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Abstract

This article provides a detailed analysis of the legal framework surrounding civil marriages and divorces involving Lebanese nationals, both within Lebanon and abroad. It explores Lebanese law, international law, jurisdictional conflicts, and case studies to offer a comprehensive understanding of the subject.

Introduction

The Lebanese state does not conduct civil marriages within its borders. Instead, most Lebanese citizens who wish to marry in a civil ceremony must do so abroad, in countries that recognize civil marriages.

This requirement to travel abroad for a civil marriage adds another layer of complexity, as it involves understanding and complying with the legal requirements of the foreign jurisdiction where the marriage will take place.

Divorce, on the other hand, is equally complex due to the interplay between civil and religious laws. While civil marriages conducted abroad can be divorced in civil courts abroad, divorces within Lebanon are typically handled by religious courts.

This dual system can lead to jurisdictional conflicts, as religious courts may not recognize civil divorce decrees from other countries, or may impose their own conditions and procedures. Understanding these intricacies is essential for Lebanese nationals who seek to protect their rights and navigate the legal challenges of marriage and divorce.

Under Article 16 of the Law dated April 2, 1951, marriages conducted in Lebanon by a Lebanese belonging to one of the Christian sects before any civil authority are considered null and void.

However, Article 25 of Decree 60 L.R. recognizes civil marriages contracted outside Lebanon between Lebanese couples or between Lebanese nationals and foreigners.

Based on the above whenever Lebanese courts oversee the divorce of a couple married abroad under a civil marriage, they must apply the foreign law under which the marriage was celebrated.

We discuss civil marriage conducted abroad and jurisdiction of Lebanese courts overseeing the divorce proceedings.

Effects of non-registration of the civil marriage in Lebanon

Under Article 22 of the Law of 7 December 1951 on the Transcription of Personal Status Certificates, the spouses must transcribe the marriage certificate concluded in Lebanon or abroad within 30 days.

However, the marriage certificate not transcribed in Lebanon through the Lebanese Consulate abroad is considered to exist notwithstanding its non-transcription; The transcription of the act is an administrative formality that does not affect the validity of the marriage nor its existence.

Jurisdiction of Lebanese courts

Jurisdiction of Lebanese courts is derived from article 79 of the civil procedures code:

“Lebanese civil courts shall have jurisdiction to hear disputes arising from a marriage contract celebrated in a foreign country between Lebanese nationals or between a Lebanese national and a foreign national, in the civil form prescribed by the law of that country. The provisions of the laws relating to the jurisdiction of Sharia and Druze courts shall be observed if both spouses are of the Mohammedan sects and at least one of them is a Lebanese national.”

Exception to the jurisdiction: whenever both spouses are of the Muslim faith and one of them is Lebanese, civil courts have no jurisdiction to oversee any case related to a marriage conducted abroad even if it is under foreign law. The jurisdiction Is exclusive for confessional courts in this case.

This being is that religious marriages conducted in Lebanon, and all family matters, are subject to the jurisdiction of religious courts according to the religious faith of the couple.

Religious courts’ jurisdiction is considered of public order and the same courts do not recognize civil marriages.

Given all the above, article 79 is of crucial importance under Lebanese local law and under international law, giving civil courts jurisdiction to oversee disputes related to civil marriages conducted abroad between Lebanese nationals or between a Lebanese national and a foreign national, in the civil form prescribed by the law of that country.

Conditions for Application of Article 79

Article 79 establishes jurisdiction of Lebanese civil courts over disputes arising from marriages solemnized abroad. The conditions can be categorized in two main areas:

1. General Conditions for Lebanese Civil Court Jurisdiction:

• Marriage Contract Celebrated in a Foreign Country: The marriage must have been conducted outside of Lebanon.
• At Least One Spouse is a Lebanese National: One or both spouses must hold Lebanese citizenship.
• Marriage Celebrated in Civil Form: The marriage must have been performed in the civil form prescribed by the law of the foreign country where it was solemnized.
• Dispute Arises from the Marriage Contract: The dispute brought before the Lebanese court must stem directly from the marriage contract itself (e.g., divorce, alimony, child custody, property division).

If the above cumulative conditions are met, Lebanese civil courts have jurisdiction.

