Facts
On October 8, 2013, the Swiss Embassy in Tunis submitted a request to the Civil Status and Naturalization Service of the Canton of Fribourg (SECiN) for the issuance of a marriage capacity certificate for A., a Swiss national born in 1959, for the purpose of celebrating her marriage in Tunisia with B., a Tunisian citizen born in 1986. By decision of February 7, 2014, the SECiN refused to issue the requested certificate, considering that the plan to establish a marital community was not plausible, as the fiancé actually intended to evade the provisions relating to the admission and residence of foreigners in Switzerland. On February 4, 2015, the Directorate of Institutions, Agriculture and Forests of the Canton of Fribourg (DIAF) confirmed this decision.
Ruling on December 15, 2015 on the appeal of the engaged couple, the 1st Administrative Court of the Cantonal Tribunal of the State of Fribourg confirmed the decision of the DIAF. The Federal Tribunal admitted the civil appeal filed by the parties, annulled the decision of the cantonal court, and remanded the case to this court for a new decision.
Considerations
In accordance with Art. 75 of the Ordinance of April 28, 2004 on Civil Status (OEC), as amended on July 1, 2013, a marriage capacity certificate shall be issued at the request of the two engaged persons if this document is necessary for the celebration of the marriage of a Swiss citizen abroad. The provisions relating to the preparatory procedure for marriages celebrated in Switzerland (Art. 62-67, 69 and 74a OEC) are applicable "by analogy" to the competence and procedure.
According to the clear text of the aforementioned norms, it is sufficient that one of the engaged persons has the reprehensible intention for the civil registrar to refuse to assist in the preparatory procedure for the marriage. This solution is enshrined in the case law of the Federal Tribunal.
When the marriage is to be celebrated abroad, the Swiss authorities have the…