“Love without the law”: a love that is permitted, but whose offspring are subjected to a lesser legal status under Lebanese law, affecting both the children and their loved ones.[1] In Lebanon, those without the means to travel abroad are subject to the only formula available in Lebanese territory: sectarian affiliation.

On March 31, 2016, a summary affairs judge in Beirut, Jad Maalouf, issued a ruling on a petition brought against the Lebanese state by two spouses who had a civil marriage on Lebanese territory before a public notary. They requested that the state be compelled to hand over documentation of their personal status, including their marriage certificate and a copy of the record, or be faced with a fine. The spouses presented their petition after the General Directorate of Personal Status refused to register their marriage, which had been contracted before a notary in Lebanon.[2]

This ruling was issued specifically in response to the demands of the petitioning party. However, by way of his analysis, the summary affairs judge addressed numerous perspectives regarding sectarian communities, the nature of marriage, and how these are governed by public freedoms and political rights.

Sectarian Affiliation: Subjecting a Public Official Affiliation to Individual Will

The ruling referenced freedom of religion as enshrined in Article 9 of the Lebanese Constitution, Article 16 of the Universal Declaration of Human Rights, and Article 18 of the International Covenant on Civil and Political Rights. It also held that freedom of religion is not limited to “the freedom to change religion or denomination”, but also included “the freedom not to embrace any religion or denomination, as well as the freedom to keep one’s decision not to embrace a religion or sect from being public”.

The right to leave a sect has been recognized, and derives from the regulations of Article 11 of Resolution no. 60 LR. These stipulate that it is permittable for anyone “who has reached the age of majority and who possesses their mental faculties to leave, or to embrace a sect recognized within the personal status system”. On the other hand, however, the freedom to refrain from making public one’s decision not to adhere to a religion or sect presents various problems. These stem from the fact that sect is recognized as the fundamental factor in the basis for identification that governs court disputes and personal status laws. This is stated clearly in the provisions of Article 10 of Resolution no. 60 LR, which subjects Lebanese [citizens] to either a sectarian or a civil personal status system, according to whether or not an individual belongs to a recognized sect.[3]

The ruling addresses this problem by establishing a connection between the impact of a sectarian affiliation, on the one hand, and publicizing its entry in the public record, on the other. This transforms the register from a means of proof into a record that establishes sectarian affiliation. Thus, a sectarian affiliation does not produce its effects, and trigger the resulting legal consequences, and the personal status system does not have jurisdiction, except in cases where affiliation is made a matter of public record.

Making it public subjects [the nature of the provisions] to the will of the individual, which is then established as a publicly registered civil affiliation based on the individual’s preference. “The sectarian affiliation that produces legal effects vis-a-vis the [government] administration is the one made known by the individual in the official record. In the absence of a record in these registers, whether because of an individual’s lack of belief in any of the recognized religions or denominations, or because they do not wish to make their belief public before the administration, and wish it to remain a private matter, the administration may not assume an individual’s affiliation. For those whose sectarian affiliation is not mentioned in the public records, they may only be recognized as belonging to the category of individuals who do not belong to any sect. Nor could the administration take a position contrary to the stipulations referenced above, restricted to freedom of religious belief”.[4] In this context, the will of the individual is not restricted to specifying their affiliation, or lack thereof, with a particular religion or sect. Rather, it goes further, restricting the state’s authority to rely upon sectarian affiliations to only those who have made their affiliation public.

Of course, this analysis represents a notable development compared to measures adopted in consultation with the Committee of Legislation and Consultation, based on a circular issued by Minister of the Interior Ziyad Baroud on February 6, 2009. Addressing the cancellation of one’s sectarian record, these measures referenced situations in which “rights are linked to sectarian affiliation, and thus exercising them requires sectarian affiliation, and at any time, the individual in question might be required to show proof of their sectarian affiliation.”[5]

Beginning with this analysis, the ruling aims to mandate a separation between exercising rights and sectarian affiliation (or lack thereof). The first of the rights specified in the ruling is the right to marry and found a family.

The Right to Marry and to Found a Family, Fulfilling the Right to Equality, and Non-Discrimination on the Basis of Religious Belief

“Every person has the freedom to adopt a particular religion, or not, and to publicize their sectarian affiliation or to refrain from doing so, and every person has the right to marry and to found a family.”

