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Digital Marriage and Divorce: Legality Versus Digital Solutions

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Abstract

Rapid developments in several relations between a citizen and a state have raised a question about the possibility to apply the whole digitalised system to administrative deeds, including contracting marriage and confirming divorce. Technology must be in conformity with law, not only with procedural law but also with substantial law. On the other hand, society must be open to innovations, including to the new values and traditions influencing the attitudes related to family matters. Society's reluctance to accept new ideas can lead to a situation in which a digital solution is not applicable because of an outdated substantive law. The article analyses which legal problems can arise in the digitalisation of marriage and divorce and discusses if those problems would be the impediments to ensuring the legality of the procedure. By this analysis, many questions can arise and would need an answer; for example, is it possible to control certain data, wills and conditions? How does one give explanations and avoid fraud? Are marriage and divorce deeds with similar legal and social meaning to put them into the digital form? Should the traditional marriage and divorce models be replaced by the digital one, or should they exist concurrently? How ready is society in such a novel digital thought at all?

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Notes

  1. 1.

    See, e.g., Macedo (1998); Bradley (2003); Garrison and Scott (2012); Lifshitz (2012).

  2. 2.

    See Peters (2013), p. 676; Detloff (2003), p. 61; Stark (2013), p. 690.

  3. 3.

    See, e.g., Needham (2014); Willekens (2003); Mason et al. (2001); D’Angelo (2014); Sörgjerd (2012); Antokolskaia (2003).

  4. 4.

    Estonian legal acts in English are available on the website www.riigiteataja.ee/en/. As the article bases mainly on Estonian Family Law Act and Estonian Vital Statistics Procedure Act, then references to certain paragraphs are made only when they have a certain importance or the norm is difficult to find.

  5. 5.

    Gurtin (2010), p. 309.

  6. 6.

    New information and communication technologies have been described additionally as the new smart community movement (see Coe et al. (2001), pp. 81 and 82).

  7. 7.

    Kim (2005), p. 100.

  8. 8.

    See European Commission. Green Paper to Promote Free Movement of Public Documents and Recognition of the Effects of Civil Status Records. COM(2010) 747 final, 14. December 2010; Proposal of the Regulation of the European Parliament and of the Council on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the European Union and amending Regulation (EU) No 1024/2012, COM(2013) 228 final 2013/0119 (COD).

  9. 9.

    United Nations E-Government Survey 2014, E-Government for the Future We Want. New York: United Nations. 2014, Bridging a digital divide (Chapter 6), p. 125.

  10. 10.

    Only Sweden had a bigger percentage—94 %. That is, Estonia was on second place. Nevertheless, based on Digital Economy and Society Index 2015, Estonia is characterised as a medium-performance group, together with the United Kingdom, Luxembourg, Ireland, Germany, Lithuania, Spain, Austria, France, Malta, Portugal and the Czech Republic. They are doing well in certain areas but still need to progress in others (http://ec.europa.eu/digital-agenda/en/digital-economy-and-society-index-desi (25.02.2015)). Estonia’s digital development has been described by the Digital Agenda Scoreboard as follows: Estonia is at the forefront in the supply and use of digital public services, which are the second best in Europe. Estonia remains the leader in the comprehensiveness of pre-filled online forms and the use of ePrescriptions by general practitioners (100 %). Estonians are well-skilled in the use of digital technologies (their digital skill levels are above those of the average EU user) and keen users of a variety of Internet activities. 22 % of Estonians shop cross border, a higher rate than the European average (https://ec.europa.eu/digital-agenda/en/scoreboard/estonia (25.02.2015)).

  11. 11.

    United Nations E-Government Survey 2014, E-Government for the Future We Want. New York: United Nations. 2014, Bridging a digital divide (Chapter 6), p. 142.

  12. 12.

    Card enables electronic authentication and serves as a digital signature to allow Estonians to sign contracts, vote, submit their tax declarations, etc.

  13. 13.

    Estonian Information Society Policy 2013, p. 24.

  14. 14.

    State Gazette (in Estonian Riigi Teataja (RT)) I 2009, 60, 395 (29.06.2014, 104).

