A person’s identity has multifaceted aspects. It includes the classic elements of identification (such as name, surname and date of birth), but also the elements of personal and family status (marital status and filiation). Moreover, the status of an individual is not fixed; it is created and can change over the course of a lifetime: marriage, divorce, partnership or, far less common, changing name or sex. Nowadays, we live in a globalised world. Events that affect the status and therefore the identity of people can occur in one country, but people may eventually move abroad. How does international mobility affect status?
Normally, the principle of permanence of a person’s status should ensure its stability, but to cross a border could have more consequences than one would initially think. Someone can see their name changed depending on the country they are in or because of marriage, filiation or divorce. Their personal status may disappear because this event took place in another country. And of course, if the status of the person disappears, rights dependent on it cease to exist as well. The following paragraphs introduce examples to illustrate these situations, but the list is by no means exhaustive.
Passing on of a name
Usually it is one of two reasons that people may have a different name in different countries. Firstly, there are people who are not a national of the country in which they reside. When a child is born, they should declare the birth to a local civil status officer, who will draw up a birth certificate which will include the name of the child. To determine this name, generally speaking, the civil status officer will apply its own rules of conflict of laws.1 Therefore, it can happen that the content of the substantive law that the conflict rules designate is totally different from the one of the right designated by the conflict law rules of the country of origin of the individual concerned. For example, it is possible that, by application of the law designated by the conflict rules in force in the country of birth, the child can have a double name or parents choose to give the child the name of either its father or its mother. If these possibilities do not exist according to the content of the substantive law designated by the conflict rule of the child’s country of origin and, for example, this law states that the father’s name is the only one that can be passed on, the child will be identified differently in the two countries. This situation occurs regularly in the case of declarations of birth to both a local and a consular civil status officer: the child will have a birth certificate drawn up by the local officer in which it is designated under both its father’s and its mother’s name (assuming they have both chosen to pass on their name to the child) and another birth certificate issued by the consular officer in which only the name of the father is indicated as the name of the child. Those differences will then be reproduced in all official documents issued by the authorities of both countries, such as the identity card, passport and residence permit.
The situation in this example happens frequently, and although a decision of the European Union Court of Justice provides a solution, it is only binding within the European Union. Since a jurisprudence of 14 October 2008, under Article 18 EC Member States are obliged to recognise the child’s name as it was assigned and registered by the authority of the Member State in whose territory it was born, even if it is one of their nationals.2 However, the problem remains unsolved when the situation occurs in states that are not all members of the European Union.
Secondly, people can have several nationalities. If, regarding to passing on a name, the country in which the birth occurs uses the national law as conflict rule, we must determine which nationality should be retained. This situation is known as a nationalities conflict and used to be settled by two simple principles: when among nationalities in conflict a law of the forum existed, it had to be chosen; if not, the most effective nationality (the one with which the person had the most links) had to be retained. Therefore, the authorities of each country of which the person had the nationality solved the nationalities conflict in favour of their own nationality and applied its own law to determine the name. And of course, it happened that the name given to the person by each of its national legislations was different. Again, the person had birth certificates indicating two different names and the difference was reproduced in other official documents, such as their passport or identity card. In this case also, a decision of the EU Court of Justice has provided a solution.3 It is forbidden to impose one of its national laws to a person, they must be able to choose the national law they want to prevail. However, this solution only applies if the nationalities in conflict are Member States of the European Union. There is currently no general solution, despite the work of the International Commission of Civil Status. By Convention No. 21 of 8 September 1992, the Commission created a certificate of differing surnames.4 This certificate does not eliminate the problem of diversity of names used by an individual, but at least a document is issued allowing an official to give a written notice stating that the citizen concerned has different names in different states. Unfortunately, the text is only in force in four countries: France, Spain, Italy and The Netherlands. In 2005, the same Commission drafted Convention No. 31 on the recognition of surnames, but the text is not in force.
The marital status of a person (marriage, divorce, registered partnership) is part of their identity. Although it does not have the same value as the family name, it still helps to define who the person is and also what their status and rights are. Furthermore, the marital status of a person is a privacy matter, as it reveals someone’s personal choices. As such, Article 8 of the European Convention on Human Rights protects many of its aspects.
Yet it happens regularly that when people cross a border, their marital status is mishandled by private international law. In some cases, the ‘new’ country of those concerned does not recognise their marital status. The reason for non‑recognition of the marital status may be the defence of a fundamental right. The fight against forced marriage and equality between men and women are totally respectable reasons to refuse recognition of non‑consented marriages and unequal divorce, especially in the case of repudiations. However, if an exception to the non‑ recognition of forced marriages is not conceivable in terms of funda-mental rights, this is not as obvious for unilateral divorce and repudiation. This is not to say that this kind of disunion is good, but the consequences of non‑recognition of repudiations can be very difficult for those involved, and especially for women. When a woman has been repudiated by her husband in her country of origin, and the break‑up is not recognised by the country in which she currently lives, she is still considered married according to the authorities of this country. So she may not marry again, or claim financial compensation that may have been ordered in the foreign decision. Her only recourse is to initiate new divorce proceedings in her country of habitual residence, but of course the authorities of her country of origin will never recognise the divorce decision. Unfortunately, she has no other choice if she wants to resolve her complex marital status: married in one country, divorced in the other. So maybe legislations like the French one, which refuse any effect to these foreign repudiation decisions in any case are not always the best.5 Some legislations, as for instance Spanish law, allow the recognition of foreign repudiations under certain conditions and when it is at a woman’s request.6 The latter seem to find a better balance between fundamental rights and respect of the principle of permanence of a person’s status.
