Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter P.3: Personal status

Anatol Dutta

I. p. 1346Notion and relevance

The personal status of a natural person describes that person’s position in the legal order. It is largely defined by family law and the law of persons. As personal status refers exclusively to natural persons, it has to be distinguished from the status of juridical persons, which in the conflict of laws is subject to the law governing that person, for example, the applicable company or foundation law. The personal status of a natural person encompasses not only legal personality and capacity (→Capacity and emancipation), but also the filiation of that person as a descendant of a certain father and mother, the marital status as a spouse or registered partner and, at least in continental systems, the person’s name (see, for example, the definition of personal status in § 1 of the German Personal Status Act (Personenstandsgesetz of 19 February 2007, BGBl. I 112, as amended). An element of personal status which traditionally was rather fact-oriented but which is increasingly expressed in law is a person’s gender: many jurisdictions have introduced a possibility for transgender persons to obtain gender recognition and hence a change of their legal sex (→Transsexual and transgender persons). In some countries for intersexual persons a new gender status (‘X gender’) has been introduced. Interlinked with, but not part of the personal status is a person’s nationality; nevertheless, in many jurisdictions private international law uses nationality as the main connecting factor for personal status matters (see IV. below). As personal status has important implications in family law but also in other areas of law, such as taxes, nationality, immigration or social security, the elements of personal status are in most jurisdictions registered by the state in civil status registers which publicly document the personal status of its citizens.

In cross-border cases, international cooperation in personal status matters is paramount. In particular, a harmonization of the conflict rules relevant for personal status is of great importance in order to create a harmony of decision in terms of a person’s status and avoid ‘limping’ status relations. If the legal personality, capacity (→Capacity and emancipation), marital status, filiation, name or gender of a person is differently defined by different states due to divergent conflict rules, the consequences for a person can be harsh. Many practical problems in cross-border cases can be solved by introducing common documentation standards, for example by creating standard forms for civil status documents. In the past, the Commission Internationale de l’Etat Civil (→CIEC/ICCS (International Commission on Civil Status)) was one of the main actors in the field of cross-border personal status matters; however, the efforts of the CIEC at least within Europe will in the near future be increasingly superseded by those of the European Union (see V. below).

II. From the statuta personalia to differentiated conflict rules

The concept of personal status concerns a range of legal issues and relationships. Nevertheless, since the beginning of private international law doctrine in many jurisdictions, the idea has persisted that personal status should be comprehensively governed by a single legal system. For example, the doctrine of statuta in the Northern Italian cities of the 13th century broadly distinguished between three kinds of legal regime: the statuta realia applicable to all →immovable property situated in the territory of the city, the statuta mixta applicable to legal transactions concluded in the territory of the city, and the statuta personalia applicable to the personal status of a citizen irrespective of where the citizen resided. Hence, the law comprehensively governing the personal status of a citizen remained stable. The doctrine of statuta in general has gradually been displaced by modern private international law theory. However, on the Continent, influenced by Friedrich Carl von Savigny (→Savigny, Friedrich Carl von) and his classic choice of law model, which focused on the ‘seat of the legal relationship’ rather than a private law provision and its geographic scope, the idea of a general regime governing personal status as a ‘statut personnel’ or ‘Personalstatut’ has survived. For example, the Spanish and Portuguese Código civil still determine the ‘ley personal’ or ‘lei pessoal’ as a law generally governing personal status (see art 9(1) of the Spanish Civil Code (Código Civil of 24 July 1889, Geceta de Madrid No 206, 25 July 1889): ‘La ley personal correspondiente a las personas físicas es la determinada por su nacionalidad. Dicha ley regirá la capacidad y el estado civil, los derechos y deberes de familia y la sucesión por causa de muerte’; art 25 of the Portuguese Civil Code 1966 (Código Civil approved by Decreto-Lei No 47.344, of 25 November 1966, [1966] p. 1347DG I série 274/1883, with subsequent amendments): ‘O estado dos indivíduos, a capacidade das pessoas, as relações de família e as sucessões por morte são regulados pela lei pessoal dos respectivos sujeitos . . .’). The French Civil Code (Code Civil of 21 March 1804) also still provides in its famous art 3(3): ‘Les lois concernant l’état et la capacité des personnes régissent les Français, même résidant en pays étranger’. The idea of a general personal status regime can also partly be traced in modern private international law codifications. The Austrian Federal Code on Private International Law (Bundesgesetz über das internationale Privatrecht of 15 June 1978, BGBl. No 304/1978, as amended, henceforth Austrian PILA) defines in its § 9 a general personal statute (‘Personalstatut’) to which the conflict rules for personality and capacity, names, →marriage and filiation refer (see §§ 12 et seq, § 16(2), § 17(1), §§ 21 et seq of the Austrian PILA). The same general notion of the personal status regime can also be found in some of the older treaties, such as in art 8(3) of the German-Persian Establishment Treaty of 1929. It appears that only in the common law such a general notion of a law governing the personal status never existed.

