Article 97a of the Swiss Civil Code provides that "the civil status officer shall refuse his assistance when one of the parties clearly does not intend to establish a marital community but to circumvent the provisions on the admission and stay of foreigners." To this end, he "hears the parties; he may request information from other authorities or third parties."
This provision applies to both civil marriages between Swiss nationals and foreigners (LEI 42), as well as marriages between foreigners where one has a residence permit (Permit B, LEI 44), a settlement permit (Permit C, LEI 43), or a short-term permit (Permit L, LEI 45). For persons with refugee status (LAsi 3), their spouses are generally recognized as refugees automatically as well (LAsi 51 I). Thus, civil marriage offers protection to the spouse and minor children (up to 21 years for family members not covered by free movement agreements), including under certain conditions, protection against deportation (LEI 42 ss in fine).
However, to benefit from this protection, the marriage must not be a sham marriage solely designed to bypass immigration laws. The civil status officer is only authorized to refuse the marriage in cases of clear abuse (TF 5A_785/2009 c. 5.1; TF 5A_225/2011 c. 5.1.1; TF 5A_901/2012 c. 4.2.1).
Situations That May Justify Refusal and Constitute Clear Cases of Abuse
The courts have outlined several examples that might indicate a sham marriage (TF 2C_400/2011 c. 3.1):
A significant age difference between the parties;
Inability of the parties to communicate in a common language;
Lack of mutual knowledge of their living conditions and circumstances (family, friends, profession, hobbies, habits, etc.);
Financial arrangements related to the marriage;
A marriage plan developed shortly after meeting;
Ongoing deportation proceedings against one of the parties whose right to stay in Switzerland depends on the marriage;
Absence of cohabitation before marriage;
The person admitted to reside in Switzerland belongs to a marginalized social group.
If the civil status officer identifies any of these situations, or any other indication of clear abuse, he may conduct a hearing, which is usually held separately but may be combined if deemed appropriate for establishing the facts (OEC 74a II, III).
During this hearing, which must be recorded in writing (OEC 74a V), the civil status officer will check whether the couple knows details such as the date of their meeting, their professions, families, friends, leisure activities, character, significant life events, sexual preferences, and their common lifestyle, etc.
It should also be noted that the hearing is conducted in the official language determined by cantonal law (French, for example, in the canton of Vaud), and the costs for an interpreter are borne by the couple. The civil status officer may request information from third parties, such as immigration authorities (LDEA 9 j). However, legal professionals are not obligated to disclose their clients' situations to the civil status officer; therefore, you can trust that the Consultation Juridique du Valentin will not disclose any information on this matter.
Moreover, a refusal by a third party cannot be interpreted as an indication that the marriage is a sham.
For More Information
If you would like more information on this topic, the Consultation Juridique du Valentin will be pleased to welcome you to our offices at Rue du Valentin 1, 1004 Lausanne, to answer your questions. We can also be reached by phone at 021 351 30 00 and by email at info@cjdv.ch. Appointments can also be made directly through our website: https://www.consultationjuridiqueduvalentin.ch/.
Reference Book:
BOHNET and GUILLOD (eds), Practical Commentary – Matrimonial Law – Substance and Procedure, 2016, especially the commentary on Article 97a CC, pages 80 to 85.
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