Validity, enforceability and recognition of the marriage
The same can occur with same‑sex marriages. Some countries have extended their marriage laws to include same‑sex couples (for example, France, Spain, Portugal, Denmark, South Africa and Argentina), while others have clearly affirmed their heterosexuality, sometimes in their Constitution (Hungary, Poland, Bulgaria). Therefore, it is possible that the spouse’s status created in one country will not be recognised in another, and with that non‑recognition all the rights related to that status will cease to exist on the other side of the border: no possibility to secure a contribution to household expenses, even in the case of abandonment, no possibility of invoking its matrimonial regime, no inheritance or social benefits for the surviving spouse.
Some legislations, including the French one, devise legal mechanisms introducing nuances between recognition and non‑recognition. They distinguish between validity and recognition of marriage on the one hand, and enforceability of the marriage on the other. Thus, Article 171‑5 of the French Civil Code states that a marriage of a French couple conducted abroad by a foreign authority is not enforceable against third parties until this marriage has been transcribed in the French civil status’ records. It is not the quality of spouse that is challenged, but the opposability against third parties. But as administrations are third parties, this means that the marital status is empty of much of its substance.
Different problems may arise with the recognition of affiliation across frontiers, but only two cases will be dealt with here: the issue of prohibiting the filiation of children born out of wedlock by countries following Muslim law, and the issue of the filiation of children born to a surrogate mother.
Children born out of wedlock
In countries following Muslim law, such as Morocco and Egypt, it is strictly forbidden to establish the filiation of children born out of wedlock, particularly with their father. When people from these countries have settled in another country or when they are born in another country (and perhaps have dual nationality) it may happen that they have children out of wedlock. If the parentage of these children is fully established in their country of residence and they have the civil status records to prove it, this will probably not amount to a filiation able to be recognised by the country of origin of the parents, especially regarding the establishment of fatherhood. In case the child is abandoned by its father and the father returns to his country of origin, the child shall not be entitled to initiate legal proceedings against the father at the local courts. Also, if the child gets a court order in its country of residence, for example ordering its father to pay alimony, this decision will have no chance of being enforced in countries that do not recognise the filiation of children born out of wedlock. Moreover, if the parents of a child born out of wedlock are deceased, and there is an estate on the father’s side, they cannot assert their status in order to take possession of this property because their filiation will not be recognised: no affiliation, no rights arising from filiation.
Children born to a surrogate mother
Depending on the state, the practice of surrogacy7 is prohibited8, legal9 or unregulated10. But obviously the prohibition of this practice on the territory of a state does not prevent people from using a surrogacy agreement abroad. What happens when the child and its intended parents return to the country of residence where surrogacy is prohibited? Several countries have denied all effects to this filiation on their territory: refusal to enter the foreign birth acts in domestic civil status’ registers, invocation of public order and even fraud. France has even cancelled the recognition of a child fathered by the man who was both the biological and intended father.11 Therefore, it was difficult to understand what exactly was the legal situation and the identity of the child. Who had parental responsibility? What was its nationality?
Italy went even further in the case of a surrogacy practised in Ukraine in favour of a heterosexual Italian couple, when they had the child removed from its intended parents and put up for adoption.12 However, it is true that neither the man nor the woman were biologically related to the child.13 The recent condemnation of France by the European Court of Human Rights does not solve the issue completely. In its decision of 24 June 2014, the Court condemned France for infringement of the child’s right to identity (this right is part of the right to privacy and is protected by Article 8 of the ECHR), but only because the French jurisprudence result deprives a biological father of any possibility to have a bond of filiation with his biological child: refusal of recognition of filiation that exists abroad and prohibition of establishment of filiation in France.14 As to the situation in which the intended parents are not biologically related to the child, the French Cour de cassation has not yet decided which path it intends to take after the condemnation of France by the ECHR.
In contrast, the German Bundesgerichtshof, according to a decision of 10 December 2014, accepted the recognition of an intended filiation notwithstanding the consideration of the biological bond of each of the intended parents (one of them was biologically related, the other not, but the biological relation was not relevant to the decision).15 The case concerned the filiation of a child conceived for two men who had entered into a surrogacy agreement in California. According to the German judges, filiation of the child for both fathers should be recognised, especially in the name of the child’s right to identity. In a case similar to the Italian case mentioned above, the Italian Corte Suprema di Cassazione again confirmed the child’s placement adoption.16 According to the Italian court, states are forced to recognise the filiation or allow its establishment only when there is a biological link between the intended parents and the child born as the result of a surrogacy agreement. Until a global solution is found, children born this way will continue to have a complex filiation that changes from country to country, even though they are not responsible for the circumstances of their birth.