Nowadays, however, the general notion of a law governing the personal status of natural persons is dissipating, even in continental systems. Personal status on the choice of law level requires differentiated conflict rules rather than a ‘one-size-fits-all’ approach (see for details IV. below). It is accordingly no surprise that in most legal systems at least filiation (→Kinship and legitimation), →marriage, partnership (→Registered partnerships) and names (→Names of individuals) are subject to special choice-of-law rules, as for example the separate entries for these areas of law in this Encyclopedia show. Only legal personality and capacity of natural persons and partly the name of persons as a core area of personal status are on the Continent often still subject to a general personal status regime (see eg art 7 of Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche of 21 September 1994, BGBl. I 2494, as amended, henceforth EGBGB); arts 5 et seq of the Greek Civil Code (Astikos Kodikas of 23 February 1946, A.N. 2250/1040; FEK A 91/1940, 597); §§ 10 et seq of the Hungarian Private International Law (Law-decree No 13 of 1979 on Private International Law, henceforth Hungarian PILA); arts 20 et seq of the Italian Private International Law Act (Riforma del Sistema italiano di diritto internazionale private, Act No 218 of 31 May 1995 in Gazz.Uff., Supplemento Ordinario No 128 of 3 June l995, as amended, henceforth Italian PILA); arts 11 et seq of the Polish Private International Law Act (Official Journal 2011 No 80, pos 432)). However, even this core area is constantly eroding, in particular in terms of capacity. In common law jurisdictions, capacity was generally not regarded as forming part of a general law governing personal status. Rather capacity was traditionally conceived as a special issue subject to the choice-of-law rules for the field of law in which the issue of capacity arises, for example the law applicable to marriage, →succession or contract (see eg Lord Collins of Mapesbury and others (eds), Dicey, Morris & Collins on the Conflict of Laws (15th edn, Sweet & Maxwell 2012) rules 74, 151, 228). A similar tendency can now be observed in the private international law of the EU. Although capacity is excluded from the scope of most instruments, special occurrences of capacity are, at least partly, covered by the special conflict rules. For example, art 1(2)(b) of the Succession Regulation (Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, [2012] OJ L 201/107; →Rome IV Regulation) clarifies that the Regulation does not apply to legal personality and capacity. However, art 23(2)(c) and art 26(1)(a) and (2) of the Succession Regulation show that the capacity to inherit or to testate is indeed part of the European lex hereditatis. Special provisions for legal personality and capacity regarding →contractual obligations can also be found in art 13 of the Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), [2008] OJ L 177/6; →Rome Convention and Rome I Regulation (contractual obligations)).

III. The relevance of status decisions and documents

It should not be overlooked that regarding the personal status of a person the choice of law process is often ousted by decisions of courts or other authorities. Such status decisions cannot only establish a given status of p. 1348a natural person which already exists by the operation of law, but they might also change that status, in particular as far as filiation and marriage (divorce (→Divorce and personal separation)) are concerned. In such situations, the question of the applicable law does not arise. Rather – as domestic decisions are of course binding for domestic civil status registers – foreign status decisions might have to be recognized.

Within the EU only the rules on the recognition of divorce decisions are widely harmonized by the →Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, [2003] OJ L 338/1), which provides for a swift and simple procedure to recognize divorce decisions from other Member States. The recognition of those decisions is facilitated by forms which standardize the content of divorce decisions and allow authorities – usually civil status officers – to register a foreign divorce decree without an official translation. By contrast to some national laws, under the Brussels IIa Regulation no special recognition procedure is required, but rather divorce decisions are to be recognized ex lege.

Some legal systems even go a step further and additionally weaken the relevance of the conflict of laws in civil status matters. For example, in →France, the →Netherlands or →Switzerland, foreign civil status documents have the same effects as civil status decisions of the domestic courts, irrespective of the law applicable from a domestic perspective (see art 47 French Civil Code; art 10:24(1)1 Dutch New Civil Code (Nieuw Burgerlijk Wetboek of 1 January 1992, henceforth Dutch CC); art 32 of the Swiss Private International Law Act (Bundesgesetz über das Internationale Privatrecht of 18 December 1987, 1988 BBl I 5, as amended, henceforth Swiss PILA)). Once an individual’s personal status is documented abroad, little remains of the law governing that status – a legal technique which might also inspire the European legislature when enhancing the international cooperation in civil status matters within the EU (see V. below).

