Case XII ZB 309/21: Formal Validity of Proxy Marriage Recognised by the German Federal Court

This blog post was contributed by Dr Manos Maganaris, Module Convenor for Conflict of laws.

With its decision in case XII ZB 309/21, the German Federal Court reconfirmed the position of the German judiciary, which supports the validity of proxy marriages concluded abroad, provided that the formal requirements of the applicable foreign law were met.

The issue was a proxy marriage concluded in Mexico between a German woman and a man of Syrian citizenship. Following the conclusion of the marriage, an application was lodged by the spouses in Germany for a marriage name declaration. This was denied, as according to the relevant German authority, the marriage, because of its proxy status, was not formally valid.

When called upon to decide on the issue, the German Federal Court stated that the formal aspects of the marriage in question were ruled by Art. 11(1) of the Introductory Act to the Civil Code. The later provides that a legal transaction is formally valid if it complies, inter alia, with the legal formalities of the state where the transaction takes place (lex loci).

Accordingly, in the case in question, the proxy was merely a question of the formal validity of the marriage and that it (the proxy) only served as a matter of representation in making the declarations of intention.

The judges pointed out that there may be circumstances, where proxies may also affect the substantive aspects of a marriage (essential validity), as would the case be, for example, if the future spouses had not decided about the marriage themselves but had instead transferred the relevant decision to their respective agent.

Since proxy marriages are allowed by Mexican law, the German Federal Court concluded that the marriage in question, in the absence of other issues of concern, was formally valid. The court further added that this result did not contravene either German public policy, or potentially any fundamental principles of the German legal system.

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