  15. 15.

    The Estonian Family Law Act uses the term “vital statistics official”, but in most legal literature the word “registrar” is commonly used. For this reason, in the article the word “registrar” is used and means an official with the authority provided for a vital statistics official by the Family Law Act, the Vital Statistics Registration Act and other acts regulating the registration of vital statistics acts. Additionally, the term “official” has been used to refer to the state representative in an administrative deed—it covers vital statistic official, notary and clergyman.

  16. 16.

    In Estonia, vital statistics procedures are carried out by the county governments and rural municipalities or city governments. Moreover, marriages are contracted and divorces confirmed only by the county governments. Notaries have been given the authority to contract marriages and confirm divorces since 2010. Clergymen have been contracting marriages since 2001. Not all clergymen have such right, only those who have taken an exam on the rules of marriage regulation provided by law, including procedure, and have got a special right from the Minister of Interior. Further, they are under the supervision of county governments, which advise them on the one hand, and on the other hand they supervise clergymen in charge of handling administrative deeds concerning marriage. In Estonia, the religious wedding ceremony (religious marriage) and the civil marriage are separate. Only civil marriage has legal meaning, but the law allows those two procedures to be officiated at the same time in a church. The expansion of the authority of the vital statistics procedures derives from the need to facilitate the life of citizens. Still, Estonian Embassies do not have the right to contract marriages or confirm divorces, but they do other registrar’s obligations that the digital system of Population Register allows (see, e.g., Consular Act RT I 2008, 29,175. 30.10.2013).

  17. 17.

    The notary has the right to enter the data related to those procedures into the Population Register; the clergyman accomplishes the needed documents on paper, and the data are entered into the register by the registrar of the county government.

  18. 18.

    Population Register (see Population Register Act RT I 2000, 50, 317. 18.06.2014) is a base register for the national public administration containing the basic data of individuals (citizens and residents), which is updated continuously. As it consists of civil status data, it is the main database where other registers get their basic data about individuals. Anyway, not all public registers are yet connected to the Population Register, but this goal is the policy of Estonian digital development. This would ensure a similar civil status data in every register (see more about this policy in Joamets (2014), p. 147). Civil data in the Population Register have legal meaning, and the public sector must use the civil status and other data of this register in their administrative deeds.

  19. 19.

    Estonia differs from many EU member states in terms of the possibility to divorce outside of court.

  20. 20.

    See Family Law Act par 65 (2).

  21. 21.

    Notaries have the right to contract marriages outside their offices; ceremonies take place in masons, seashore, farm; clergymen in their churches or elsewhere.

  22. 22.

    When there is no access to the system, then the entry about the divorce on paper has legal meaning; divorce enters into force from the signature of the registrar of a written entry.

  23. 23.

    RT I 2009, 30, 177. 29.06.2014, 6.

  24. 24.

    As the clergyman has usually no access to the Population Register, the data are controlled later by the county government to which the clergyman co-operates.

  25. 25.

    The subject of the Population Register is an Estonian citizen; a citizen of the European Union, Member State of the European Economic Area or the Swiss Confederation who has registered his or her residence in Estonia; or an alien who has been granted a residence permit or right of residence in Estonia (Population Register Act par 4).

  26. 26.

    The court gives consent to marry after evaluating the capability of an adolescent to understand the legal consequences derived from marriage.

  27. 27.

    International Private Law Act (RT I 2002, 35, 2017) par 56.

  28. 28.

    See Vital Statistics Registration Act par 38 (3).

  29. 29.

    This can derive from the international agreements which are applicable instead of national law because of their supranational nature.

  30. 30.

    The choice of surname is regulated by the Estonian Name Law Act (RT 2005, 1, 1).

  31. 31.

    In general not earlier than 1 month and not later than 3 months from the application. There can be an exception with good reason for shortening or extending the term.

  32. 32.

    See www.eesti.ee.

  33. 33.

    See Vital Statistics Registration Act par 39 and 40.

  34. 34.

    See Proposal of the Regulation of the European Parliament and of the Council on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the European Union and amending Regulation (EU) No 1024/2012, COM(2013) 228 final 2013/0119 (COD).

