Can you seek to annul a marriage when one of the parties is dead?: Mikołajczyk v Czarnecka

The answer, in a rather strange case before the CJEU, seems to be a qualified “Yes”.

Under Polish law, the annulment of a marriage on the ground that one of the spouses is still married to another person may be requested by any person who has a legal interest in the matter; and the Court of Appeal in Warsaw sought an Opinion from the CJEU on whether or not EU law applied to an action for annulment of marriage brought by a third party following the death of one of the spouses.

In 2012, Edyta Mikołajczyk brought an action before a Polish court seeking annulment of the marriage in 1956, in Paris, of Stefan Czarnecki (who died on 3 March 1971) to Marie Louise Czarnecka. She stated that she was the heir to the estate of Zdzisława Czarnecka, Stefan Czarnecki’s first wife, who had died on 15 June 1999. She further claimed that the marriage of Stefan Czarnecki to Zdzisława Czarnecka, in Poznań in 1937, had not been dissolved when he contracted his second marriage with Marie Louise Czarnecka and that his second marriage was therefore bigamous and should be annulled. Marie Louise Czarnecka, for her part, contended that the action for annulment was inadmissible because the Polish courts did not have jurisdiction: the action should have been brought before a French court.

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 applies inter alia – whatever the nature of the court or tribunal – in civil matters relating to divorce, legal separation or marriage annulment. Under the fifth and sixth indents of Article 3(1)(a) of that regulation, matters relating to those subjects come within the jurisdiction, inter alia, of the courts of the Member State in whose territory the applicant is habitually resident:

(1) provided that he or she resided there for at least one year immediately before the application was made; or

(2) provided that he or she resided there for at least six months immediately before the application was made and that he or she is a national of the Member State in question.

The Court of Appeal in Warsaw therefore asked the Court of Justice whether the regulation applied to an action for annulment of marriage brought by a third party following the death of one of the spouses and whether such a person might rely on the grounds of jurisdiction set out in that provision of the regulation.

In Edyta Mikołajczyk v Marie Louise Czarnecka and Stefan Czarnecki [2016] CJEU  ECLI:EU:C:2016:772 the Court noted that the applicability of the regulation stated that marriage annulment was one of the matters within its scope, without drawing any distinction on the basis of the date on which such an action was brought in relation to the death of one of the spouses or the identity of the person entitled to bring such an action. Furthermore, an action for annulment of marriage brought by a third party following the death of one of the spouses was not included in the list of matters excluded from the scope of that regulation.

The Court took the view that excluding an action for annulment of marriage from the scope of the regulation would be liable to increase legal uncertainty because there was no uniform regulatory framework in that area.

Moreover, the fact that the action related to a marriage previously ended by the death of one of the spouses did not mean that it fell outside the scope of the regulation. It could not be excluded that a person might have an interest in having a marriage annulled, even after the death of one of the spouses. Such an interest had to be assessed in the light of the applicable national legislation; but there was no reason to deprive a third party who had brought an action for annulment of a marriage following the death of one of the spouses of the benefit of the uniform conflict-of-law rules laid down by the regulation.

The Court accordingly held that an action for annulment of marriage brought by a third party following the death of one of the spouses came within the scope of the regulation.

As regards the grounds of jurisdiction set out in the fifth and sixth indents of Article 3(1)(a) of the regulation, the Court noted that those provisions recognised, under certain conditions, the jurisdiction of the courts of the member state in whose territory the applicant was habitually resident to rule on the dissolution of matrimonial ties. The jurisdiction rules laid down in the regulation were intended to protect the interests of spouses, to reflect the mobility of individuals and also to protect the rights of a spouse who had left the country of common habitual residence. Therefore, the annulment action should have been brought in France, where SC and MLC had lived, and not in Poland where EM resides.

The Court (Second Chamber) ruled that:

“1. Article 1(1)(a) of 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, must be interpreted as meaning that an action for annulment of marriage brought by a third party following the death of one of the spouses falls within the scope of Regulation No 2201/2003.

2. The fifth and sixth indents of Article 3(1)(a) of Regulation No 2201/2003 must be interpreted as meaning that a person other than one of the spouses who brings an action for annulment of marriage may not rely on the grounds of jurisdiction set out in those provisions.

[Slight update with thanks to Religion Clause.]

Cite this article as: Frank Cranmer, "Can you seek to annul a marriage when one of the parties is dead?: Mikołajczyk v Czarnecka" in Law & Religion UK, 14 October 2016, https://lawandreligionuk.com/2016/10/14/can-you-seek-to-annul-a-marriage-when-one-of-the-parties-is-dead-mikolajczyk-v-czarnecka/

2 thoughts on “Can you seek to annul a marriage when one of the parties is dead?: Mikołajczyk v Czarnecka

  1. The jurisdiction rules laid down in the regulation were intended to protect the interests of spouses, to reflect the mobility of individuals and also to protect the rights of a spouse who had left the country of common habitual residence.

  2. No doubt: but the case nevertheless looks rather odd to someone raised in the common law. (Incidentally, we don’t accept advertising for dating websites – or, indeed, for anything else.)

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