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Marriage

Precedence of civil marriage

Under Art. 21 of the Constitution, in effect since 1831: “The State has no right to intervene in the appointment or establishment of ministers of any religion, or to defend them from corresponding (...)

Under Art. 21 of the Constitution, in effect since 1831: “The State has no right to intervene in the appointment or establishment of ministers of any religion, or to defend them from corresponding with their superiors and making their actions public, except, in the latter case, as regards ordinary responsibility for the press and publication. Civil marriage must always precede the nuptial blessing, aside from exceptions to be established by law, where applicable”. The Criminal Code of 1868 reiterated this prohibition, in Article 267, amended in 1908 to include a single exception: “A fine of fifty francs to five hundred francs will be imposed on any minister of a religion who gives a nuptial blessing before the celebration of civil marriage. This provision shall not apply when one of the persons who received the nuptial blessing was in danger of death, and any delay in this ceremony would have had the effect of making it impossible. In the event of a further offence of the same kind, he may also be sentenced to eight days to three months’ imprisonment”.

D 3 November 2015    AStéphanie Wattier

The marriage and minority groups

According to the Belgian Criminal Code, it is illegal to grant a nuptial blessing before the celebration of the civil marriage (see article “Precedence of civil marriage”). The offence in no way (...)

According to the Belgian Criminal Code, it is illegal to grant a nuptial blessing before the celebration of the civil marriage (see article “Precedence of civil marriage”). The offence in no way excludes groups that are found in the minority or even socially challenged groups, nor does it hinder specific matrimonial ritual practices, whether strictly or non-strictly tied to the forms of “blessing” offered in the major religious traditions. Moreover, case law has shown, from the outset, a tendency to interpret the notion of “blessing” in a broad manner (despite the criminal nature of the text): thus, to assimilate the concept of “blessing” with the mere inclusion in a religious register (see in particular Cass. 26 December 1876, Pas. 1877, I, 46, and in this sense the response of the Minister of Justice to the Senate, on 13 October 2005, to a request from Joris Van Hauthem for explanations on “the concept of religious marriage”, no. 3-998, Annales, Sénat, 3-127). However, it is indeed the notion of a “minister of worship” that defines the perpetrator of the offence. Would this be the case for Scientology Ministers, by way of analogy with the recent positions of the United Kingdom Supreme Court? There appear to be indications of a broad interpretation in Belgium too on this point. For instance, since 1993, certain Belgian public prosecutors have considered this provision applicable to secular marriage rites, so long as these do not take place significantly after the civil ceremony. The underlying reasoning is to assimilate, following their being equally included in the Constitution, non-denominational philosophical organisations and confessions. Public recognition, not required by Art. 267, was in this case the assimilating factor for the figures of secular delegates and religious ministers, without raising the question of the relationship with divinity. When asked in the Chamber about the advisability of such proceedings, the Minister of Justice replied on 13 November 2003 that the mere presence of a lay delegate during the civil ceremony did not in her view imply a breach of Article 267 (Summary Report, House of Representatives, Justice Commission, CRABV 51 COM 056 p. 17). Would the same thus be true of the mere presence of a minister of a denomination, including a scientologist, in the municipal wedding hall? In the absence of legal recognition, the notion of worship is defined as a reasonable reference to popular usage and common sense, which thus contributes to shaping a local understanding of the different movements. How can we interconnect them with considerations born in other places, though? While the case law of other European States do not have a direct influence on the Belgian qualification of scientologist marriage, they most definitely contribute to influencing a factual appraisal of transnational movements. Failing to establish that Belgian Scientology practices would be of a radically different nature or perception, assimilation to a religion and a religious marriage, carried out in a foreign State, without having extraterritorial legal effects, could strengthen certain factual probative assessments in Belgium...

D 3 November 2015    AStéphanie Wattier

CNRS Unistra Dres Gsrl

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