2. Exceptions (Jurisdiction of Sharia and Druze Courts)

• Both Spouses are of the Mohammedan Sects: Both spouses must be Muslim.
• At Least One Spouse is a Lebanese National: One or both spouses must be Lebanese citizens.

If the above cumulative conditions in the second category are met, Sharia or Druze courts (depending on the spouses’ religious affiliation) have jurisdiction, overriding the civil courts.

In summary, Article 79 grants Lebanese civil courts jurisdiction over civil marriage disputes, provided at least one party is Lebanese. However, this jurisdiction is superseded by religious courts when both spouses are Lebanese Muslims.

Nuances

Distinction 1: If a Lebanese citizen who is Druze gets married in a foreign country under that country’s civil marriage laws, and a legal dispute arises, the Lebanese civil courts, not Druze religious courts, will oversee the case.

This is because Druze religious law only recognizes marriages performed by Druze religious authorities. Even if the foreign country’s civil law allows the marriage, the Druze religious courts in Lebanon will not see it as valid. Therefore, the Lebanese civil courts must take jurisdiction.

Distinction 2: If a religious marriage is conducted in Lebanon before a spiritual authority by a foreign national whose marriage is subject to civil law in their country, the civil court in Lebanon shall have jurisdiction to hear disputes arising from this marriage (Civil Court of Cassation -, Decision No. 37, Dated 10/07/1969),  this is in application of article 1 of decision number 109 dated 14 may 1935 (“Civil courts alone have jurisdiction to hear personal status lawsuits involving one or more foreign nationals, provided that at least one of them is a national of a country where personal status matters are governed by civil law in accordance with its applicable laws.”)

Case Studies and Jurisdictional Conflicts

Case study 1: British couple marrying in Lebanon before a religious authority.

As a practical Case application of article 1 of decision number 109 dated 14 May 1935, we provide a Summary of Court of Cassation Judgment 8/1956:

In this case, a British couple marrying in Lebanon before a religious authority were deemed subject to Lebanese civil court jurisdiction, as British personal status is primarily governed by civil law.

1.Jurisdictional Conflicts:

The Court of Cassation holds the authority to determine jurisdiction when disputes arise between civil and religious courts regarding personal status matters.

2.Foreign Nationals and Religious Marriages:

When foreign nationals, subject to civil personal status laws in their home country, enter a religious marriage in Lebanon, Lebanese civil courts have exclusive jurisdiction over subsequent personal status disputes.

3.Application of Civil Law:

The decisive factor is whether the foreign nationals’ personal status is governed by civil law in their country of origin, not the form of the marriage ceremony conducted in Lebanon.

4.Jurisdictional Objections:

A party’s prior participation in religious court proceedings does not preclude them from later challenging that court’s jurisdiction in civil court proceedings.

5.Civil Court Exclusivity:

Lebanese civil courts have sole jurisdiction over personal status disputes involving foreign nationals whose personal status is governed by civil law in their home country.

Case study 2: couples getting married concurrently via a civil and religious marriage.

Jurisdiction based on the first contract.

Article 14 of law dated 2 April 1951 stipulates that “The religious authority competent to rule on a marriage contract and its consequences is the authority before which the marriage was contracted in accordance with the established procedures and pursuant to the rules of jurisdiction specified in Article 15 regarding mixed marriages. In the event of two or more valid contracts, the competent authority is the one before which the first contract was concluded. If there are two or more contracts, and only one of them conforms to the procedures outlined herein, then the competent authority is the one that conducted the valid contract.”

Case study 3: civil marriage conducted abroad followed by a religious marriage celebrated in Lebanon.

In its judgment 13/1991 the Court of Cassation held that:

1.Priority of Religious Marriage in Lebanon:

The court affirmed that the Lebanese family law public order is based on religious marriage, and civil marriage is an exception to this rule.

2.Civil Marriage Celebrated Abroad:

Civil marriages conducted abroad, under specific conditions, are recognized in Lebanon, in application of the constitutional guarantee of freedom of belief.

3.Subsequent Religious Marriage:

If Lebanese Christian spouses contract a civil marriage abroad and subsequently enter a religious marriage in Lebanon, the later religious marriage takes precedence in Lebanon.

The religious marriage is considered an expression of the spouses’ faith and submission to its laws, making it the sole marriage to be recognized in Lebanon.