This is stated in the ruling, which classifies the right to marry and to found a family amongst an individual’s fundamental human rights. This is inferred from the contents of Article 16 of the Universal Declaration of Human Rights, which deems it a component of individual freedom. From this premise, [the ruling] declares that “the right to marry does not require recognition under the law, as it is permitted through the exercise of fundamental rights”.

Building on this premise, the ruling enshrines the right to marry for individuals not belonging to a recognized sect, as well as those who refrain from making their sectarian affiliation public. This stems from the right to marry, which fulfills the freedom of religious belief as well as the principle of equality. The result is to subject the marriage of such persons to civil law, in accordance with the provisions of Resolution no. 60 LR.

In other words, those who do not wish for their relationship with the state to be subject to/governed by their sectarian group have the right to contract a civil marriage. This is compatible with a jurisprudential reading of Article 9 of the Constitution, whereby the majority of religious scholars view the establishment of optional civil marriage to be a necessity falling to the Lebanese state, along with the freedom of religious belief and the freedom to marry.[7]

This is how the judicial ruling arrives at its analysis of the scope of the right to marry. “The legislature is permitted to exercise its authority by issuing legislation regulating marriage, and adhering to the necessities of public interest, provided that it does not lead to infringement upon the right to marry. The same may be said of the legislature’s exercise of its authority by choosing not to legislate certain exigencies. This is within its rights, on the condition that it does not infringe upon the right to marry.” That is, the Lebanese legislature’s refusal to establish civil marriage could violate the right to marry belonging to a person who does not belong to a sect, or who does not make their sectarian affiliation public.

However, according to Maalouf, this justification is insufficient in and of itself to consider a marriage concluded as a contract made before a notary to be a [legally] sound marriage that must be registered by the [government] administration. He calls for a discussion of the possibility of subjecting marriage to a foreign law in order to broach the legislative vacuum.

The Nature of Marriage and the Freedom to Choose Which Law Applies

To begin, it should be noted that the ruling adopts a contract-based approach to marriage, to the extent of “the possibility of subjecting the contract to a foreign law”. This contradicts the opinion adopted by the Committee of Legislation and Consultation, but is in accordance with that of the Higher Committee for Consultations at the Ministry of Justice.[7][8]

Subsequently, the ruling calls for the contracting spouses in this situation to submit their marriage contract to a foreign law, despite the fact that the contract is a domestic and not an international one. Limiting the contracting parties’ freedom to choose which law governs their contractual relationship to international rather than domestic contracts is only justified if it “does not enable the parties to evade the binding provisions of national laws, but creates an artificial link allowing them to implement the national law”.

However, in this case, the absence of a national law to oversee and regulate civil marriage in Lebanon replaces this justification with the will of the two parties. This is specailly the case given that the choice of the foreign law represents a “positive aim” and “avoids the existence of a contract made outside of the law”. An affirmation of the force of the will when it comes to specifying the form and effects of marriage can be found enshrined in Lebanese judicial interpretation (ijtihad) of Article 25 of Resolution no. 60 LR. This interprets the soundness of a marriage contracted outside of Lebanese territory, according to a form specified by the foreign country, and how such a marriage might be subject to a foreign civil law, even absent any tie between the civil foreign law and the spouses contracting the marriage.

The ruling indicates that adopting the principle of the freedom to choose a foreign law does not foreclose the possibility of limiting its effects; it affirms, for example, that should the issue be raised at a later point, its applicability would depend upon the extent to which the foreign law conforms with the public [Lebanese] system.

It should be clarified here that Lebanese law is not in a legislative vacuum when it comes to recognizing a purely contractual view of marriage; the Law of Obligations and Contracts oversees contracts. However, here lies the most fundamental question that the judicial ruling does not touch upon: that is, can a contract comprising non-financial obligations –for example, cohabitation and a shared life– be soundly concluded merely by an exchange of both parties to their satisfaction? And in a situation in which the two parties have not elected to specify a foreign law to govern their contract, can a marriage contract concluded before a notary be considered sound? And is it possible for two spouses to agree to annul their marriage in the manner they choose, without any necessary recourse to a court of any kind?

While conceding that a contractual view of marriage does resonate in Lebanon, namely in its adoption and enshrinement in Islamic sects, this is not the case with Christian sects, whose laws describe marriage in institutional terms. Thus adopting the notion of individual will as the first criterion on family matters, and all other matters in connection with the individual and their status, raises problems – the heart of which is how to protect the individual, given that individual will usually defines relations of power in society.