IV. The relevant connecting factors

What are the reasons for the gradual breakup of the comprehensive notion of a law governing the personal status of natural persons? The main reason for this development lies in the fact that the classic →connecting factor for status matters is no longer regarded as appropriate for all elements of personal status. Traditionally, systems with a comprehensive personal status regime followed – as proposed by the 19th-century Italian private international lawyer Pasquale Stanislao Mancini (→Mancini, Pasquale Stanislao) – the nationality principle by stressing the stability of a person’s connection with his or her home state. As under the doctrine of statuta (see II. above) the law governing personal status remained stable wherever the individual resided. Independent of the general discussion on the appropriate personal connecting factor in the conflict of laws (→nationality versus habitual residence (→Domicile, habitual residence and establishment)), in terms of status matters nationality has one advantage. Subjecting personal status matters to the law of the person’s nationality secures a harmony with the personal identification documents which are mainly issued and administrated by the state of nationality.

However, private international law lawmakers have increasingly noticed that nationality as a general →connecting factor is not appropriate for all status issues. First, there is a need for a connecting factor distinct from nationality for status relationships, for example marriage, if the nationalities of the persons party to that relationship diverge. Submitting the validity of such status relationships to the parties’ nationalities cumulatively might be possible (see eg for the substantive validity of a marriage § 17(1) Austrian PILA; art 13(1) EGBGB; § 37(1) Hungarian PILA; art 27 Italian PILA). However, such a solution is prone to invalidating status relationships and accordingly requires special public policy clauses (see § 17(2) Austrian PILA; art 13(2) EGBGB). Far more favourable for the validity of the status relationship or a status transaction is an approach which, at least in the case of diverging nationalities of the parties, submits the status issue to a common connecting factor, such as a past or present habitual residence (see eg for marriage art 44 Swiss PILA; for divorce art 8 →Rome III Regulation (Council Regulation (EU) No 1259/2010 of 20 December 2010 p. 1349implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, [2010] OJ L 343/10)) or the nationality or habitual residence of one of the spouses (see the solution in art 3(1) Hague Convention of 14 March 1978 on Celebration and Recognition of the Validity of Marriages, 1901 UNTS 131).

Second, in status matters nationality has been partly overturned as the modern personal connecting factor by other connecting factors, such as habitual residence. Also in the area of personal status legislators have recognized that not only the stability interests of the person to his or her home state should be protected but also the interest of integrating into the system where the person factually resides. This for example relates to filiation, where some systems now primarily point to habitual residence (see eg art 19 EGBGB; see also art 10:92 Dutch CC). In rare instances the residence principle is followed even regarding a person’s name (see eg art 37(1) Swiss PILA; the same applies in →Denmark by customary law). Swiss law even for the core area of the personal status – legal personality and capacity – mainly refers to the law of the residence (‘Wohnsitz’) of the relevant person (see arts 33 et seq Swiss PILA). In addition, for the validity of →registered partnerships or other new status relationships (eg →same-sex marriages), nationality would not be an appropriate connecting factor even if it were used for the validity of the traditional marriage. A number of legal systems continue not to provide for such new status relationships. Hence, referring to nationality would risk invalidating such partnerships where one of the partners’ law of nationality does not permit such a status relationship. It accordingly makes sense that – rather than applying a law generally governing the personal status of the person – most systems providing for registered partnerships refer to the law where the partnership is registered (see § 27a Austrian PILA; arts 10:60 et seq Dutch CC; art 17b EGBGB; see however, § 41/A Hungarian PILA). Departing from the nationality principle in status matters might even have a human rights dimension: the Federal Constitutional Court of Germany stressed that the practice under the original version of the German Transsexuals Act (Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen (Transsexuellengesetz of 10 September 1980, BGBl. I 1654, as amended) of referring transgender persons for gender recognition to their home states would violate the equality principle (→Transsexual and transgender persons), at least if the legislator refused to recognize the preferred gender of foreigners who legally, and not merely temporarily, reside in →Germany and whose law of nationality does not provide for the legal recognition of gender (Federal Constitutional Court of Germany (BVerfG) 18 July 2006, 116 BVerfGE 243).

A third reason for the erosion of the general personal status regime referring exclusively to nationality is the strengthening of party autonomy in private international law. Some systems have retained nationality as the primary connecting factor for status questions while nevertheless allowing the person a limited choice of law. Under German law, for example, the name of a person is still subject to the law of his or her nationality (see art 10(1) EGBGB). However, by breaking up the general personal statute, German law allows a person to submit his or her name to certain other laws which are connected to that person (see the options in art 10(2) and (3) EGBGB). Also Swiss law – following for status matters mainly the residence principle – allows a restricted freedom of choice regarding a person’s name in favour of nationality (art 37(2) of the Swiss PILA).