  35. 35.

    Moreover, in today’s practice when an application is accomplished before an official, the future name of one spouse can be changed later but before the day of marriage.

  36. 36.

    Lal and Haleem (2002), p. 101.

  37. 37.

    This means that less than 1 month and later than 3 months.

  38. 38.

    In Estonian practice, the shortening of the marriage date is seldom. Officials know very well their responsibility to ground the exception and understand that the shortening of the term for no reason leads to nullity of the marriage.

  39. 39.

    Hamelink has said: “Computers cannot understand information in the form of pictures or words, but only when it is broken down into binary digits or bits: “zero” or “one”, “yes” or “no”, “on” or “off”” (Hamelink 1997, p. 4).

  40. 40.

    See Joamets (2012, 2013).

  41. 41.

    See Marriage Law Act par 9.

  42. 42.

    In practice, when a spouse takes the surname of another spouse, by divorce this spouse loses a right for this surname.

  43. 43.

    See, e.g., Oostveen and van den Besselaar (2007), p. 3.

  44. 44.

    See Oostveen and van den Besselaar (2007), p. 3.

  45. 45.

    Aikins and Krane (2010), p. 91.

  46. 46.

    Public sector has to use the data in the Population Register. See fn. 18.

  47. 47.

    And does not have to as well because in Estonian public sector, the data of this marriage are taken from the Population Register; using a document abroad needs a special confirmation anyway, and according to the state a document should be presented; the form of the document differs based on several international agreements regulating the recognition of family event documents.

  48. 48.

    Kim (2005), p. 105.

References

Books and articles

  • Aikins SK, Krane D (2010) Are public officials obstacles to citizen-centered E-government? An examination of municipal administrators’ motivations and actions. State Local Gov Rev 42(2):87–103

    Article  Google Scholar 

  • Antokolskaia MV (2003) Developments of family law in Western and Eastern Europe: common origins, common driving forces, common tendencies. J Fam Hist 28:52–69

    Article  Google Scholar 

  • Bradley D (2003) Comparative law, family law and common law. Oxf J Leg Stud 23(1):127–146

    Article  Google Scholar 

  • Coe A, Paquet G, Roy J (2001) E-governance and smart communities. A social learning challenge. Soc Sci Comput Rev 19(1):80–93

    Article  Google Scholar 

  • D’Angelo A (2014) Re-thinking family law: a new legal paradigm for stepfamilies? In: Boele-Woelki K, Detloff N, Gephart W (eds) Family law and culture in Europe. Developments, challenges and opportunities. Intersentia, pp 217–227

    Google Scholar 

  • Detloff N (2003) Arguments for the unification and harmonisation of family law in Europe. In: Boele-Woelki K (ed) Perspectives for the unification and harmonisation of family law in Europe. Intersentia, Antwerp-Oxford-New York, pp 37–64

    Google Scholar 

  • Garrison M, Scott ES (2012) Legal regulation of twenty-first-century families. In: Garrison M, Scott ES (eds) Marriage at the crossroads. Law, policy, and the brave new world of twenty-first-century families. Cambridge University Press, Cambridge, pp 303–326

    Google Scholar 

  • Gurtin GG (2010) Free the data!: E-governance for megaregions. Public Works Manage Policy 14(3):307–326

    Article  Google Scholar 

  • Hamelink CJ (1997) New information-communication technologies, social development and cultural change, UNRISD Discussion Paper No. 86

    Google Scholar 

  • Joamets K (2012) Marriage capacity, social values and law-making process. Int Comp Law Rev 12:97–115. Palackỳ University

    Google Scholar 

  • Joamets K (2013) Gender as an impediment of marriage, free movement of citizens, and EU charter of fundamental rights. In: Kerikmäe T (ed) Protecting human rights in the EU. Controversies and challenges of the charter of fundamental rights. Springer, pp 91–106

    Google Scholar 

  • Joamets K (2014) Civil status registration – more than data collection: EU digital development in promoting the free movement of civil status document. In: Kerikmäe T (ed) Regulating eTechnologies in the European Union. Normative realities and trends. Springer, Cham-Heidelberg-New York-Dordrecht-London, pp 141–156

