OGH Recognises WhatsApp Marriage

Mar 3, 2023 Benn-Ibler Rechtanwälte GmbH

A long-distance marriage ceremony in which the free will of the parties involved is not in doubt does not violate fundamental tenets of Austrian law.

The plaintiff and the defendant are Iranian nationals who had a long-term relationship. Before the defendant fled Iran in 2012, he gave his mother a general power of attorney. As under Iranian law a woman's leaving the country is only permitted if her father or husband consent, the plaintiff demanded that the defendant marry her. The plaintiff, her parents and the defendant's parents then went to the marriage notary's office in Tehran. The defendant's mother contacted the defendant via a phone call on the messaging service WhatsApp, stating that she would enter into the marriage on his behalf. The defendant did not oppose the plan. Now the plaintiff is seeking a divorce on grounds of fault under section 49 of the Austrian Marriage Act (Ehegesetz). Among other things, the defendant requested that the action be dismissed on the grounds of the marriage's nullity.

The court of first instance dismissed the action. As a prejudicial question regarding the validity of the marriage, the court came to the conclusion that Iranian law was to be applied via Section 16 of International Private Law. Under this law, a voluntary representation by proxy is possible. The court of appeal likewise did not uphold the plaintiff.

The Austrian Supreme Court (Oberster Gerichtshof) reacted as follows:

The Austrian Supreme Court applied Iranian civil law. According to Section 1071 of the Iranian Civil Code, persons to be married can grant a power of attorney to a proxy, and the proxy can also choose the bride or groom. However, according to Section 6 International Private Law (public order), there is a conflict of laws if the legal outcome is incompatible with the fundamental values of a country’s (in this case: Austrian) legal system. Under Austrian law, proxy representation in marriage is barred. However, marriages entered into at a distance are not fundamentally contrary to Austrian legal values. According to the legal literature cited by the Austrian Supreme Court, a proxy marriage does not stand up to the public order test or even to the freedom to marry if partner selection possibly involves forced marriage. However, the Austrian Supreme Court did not consider this particular marriage by distance to fall into this category since the defendant's mother did not choose the future spouse and the defendant had authorised his mother to act as a proxy. The Austrian Supreme Court therefore affirmed the validity of the marriage.

OGH 5 Ob 42/22w (01.12.2022)