V. Personal status and EU citizenship

Personal status is also of particular importance for a European ‘area of freedom, security and justice’ – an area whose creation the EU promises its citizens since the Treaty of Amsterdam (Treaty of Amsterdam amending the Treaty on the European Union, the Treaties establishing the European Communities and certain related acts (consolidated version), [1997] OJ C 340/01). The relevance of the law governing the personal status has been shown by the case-law of the ECJ regarding names. In a number of decisions the ECJ concluded that the lack of a harmony of decision regarding the names of persons within the EU can violate the principle of non-discrimination and the freedom of movement and residence, today both enshrined in the TFEU (The Treaty on the Functioning of the European Union (consolidated version), [2012] OJ C 326/47) in arts 18 and 21. The ECJ ruled that a name which has been acquired in one Member State has to be recognized in the other Member States (see Case C-353/06 Stefan Grunkin and Dorothee Regina Paul [2008] ECR I-7639; see also ECJ, Case C-208/09 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien [2010] p. 1350ECR I-13693; cf also Case C-148/02 Carlos Garcia Avello v Belgian State [2003] ECR I-11613). The precise preconditions for, and the consequences of, this recognition duty based on primary EU law are still debated. It is, for example, unclear whether this principle also applies outside the law of names regarding the other elements of personal status. The European legislature should use its comprehensive competence in the area of private international law in order to create a harmony of decision in personal status matters and to avoid ‘limping’ status relations. If common choice-of-law principles are established within the EU, little is left for a recognition duty based on primary EU law. Nevertheless, it could be sensible to introduce, as a secondary measure alongside the harmonization of the conflict rules, such a duty to recognize foreign civil status documents, as has been done in the private international laws of some states (see III. above).

Harmonization of the law governing personal status matters within the EU has not yet been addressed; most EU private international law instruments expressly exclude personal status matters from their substantive scope (see eg art 1(2)(a) Succession Regulation). The European legislature has only begun to enhance cooperation between the Member State’s civil status officers. The European Commission has proposed a Regulation on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the EU (European Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the European Union and amending Regulation (EU) No 1024/2012 of 24 April 2013’ COM(2013) 228 final) which should allow the ‘acceptance’ of public documents without recognizing their content. Furthermore, the Commission suggests introducing multilingual standard forms concerning birth, death, marriage, registered partnership and legal status – the most important civil status documents.

Literature

  • Jean-Yves Carlier, Autonomie de la volonté et statut personnel (Bruylant 1992);

  • Lord Collins of Mapesbury and others (eds), Dicey, Morris & Collins on the Conflict of Laws (15th edn, Sweet & Maxwell 2012);

  • Richard Fentiman, ‘Activity in the Law of Status: Domicile, Marriage and the Law6 (1986) Oxford J.Leg.Stud. 353;

  • Myriam Hunter-Henin, Pour une redéfinition du statut personnel (Pu aix marseill 2004);

  • Alexander Makarov, ‘Personalstatut und persönlicher Status’ in Eduard Wahl, Rolf Serick and Hubert Niederländer (eds), Rechtsvergleichung und Rechtsvereinheitlichung – Festschrift zum fünfzigjährigen Bestehen des Instituts für ausländisches und internationales Privat- und Wirtschaftsrecht der Universität Heidelberg (Winter Universitätsverlag 1967) 115;

  • Heinz-Peter Mansel, Personalstatut, Staatsangehörigkeit und Effektivität (CH Beck 1996);

  • Eduard-Maurits Meijers, ‘L’historie des principes fondamentaux du droit international privé à partir du moyen âge, spécialement dans l’Europe occidentale’ (1934) 49 Rec. des Cours 543;

  • Cafari Panico, Lo stato civile ed il diritto internazionale privato (CEDAM 1992);

  • Walter Pintens, ‘Familienrecht und Personenstand – Perspektiven einer Europäisierung’ (2009) StAZ 97;

  • Walter Pintens, ‘Civil Status Registration’ in Jürgen Basedow and others (eds), The Max Planck Encyclopedia of European Private Law (OUP 2012) 198;

  • Christian Rochat, La dislocation du statut personnel (Imprimerie vaudoise 1986);

  • Giulia Rossolillo, Identità personale e diritto internazionale privato (CEDAM 2009);

  • Kurt Siehr, ‘Personal Law’ in Jürgen Basedow and others (eds), The Max Planck Encyclopedia of European Private Law (OUP 2012) 1269;

  • Guido Tedeschi, ‘Personal Status and Statut Personnel’ (1969) 15 McGill L.J. 452;

  • Benedetta Ubertazzi, La capacità delle persone fisiche nel diritto internazionale privato (CEDAM 2006);

  • Louis Isaac de Winter, ‘Nationality or Domicile: The Present State of Affairs’ (1969) 128 Rec. des Cours 347.