Refusal to authorize the marriage of a person whose previous marriage has been annulled by an ecclesiastical court

Facts

G. and Lorenza [D.], both of Spanish nationality, were married in Spain on October 15, 1972. On April 19, 1978, the Tribunal of the Diocese of Lausanne, Geneva and Fribourg pronounced the nullity of their marriage, a decision confirmed on appeal on June 2, 1978 by the Ecclesiastical Tribunal of the Diocese of Sion. On June 21, 1978, the official of the Diocese of Lausanne, Geneva and Fribourg declared that the marriage was "considered definitively null by the Catholic Church" and that the parties were "free to contract a new canonical marriage". On April 2, 1980, the Department of Justice and Police of the Canton of Geneva confirmed the refusal of the Cantonal Civil Registry Office to authorize the marriage of [O.], a Swiss national, with Lorenza [D.], on the grounds that the latter did not have the capacity to marry, as her previous marriage had not been dissolved by death, divorce or a judgment of nullity.

Considerations

The Federal Court dismissed the appeal of Lorenza [D.] and [O.] against this decision. It considered that the decisions of the ecclesiastical courts in Switzerland have no civil legal effect, in accordance with Art. 58 para. 2 of the Federal Constitution, which abolished ecclesiastical jurisdiction. Thus, the annulment of the marriage pronounced by the ecclesiastical courts is not recognized by the Swiss civil authorities and therefore does not allow Lorenza [D.] to contract a new marriage.

However, the Court specified that Lorenza [D.] could have filed for divorce in…