    Google Scholar 

  • Kim PS (2005) Introduction: challenges and opportunities for democracy, administration and law. Int Rev Adm Sci 71(1):99–108

    Article  Google Scholar 

  • Lal R, Haleem A (2002) E-governance: an emerging paradigm. J Bus Perspect 99–109

    Google Scholar 

  • Lifshitz S (2012) The pluralistic vision of marriage. In: Garrison M, Scott ES (eds) Marriage at the crossroads. Law, policy, and the brave new world of twenty-first-century families. Cambridge University Press, Cambridge, pp 260–286

    Google Scholar 

  • Macedo S (1998) Sexuality and liberty: making room for nature and tradition? In: Estlund DM, Nussbaum C (eds) Sex, preference and family: essays on law and nature. Oxford University Press, New York, 86-10

    Google Scholar 

  • Mason MA, Fine MA, Carnochan S (2001) Family law in the new millennium: for whose families? J Fam Issues 22(859):859–888

    Article  Google Scholar 

  • Needham C (2014) The difficult relationship between family law and families. North East Law Rev 2:37–44

    Google Scholar 

  • Oostveen AM, van den Besselaar P (2007) Non-technical risks of remote electronic voting. Idea Group Inc., Amsterdam

    Book  Google Scholar 

  • Peters M (2013) The democratic function of the public sphere in Europe. German Law J 14(5):673–694

    Google Scholar 

  • Sörgjerd C (2012) The European Union’s Council of Europe’s and human rights’ perspectives on changing cohabitation models. Reconstructuring marriage. The legal status of relationships in a changing society. Intersentia, Cambridge, Antwerp, Portland, pp 275–311

    Google Scholar 

  • Stark B (2013) International law from the bottom up: fragmentation and transformation. Univ Pa J Int Law 34(4):687–742

    Google Scholar 

  • Willekens H (2003) Is contemporary western family law historically unique? J Fam Hist 28(70):70–107

    Article  Google Scholar 

List of other documents

  • Proposal of the Regulation of the European Parliament and of the Council on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the European Union and amending Regulation (EU) No 1024/2012, COM(2013) 228 final 2013/0119 (COD).

    Google Scholar 

  • European Commission. Green Paper to Promote Free Movement of Public Documents and Recognition of the Effects of Civil Status Records. COM(2010) 747 final, 14. December 2010.

    Google Scholar 

  • United Nations E-Government Survey 2014, E-Government for the Future We Want. New York: United Nations. 2014, Bridging a digital divide (Chapter 6).

    Google Scholar 

  • Digital Agenda Scoreboard. Available at: http://ec.europa.eu/digital-agenda/en/digital-economy-and-society-index-desi (25.02.2015).

  • Estonian Information Society Policy 2013.

    Google Scholar 

Legal acts

  • Estonian Name Law Act RT 2005, 1, 1.

    Google Scholar 

  • Estonian Consular Act RT I 2008, 29,175. 30.10.2013.

    Google Scholar 

  • Estonian Population Register Act RT I 2000, 50, 317. 18.06.2014.

    Google Scholar 

  • Estonian International Private Law Act RT I 2002, 35, 2017.

    Google Scholar 

  • Estonian Family Law RT I 2009, 60, 395. 29.06.2014, 104.

    Google Scholar 

  • Estonian Vital Statistics Registration Act RT I 2009, 30, 177. 29.06.2014, 6.

    Google Scholar 

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  1. Tallinn Law School, Tallinn University of Technology, Akadeemia tee 3, 12618, Tallinn, Estonia

    Kristi Joamets

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  1. Tallinn Law School, Tallinn University of Technology, Tallinn, Estonia

    Tanel Kerikmäe

  2. Tallinn Law School, Tallinn University of Technology, Tallinn, Estonia

    Addi Rull

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Joamets, K. (2016). Digital Marriage and Divorce: Legality Versus Digital Solutions. In: Kerikmäe, T., Rull, A. (eds) The Future of Law and eTechnologies. Springer, Cham. https://doi.org/10.1007/978-3-319-26896-5_9

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