All of these questions aside, the ruling takes the view that two spouses may contract a civil marriage before a notary in Lebanon and select which foreign law to put into place. However, despite all of the above, the petition brought against the Lebanese state was dismissed in the end, with the view that there had not been a clear violation [in this case].

The Right to Marry and Found a Family: a Fundamental Right that Hinges on Judicial Interpretation

Despite his enshrinement of the right to marry and found a family as a fundamental right, as well as the freedom of religious belief and the principle of equality, the summary affairs judge dismissed the petition. He justified the dismissal saying that his jurisdiction was limited to situations in which there was a clear violation,[] He stated that as legislation on civil marriage does not exist in Lebanon, it falls to the judiciary to fill the legislative gap based upon evidence presented in the content of the ruling. In particular, he noted “the consideration that a marriage contract may be subjected to a foreign law, based on the will of the contracting parties”, as a matter not presently available given the lack of decisions on this issue within judicial interpretation/ijtihad (on the part of the qadat al-asas).

Nevertheless, we must point out a possible contradiction in the ruling. If the right to marry and to found a family is a fundamental right, such that it “does not require recognition under the law, as it is permitted through the exercise of fundamental rights” (an expression quoted in the ruling), and if it is the duty of the state to legislate it – then how is it not a flagrant, illegitimate violation for the administration to refuse to register marriages that have been contracted in a civil manner?

Of course, this ruling paves the way for enshrining the right to a civil marriage in Lebanon, at least in terms of the judiciary, given that it refutes in turn all of the objections set forth to cast doubt on the soundness of such a marriage. On the other hand, however, the ruling is characterized by a degree of caution that might be attributed to the social sensitivity warranted by the issue of civil marriage contracts in Lebanon. It is as if the judge wished to document his opinion in a legal ruling, but without imposing its application, calling instead for the parties to petition the [qadat al-asas] and at the same time, for the [qadat al-asas] to render their own ruling.

Perhaps this caution expresses the sentiment that true progress on an issue such as this cannot be accomplished by a single ruling, no matter how pioneering, but must instead be realized through judicial coordination; and, that incremental progress in this arena might be more beneficial than something appearing suddenly out of thin air.

It remains for us to speculate about the status of marriages of those who continue to wait for their marriages to be registered. Will they continue their struggle to attain their goal? and if so, will they resort to the judge overseeing personal status law to enact the road map set out by the summary affairs ruling? This remains to be seen over the months to come.

This article is an edited translation from Arabic.

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[1] Jean Carbonnier, “L’amour sans la loi: Réflexions de psychologie sociale sur le droit de la filiation, en margede l’histoire du protestantisme français”, Bulletin de la Société de l’Histoire du Protestantisme Français (1903-), Vol. 125 (Janvier-Février-Mars 1979), pp. 47-75.

[2] See: Ilham Barjas’s, “Unrecognized Marriages Resort to the Judiciary..and Even to Cyprus: Holding onto Citizenship Complicated by Misgivings over Births,” The Legal Agenda, Issue No. 35, January 2016.

[3] “Syrians and Lebanese belonging to recognized sects are subject to the system of their sect in matters connected to personal status and to the provisions of civil law in matters not subject to this system. Syrians and Lebanese belonging to a sect are subject to regular rights, and likewise Syrians and Lebanese who do not belong to a sect are subject to civil law in matters of personal status.”

[4] The personal status of Professor Pierre Gannage, in the fourth year of its old and new program, St. Joseph University, p.17

[5] Recommendation of the Committee of Legislation and Consultation No. 276/2007, July 5, 2007.

[6] Pierre Gannagé, “Le principe d’égalité et le pluralisme des statuts personnels dans les Etats multicommunautaires”, Mélanges Terré, éd. PUF, 1999, p. 431, Léna Gannagé, Religion et droits fondamentaux dans le droit libanais de la famille, in Droit et religion, colloque du Cedroma, Beyrouth mai 2000, texte intégral disponible sur http://www.cedroma.usj.edu.lb/files/droitreligion.htm, Marie-Claude Najm, “Principes directeurs du droit international privéet conflits de civilisations – Relations entre systèmes laïques et systèmes religieux”, éd. Dalloz, p. 600; also see: “The Marriage Contract and the Complex of the State”, The Legal Agenda, Issue No. 8, April 2, 2013.

[7] Opinion of the Committee of Legislation and Consultation, Number 1100/2012, December 8, 2012.

[8] Opinion of the Higher Committee for Consultations, February 2013.