One application of the annulment of marriage concerns marriages of convenience related to immigration law (Art. 105 para. 4 CC). There are two decisive elements to consider: on the one hand, at least one of the spouses must intend to evade the provisions related to the admission and residence of foreigners (Art. 97a CC), thus not wishing to create a genuine marital community. On the other hand, the desired outcome must have been achieved, and no other means should be possible. The good faith of the spouses is, however, presumed (Art. 3 CC).
One indicator of a marriage of convenience is when the marriage is concluded during an expulsion procedure or when one of the fiancés is staying illegally. A fictitious marriage will only be annulled when there are very strong indications, and the civil registrar must therefore provide a high level of proof. In fact, mere suspicion or a simple impression are not sufficient. There must be objective and concrete evidence of a manifest and flagrant abuse. For example, the following situations are not decisive when considered in isolation: a large age difference, payment of a sum of money, separate residences, a brief relationship before marriage, a previous rejection of a residence permit application, or the possibility of it being rejected during the procedure. On the other hand, issues such as the inability of the spouses to communicate, lack of knowledge of each other, or total absence of regular contact are considered more significant. Furthermore, the existence of intimate relations alone does not exclude the case of a marriage of convenience.
The civil registrar may request information from other authorities or third parties when there are well-founded doubts. However, they cannot inspect the couple’s apartment. The fiancés may also request that information be gathered from other authorities or third parties, and they have the option to submit written documents—such as a joint lease agreement and correspondence—or photographs proving the sincerity of their relationship (Art. 16 para. 6 OEC). The manifestly abusive nature of the union is proven only by concrete and converging evidence. If this is the case, the civil registrar will notify the fiancés of their intention to issue a negative decision, allowing the parties concerned to respond in writing within 20 days and provide additional evidence. Once the refusal becomes final, the authority communicates its decision in writing, including information on appeal procedures (Art. 74a para. 6 OEC) and notifies the cantonal migration authorities in the canton of residence of the individuals concerned.
Regarding the effects, they are similar to other cases of annulment, except when children are born during the marriage, which creates a new form of paternity denial action.
Additionally, it is possible to combine actions for divorce and annulment.
If you would like more legal information on this matter, do not hesitate to contact the Valentin Legal Consultation. We would be pleased to welcome you to our offices: either for personal advice or to benefit from our online services. We are also reachable by phone at 021 351 30 00 and by email at info@cdjv.ch.
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