Zurich, 04.12.2023, Panha Van

Right to marry and right to found a family

"Marriage of convenience" , a challenge for the granting of residence permits to third nationals.

The right to marry and the right to found a family are fundamental rights that are recognised with a high degree of protection by domestic and international jurisdictions. Both are constitutionally guaranteed by Article 14 of the Swiss Constitution (BV) as well as Articles 8 and 12 of the European Convention on Human Rights (ECHR).

Third nationals (non-EU/EFTA) who wish to get married with a Swiss citizen or a lawful foreign resident in Switzerland (C or B permit holders) regularly faced a long procedure and a complex examination conducted by the competent public authority. However, this procedure and examination are required by law and necessary in a democratic society. The only possibility legally permitted for third nationals to reunite with their future spouse in Switzerland is to get married, on the condition that the marriage is based on mutual marital relationship and willingness to establish a family.

According to Article 98 paragraph 4 of the Swiss Civil Code (ZGB), the foreign national must be in possession of a valid resident permit during the course of the marriage preparatory procedure. As per Article 17 paragraph 2 of the Federal Act on Foreign Nationals and Integration (AIG), the competent public authority shall issue a short-term resident permit or an entry visa once the marriage admission requirements are clearly fulfilled and once the marriage is likely to take place in a foreseeable future. This permission has been firmly confirmed in the judgement of the Federal Supreme Court of Switzerland 2C_349/2011 dated 23 November 2011 in which the judge stated that the Article 98 of the ZGB could contradict Article 12 of the ECHR. This was the first time that a Supreme Court judge had issued a precedent breaking the legal barriers for the benefit of foreigners to allow them to easily get married in Switzerland without leaving the country.

It is basically up to the competent public authority to prove the marriage of convenience (Article 90 AIG). The factors that may lead them to suspect that marriage is sham are:

• Lack of an adequate contribution to marital obligations.
• Circumstances of getting to know each other.
• Short duration of the relationship.
• Imminent expulsion of applicant.
• Difficulties in communication (language).
• Significant age difference in marital relationship.
• Proof of relationship: social media communications and photos.
• Payment of compensation for the marriage.

However, the marriage of convenience is very difficult to prove. A cross-examination and concrete analysis must be carried out by the competent public authority based on circumstance situation, concrete evidence, unambiguous conclusion and actual facts according to the decision of the Federal Supreme Court of Switzerland 2C_613/2019 dated 14 November 2019.

In addition, the decision of the Federal Supreme Court of Switzerland 2C_491/2022 dated 17 November 2022 has interpreted that the competent public authority shall review the concrete willingness, common wishes and strong commitment of couple to live together in the future, to establish a long-term economic co-habitation based on physical and emotional affection, love and spiritual connection. The control after the marriage can be overseen by the local authority.

Generally, although various indications of a planned marriage of convenience could be identified, taken as a whole these ambiguous conclusions are not legally sufficient to refute the existence of an actual desire of the couple to marry.

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