4.Survival of Civil Marriage:

Despite the priority of religious marriage, civil marriage remains valid and is not annulled, in accordance with the principle of the unity of marriage.

5.Jurisdiction of Religious Courts:

Any claim that the subsequent religious marriage was conducted solely for social reasons falls outside the jurisdiction of civil courts and is within the purview of religious courts.

Case study 4: civil marriage under Virginia State Law

in a fairly recent decision, the Court of First Instance in Matn (Judgment No. (59) dated 27/2/2018) held that:

1.Divorce:

When spousal life becomes untenable, divorce is granted.

If the marriage was contracted civilly outside Lebanon, the property division is governed by the law of the country where the marriage took place.

2.Application of Virginia State Law:

As the marriage was civilly performed in Virginia, Virginia state law was applied to the divorce proceedings and property division.

Divorce was granted based on joint responsibility, due to the irreparable breakdown of the marital relationship.

3.Child Custody:

Custody of the minor child was awarded to the mother, with visitation rights granted to the father.

This decision was based on the child’s best interests.

4.Property Division:

Virginia state law was applied to the division of marital property.

Property registered solely in one spouse’s name was considered separate property.

Joint marital property, such as the marital home and joint bank accounts, was divided between the spouses.

5.Applicable Law: It was emphasized that the applicable law for the financial effects of a civil marriage contracted abroad is the law of the state where the marriage was performed.

Case Study 5: Locus Regit Actum, Jurisdiction in Mixed Civil Marriage Concluded Abroad

1.Background:

This court of cassation judgment number 36 dated 19\12\1964 examines the case of a Lebanese couple from different religions (Sunni and Maronite Christian) who contracted a civil marriage in Paris, France. A dispute arose regarding jurisdiction and the competent court to hear the effects of this marriage in Lebanon, where the personal status legal system varies according to religious sects.

2.Legal Analysis:

The court relied on Article 25 of Decree 46 L.R. dated November 18, 1938, which provides for the recognition of marriages contracted abroad if they are performed in accordance with the forms of the foreign country, provided this does not conflict with the husband’s personal status system.

The principle of “Locus regit actum” was applied regarding the legal form of the marriage, while French law was applied in terms of substance, given the Sunni Sharia system’s non-recognition of civil marriage.

The vested right of the wife, by virtue of contracting her marriage under French law, was affirmed.

It was emphasized that both parties consented to be subject to French civil law when contracting the marriage.

It was considered that the marriage is subjected in substance to the French civil law.

The civil court, rather than the Sharia court, was determined to be the competent court to hear the effects of this marriage.

3.Outcome:

The court ruled that the civil marriage contracted in France between the Lebanese couple is subject to French civil law in terms of substance, and that the Lebanese civil court is competent to hear its effects. The application of the husband’s Sharia personal status law was rejected, and the civil marriage was recognized based on French law and Article 25 of Decree 46 L.R.

4.Significance:

This judgment highlights the legal challenges related to mixed civil marriage in Lebanon, where sectarian legal systems conflict with civil marriage. This case illustrates the importance of Article 25 of Decree 46 L.R. in resolving such disputes and underscores the need to recognize the vested rights of individuals who choose civil marriage abroad. It also emphasizes the importance of the civil court as the competent Lebanese court in these cases.

Conclusion

The legal framework surrounding civil marriages and divorces involving Lebanese nationals is complex and multifaceted, reflecting the interplay between civil and religious laws. Lebanese law does not explicitly allow civil marriages within Lebanon, but it recognizes civil marriages conducted abroad under certain conditions.

Article 79 of the civil procedures code is crucial in establishing the jurisdiction of Lebanese civil courts over disputes arising from civil marriages conducted abroad, provided at least one party is Lebanese. However, this jurisdiction is superseded by religious courts when both spouses are Lebanese Muslims.

In summary, while Lebanese civil courts have jurisdiction over civil marriage disputes involving Lebanese nationals, religious courts maintain exclusive jurisdiction over religious marriages and related family matters.

This dual system underscores the need for clear legal guidelines and the recognition of civil marriages to ensure fair and consistent application of the law.

Hopefully we were able to provide some insights into the legal challenges and jurisdictional conflicts that arise in civil marriage cases, offering a comprehensive understanding of the subject.

For any inquiries on family law, please contact us on mk@klfi.net