 21 septembre 1955 et le droit international privé', in: Trav. corn. fr., Année 1955-1957, 41 f., esp. at46 f.;

MARQUARDT, K.-H., Le certificat de capacité matrimoniale en droit comparé, Paris 1965, at 52 f., AUDIT (note 39), at 541, LOUSSOUARN Y. 1 BOUREL P. (note 39), at 362, note 4.

41 See for a discussion FERNÀNDEZ ROZAS 1. 1 SANCHEZ LORENZO S., Derecho internacional privado, 3'd ed., Madrid 2004, at 435; GONZÀLEZ CAMPOS J. (ET AL.), Derecho internacional privado, Parte especial, 6'h ed., Madrid 1995, at 296; CALVO CARAVACA A. 1 CARRASCOSA GONZÀLEZ J. (ed.), Derecho internacional privado, 6th ed., vol. Il, Granada 2005, at 73; ÜREJUDO PRŒTO DE Los Mozos P., La Celebraci6n y el Reconocimiento de la Validez del Matrimonio en Derecho Internacional Privado Espanol, Pamplona 2002, at 64 f.

42 ÜREJUDO PRŒTO DE LOS Mozos P. (note 41), at 64: 'las autoridades espaflolas ( ... ) at ienden la ley espafiola mas endémica que excepcionalmente ( ... )'.

43 This generous offer by a State of its law on capacity to marry seems to gain momentum in recent codifications. See e.g. Lithuania, where, according to Art. 1.25 of the Civil Code, Lithuanian law on capacity to marry is made available to ali prospective spouses of whom at !east one has either Lithuanian nationality or is domiciled in Lithuania: see MrKELENAS V., 'Reform of Private international law in Lithuania', in: this Volume, at 169.

Sirnilar is in essence the solution adopted by the Ukrainian legislator (Art. 55 and 57 of the Law on Private International Law of 2005): see DOVGERT A., 'Codification of Private International Law in Ukraine', in: this Volume, at 156.

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solemnized in Italy, and this with no delay. This would have flowed directly from the conflict rule itself, because this conflict rule would have directly incorporated in the circle of beneficiaries of Italian provisions both the foreign citizen having his or her domicile or residence in Italy (which was the case at !east for the Tunisian national) and the foreign citizen having his or her domicile or residence abroad wishing to marry an Italian citizen (which was certainly the case in both situations). No intervention of the judicial authority would have been necessary, for the civil officer would have had the power (and the duty) to make sure the requirements under ltalian law are fulfilled by the foreign spouse. In contrast, to reach this result the current Italian system compels the civil registrar to refuse the solemnisation, forces the interested party to challenge this refusai and leaves the judicial authority with no otber possibility than to resort to public policy to authorise the solemnisation. One may indeed wonder whether this is a satisfying situation with respect to both conflicts and constitutional methodology and values.⁴⁴

V. Distorted Use of Public Policy

A. Foreign Rule or Conflict Rule as Target of Public Policy?

When a foreign substantive rule is given effect in the forum, this is the result of the application of two different ru les: the conjlict rule of the forum, on the one side, and the substantive rule of the foreign State, on the other. As mentioned earlier, when the substantive foreign rule on capacity to marry does not apply due to public po licy, Italian courts invariably refer to a constitutional provision or principle (often more than one) to assist in specifying the meaning of the forum's fundamental policy which cannot be set aside.⁴⁵ln their view, a foreign rule shall be ineffective in Italy because its application is contrary to the Italian Constitution. One may talk of 'constitutional public po licy' .⁴⁶

Since, on the one band, the two elements of the chain - domestic conflict rule and foreign substantive rule- operate jointly and, so to say, generttte a single

44 Cp. CANTA A. (note 5), at 456-457, VENCHIARUTTI A. (note 16), at 448.

45 See note 16 above.

46 See particularly Trib. Genova, 4 April 1990, in: Giur mer. 1990, at 1195, and Tri b.

Verona, 6 March 1987, Stato civ. if. 1987, at 201. Interestingly, courts have sometimes found it sufficient to resort to constitutionally-based fundamental rights without really mentioning contlicts public policy: see recently Trib. Belluno, 18 May 2002, in: Riv. dir. int.

pr. proc. 2002, 1071 f., at 1072. Also LAGOMARSINO G. (note 16: 1990), at 1210, appears to consider superfluous the resort to public policy in these cases, which he described as a 'sovrastruttura concettuale'. The idea of a direct non application of foreign law because of a contrast with constitutional principles has been rather popular among Italian scholars:

BALLARINO T. (note 16), at 145 f. and PISlLLO MAZZESCHf R. (note 16), at 25 (see also ibidem, note 8 for other references).

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Multilateral Rule on Capacity to Marry and the ltalian Constitution

'product', and, on the otber, the last element of the chain is the foreign substantive

rule, it is rather natural to instinctively conclude that when this 'product' is perceived as a whole to be undesirable and contrary to constitutional public policy, it is the foreign rule, the last one to operate, which is undesirable and contrary to constitutional public policy. Logically, however, when the foreign substantive rule does not apply (allegedly) due to constitutional public policy, this may also be because the conflict rule itself is not in line with the Constitution.⁴⁷The truth is that the two elements of the chain are so inextricably linked that, if one of them yields, the whole chain collapses and any inquiry into which element is responsible ap- pean; to have little practical importance for the outcome is the same: forum substantive law applies and foreign substantive law does not.