A large number of people’s rights depend on their family and individual status. If this status changes according to the states on whose territory they are, crossing borders may alter a part of their identity. Thus people are deprived of their identity and status rights because of their international mobility. The principle of the permanence of a person’s status is called into question, and beyond that, the respect of fundamental rights. Of course, there is no question of forcing the states to recognise just anything: states have the duty to fight against intolerable practices such as forced marriage, child trafficking and the enslavement of women. However, states should look for reasonable solutions that are able to preserve the best possible balance between individual rights and the rules necessary for the organisation of societies.
Such a reflection has become extremely urgent in order to ensure that when an international displacement takes place, the personal status and particularly the international effects of civil status documents are not affected. In light of the principle of free movement, the European Union is concerned about the problem. If the draft regulations the EU is trying to develop will be voted on, a first step towards a solution will be achieved, but it will still not be enough to solve all issues.17 The elaboration of an international convention on the subject beyond the European Union is difficult and in any event, a very long process. Meanwhile, it is the responsibility of each state to find a balanced solution in its domestic law.
1. There is no European regulation to unify conflict law rules applicable to the surname. The only convention having this object is Convention No. 19 of the International Commission on Civil Status (ICCS), Convention on the law applicable to surnames and forenames, signed at Munich on 5 September 1980. It entered into force only in Spain, Italy, the Netherlands and Portugal www.ciec1.org.
2. ECJ, Grunkin‑Paul, 14 October 2008, C‑353/06, Rev. crit.
DIP 2009, p. 80, note by P. Lagarde, JDI 2009, p. 203,
note by L. d’Avout.
3. ECJ, Garcia‑Avello v. Belgium, 2 October 2003, C‑148/02,
JDI 2004, p. 1225, note by S. Poillot‑Peruzzetto, Dalloz. 2004, p. 1476, note by M. Audit, Rev. crit. DIP 2004, p. 192, note by P. Lagarde.
4. ICCS Convention n° 21, 8 September 1992, Convention on the issue of a certificate of differing surnames. This text is in force since 1 October 1990 www.ciec1.org.
5. Cour de Cassation, 1st civil chamber, 17 February 2004, Gaz. Pal., 25‑26 February 2004, p. 29, note by M.‑L. Niboyet, Dalloz 2004, p. 825, concl. F. Cavarroc; Dalloz 2004, p. 815, P. Courbe, « Le rejet des répudiations musulmanes ».
The solution was reiterated many times, including recently by the French Court of Cassation, 1st civil chamber, 23 October 2013, AJ Famille, som., p. 709; Dalloz 2013,
p. 2518; JCP G 2013, n° 2057.
6. ATS 21 April 1998 and ATS 18 May 2004.
7. On the diversity of laws and practices, A comparative study on the regime of surrogacy in EU Member States, Report for the European Parliament, L. Brunet (dir.), 2013; K. Trimmings and P. Beaumont, International Surrogacy arrangements, Hart publishing, 2013; F. Monéger (dir.), Gestation pour autrui/Surrogate Motherhood, Société de législation comparée, 2011; H. Fulchiron et J. Sosson, Filiation, parenté, origines : le droit et l’engendrement à plusieurs, Bruylant, 2014.
8. France, Germany, Austria, Spain, Estonia, Finland, Iceland, Italy, Moldova, Montenegro, Serbia, Slovenia, Sweden, Switzerland, Turkey…
9. Albania, Georgia, Greece, Netherlands, United Kingdom, Russia, Ukraine, some states in the United States (California, Minnesota etc.)…
10. Czech Republic, Ireland, Belgium, Thailand…
11. Cour de Cassation, 1st civil chamber, 13 September 2013, n°12‑18.315 and n°12‑30.138, Dalloz. 2013, p. 2377,
concl. C. Petit, chron. Dr. famille, n°43, obs. A. Gouttenoire, JDI 2014, com. n°1, note J. Guillaumé, adde H. Fulchiron and C. Bidaud‑Garon, Dans les limbes du droit, A propos de la situation des enfants nés à l’étranger avec l’assistance d’une mère porteuse, Dalloz. 2013, p. 2349.
12. This case was brought to the ECHR, decision is expected: Paradiso and Campanelli v. Italy, req., n°25358/12.
13. It seems that after being back in Italy with the child, the father discovered there was no biological link between him and the child, cf. the request: http://hudoc.echr.coe.int.
14. CEDH 26 June 2014, Labassée v. France, n° 65941/11 and Mennesson v. France, n° 65192/11, Dalloz 2014. 1797, note
F. Chénedé, 1773, chron. H. Fulchiron and C. Bidaud‑Garon, 1787, obs. P. Bonfils and A. Gouttenoire, and 1806,
note L. d’Avout.
15. Bundesgerichtshof, 10. December 2014, XII ZB 463/13. 16 Cassazione civile sez. I, 11/11/2014, n. 24001. 17 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, COM(2013) 228 final, 24.4.2013, http://ec.europa.eu/justice/civil/files/com_2013_228_en.pdf.