For our purposes, however, it is key to attempt to 'pierce the veil' and dis- caver which element is actually the rebellious one in the chain: is it the foreign rule designated by the Italian conflict rule in that it sets forth a requirement that is un- known to ltalian law and is repugnant to sorne fundamental policy with respect to the right to marry, or rather is it the !ta lian conjlict rule itself in that it excludes a foreigner having his or her domicile in Italy or wishing to marry an ltalian citizen in Italy from access to the benefit of ltalian law? Whereas the traditional public policy clause is arguably an appropriate instrument in the frrst case, a brief over- view of the nature and the logic of public po licy suggests that this is not so in the second.⁴⁸

B. The Nature of the Public Policy Exception

Public policy is usually referred to as an exception:⁹The meaning of this phraseology is twofold. First, whenever public policy operates, the conflict rule does not apply in its logic and purpose: public policy is an obstacle to the ordinary operation of the conflict rule. 5° Secondly, the use of public policy should occur in exceptional circumstances only.⁵^'This means that whenever the forum law and the foreign law differ and generate different substantive results, resort to public policy should be a relatively rare occurrence.⁵²With respect to the Italian conflict rule on capacity to

47 See clearly BAJULE G. (note 1 6), at 8. For a waming against any confusion between the constitutional assessment of foreign substantive rules and that of a domestic conflict rule, see GIARDINA A. (note 16), at 17.

48 See BAJULE G. (note 16), passage quoted above, note 18.

49 See e.g. in the Italian scholarship MOSCONT F., 'Exception to the operation of Choice of Law Rules', Rec. cours 1989-V, 9-214.

50 See e.g. MOSCONI F. (note 38), e.g. at 158.

51 See with respect to capacity to marry, CARELLA G., Art. 27, in: Riforma del sislema italiano di diritto inlemazionale privato (BARlATTI S. ed.), in: Nuove leggi civili commentate 1996, at 1166, note 45. Cp. BoscmERO N., Art. 16, ibidem, 1046 f., esp.

at 1048, and BALLARINO T. (note 13), at 308.

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Gion Paolo Romano

marry, if in virtually al! cases the marriage is solemnized in ltaly because the foreigner bas capacity by ltalian law, despite the prohibition under foreign law, then the public policy deviee appears to be somewhat distorted in its nature, because, far from operating exceptionally, it does operate regularly, which is precisely at the opposite end of the spectrum. One may suspect, therefore, th at, in these cases, the problem lies not so mu ch with the foreign law but rather with the conjlict rule of theforum.n

C. Regular Use of Public Policy by the Courts

A close look at Italian case law shows that in those situations where no certificate is delivered by the foreign authority for whatever reasons, Italian courts tend to resort direct/y to ltalian law and, as a result, to authorise the marriage if ltalian law is complied with.⁵⁴ln other words, public policy, which is the only actual deviee

52 Logically, one may say that, when it cornes to rules setting forth the requirements to give rise to a particular legal relationship, out of ali cases in which the foreign law does not allow a particular individual to give rise to the proposed legal relationship in a situation where the forum law does allow him or her to do so, the cases in which the foreign law is disregarded, and in which, as a consequence, the creation of the proposed legal relationship is pennitted, should, at !east in principle, be a minority with respect to those in which the foreign law is not disregarded, and in which, as a consequence, the creation of the proposed legal relationship is not permitted.

53 The contradiction no longer occurs between the foreign law and the public policy of the forum, but between the contlict rule of the forum providing for an application of foreign law, which implies that the forum is willing to accept different substantive results, and the public policy of the forum providing that foreign law shall apply only insofar as it leads to no different substantive results than under the law of the forum.

54 Ail reported decisions (we have counted 17) triggered by the challenge of the refusai to solemnize on the basis of Art. 98 of the Civil Code since the enactment of the

!ta lian Constitution of 1948 (on! y the fust is of 194 7) have resulted with no exception in the court ordering the civil registrar to solemnise the marriage because the reqairements of Italian law were met: Trib. Milano, Il October 1947, in: Arch. rie. giur. 1948, 195 f.; Trib.

Torino, 22 April1959, in: Riv. dir. int. 1959,502 f.; Trib. Roma, 9 July 1968, in: Giur. mer.

1970, 464 f.; Trib. Roma, 2 January 1979, in: Giust. civ. 1979, l, 74 f.; Trib. Reggio Emilia, 29 September 1986, in: Dir. fam. pers. 1987, 268 f.; Tri b. Verona, 6 March 1987, in: Stato civ. if. 1987, 201 f.; Trib. Potenza, 30 November 1989, in: Dir.fam. pers. 1990, 558 f.; Trib.

Genova, 4 Apri11990, in: Giur mer. 1990, 1195 f.; Trib. Camerino, 12 April 1990, in: Riv.

dir. int. pr. proc. 1991, 800 f.; Trib. Torino, 24February 1992, in: Riv. dir. int. pr. proc.

1992, 985 f., Tri b. Torioo, 24 June 1993, in: Dir. fam. pers. 1993, 1181 f.; Tri b. Barcellona, 9 March 1995, in: Dir. fant. pers. 1996, 164 f.; Tri b. Napo1i, 29 April 1996, in: Fa m. e dir.

1996, 454 f.; Tri b. Pisa, 30/1 May 1996, in: Toscana giur. 1996, 1005 f.; Tri b. Taranto, 13 July 1996, in: Giur. mer. 1996, 284 f.; Trib. Treviso, 15 April 1997, in: Riv. dir. int. pr.

proc. 1997, 744 f.; Tri b. Belluno, 18 May 2002, in: Riv. dir. int. pr. proc. 2002, 1071 f., at 1072. These rulings have ali been rendered by Tribunals, i.e. by first instance courts.

According to Art. 98 of the Civil Code, the public prosecutor (pubblico ministero) may challenge the decision of the Tribunals before the Court of Appeal. No decision by Italian 220 Yearbook of Private International Law, Volume 7 (2005)