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« on: August 13, 2005, 01:42:05 AM »
The issue of the Baels children is quite the complicated one, concerning several Belgian laws and such:
So lets map out why the validity of the Baels children is such a contested issue:
- the validity of the marriage is contested, and here's why:
= Article 85 of the Belgian constitution states that "any act of the king, including his own consent to his marriage, must be countersigned"
and this never occured, as the lawful government was in London at the time.
Therefore: Leopold no longer had a right to reign after the marriage.
But here's where it gets tricky.
- He didn't cease to reign in 1941.
- the recall of the king by the two houses on 20 July 1950 would in any case fulfill the third paragraph of article 85, thus restoring Leopold III's rights and those of his issue
But in many's minds: Leopold III's "marriage" to Liliane Baels was null and void in law,
thus, their children are illegitimate;
therefore, they are excluded from the succession to the Belgian throne by article 85, paragraph 1 (restriction to the legitimate descent of Leopold I).
Now if that seems confusing here's where it gets even worse: the question of "what is the act of a king...?"
Marriage is not an act of the king within the meaning of art. 106 ("no act of the king can have any effect unless countersigned by a minister who, by that alone, takes responsibility for that act": current numbering really article 85)
It cannot be claimed that every single act of the king needs to be countersigned (he can breathe, for example, on his own). Nor can it be claimed that every signed document needs a countersignature: I am sure his private correspondence is free of ministers' signatures. Is it that every legal document signed by the king must bear a minister's signature? That means a member of government must be present every time the king writes a check, signs a credit card slip, makes a deed. Such strictures on his private life (and waste of government's time) are unthinkable.
So what defines an "act of the king" within the plain meaning of article 106? The article immediately preceding, article 105: "the king has no powers other than those formally bestowed on him by the constitution of specific laws passed by virtue of the self-same constitution."
What are those powers? Searching through the constitution, one finds that the king: summons and closes sessions of the legislative, dissolves both houses, carries out the census and reapportionment, consents to marriage of princes, restores dynastic rights of those who married without consent, appoints and dismisses ministers, commissions officers of the armed forces, appoints civil servants and diplomats, judges and prosecutors, sanctions laws, issues regulations for their application, reduces or annuls sentences, mint coins, confers titles and decorations, carries out foreign policy, is commander in chief, declares state of war and peace, signs treaties.
An "act of the king" is just that: the king as king exercising his constitutional powers. No legal action of the king described, required, mandated, or allowed in the constitution can have any effect without countersignature. Signing a check is not an act of the king; it is an act of the citizen who happens to be king but is also a private individual (e.g., he owns property in his name, is paid a civil list, spends it as he pleases).
Is marriage an "act of the king"? It has dynastic, therefore political consequences. But is it described anywhere in the Constitution? No (no more than signing checks). There can be only two conclusions:
-the king cannot marry (or sign checks)
-the king can marry (and sign checks), without countersignature.
The first is absurd, so the second follows.
But let's suppose that the marriage could be construed as falling under article 106. Does the absence of countersignature make it void?
(2) Marriage does not require a signature
Marriage is a civil contract, described in Book I, Title V of the Belgian Civil Code (arts. 144 to 227). Chapter I deals with the prerequisites, chapter II with the formalities, chapter III with opposing claims, chapter IV with annulments. Title II deals with acts of the Etat Civil, and Chapter III describes the way a marriage takes place (arts. 63 to 76). In particular, article 75 says: "on the appointed day, the public officer in the townhall and before two witnesses receives from each party successively the statement that they want to become husband and wife, he declares, in the name of the law, that they are united in marriage, and he draws up the act immediately".
It is the exchange of consent before witnesses and following the requisite steps that makes the marriage contract. The "acte" which the officer then writes out is a document that attests to the existence of the marriage, but does not make it. The marriage is perfected once the public officer has spoken, the act is nothing but evidence (see Répertoire pratique du Droit Belge, s.v. mariage). Invalidity of that document does not void the marriage.
(3) The act of marriage does not require a signature
Article 39, part of the general dispositions on how acts of the etat civil are to be drawn up, says: "these acts shall be signed by the public officer, by the parties and the witnesses, or mention shall be made of the cause that prevents parties and witnesses from signing."
(4) A void, defective, or missing "acte de mariage" does not invalidate a marriage
How do we know that?
invalidity of the document is not a ground for annulment listed in chapter IV. Therefore, the marriage of Leopold III and Liliane Baels cannot be declared void on that basis.
the existence of the act is not essential to the marriage, because article 46 states: "If there were no registers, or if they have been lost, proof will be given by documents and witnesses; and in those cases, marriages, births and deaths shall be proven by the registers and documents coming from deceased parents, and by witnesses."
But what of article 194, which says: "no one can claim the status of spouse and the civil effects of marriage, if he does not present an act inscribed on the register of the etat civil," except in cases described in article 46. To this one can oppose article 196 which means in substance that neither spouse can have the act declared null when there is a recognized de facto situation of marriage (possession d'état). The interpretation of that clause (Répertoire pratique du droit belge, vol. 7, p. 841) is that a de facto situation of marriage (where the spouses have publicly lived as husband and wife and taken as such by everyone) is sufficient to overcome any formal defect of the act of marriage, such as being drawn on a loose sheet instead of on the official registers, or the absence of the signature of the public officer. If the lack of that signature (prescribed by law) can be compensated by the notoriety of the marriage, so can the lack of any other signature.
(5) The issue of a putative marriage without act is still legitimate
And what of article 195 says: "A de facto situation of marriage cannot dispense the alleged spouses who shall cite it to present the act of marriage to the public officer"? Even if it is well known that the two are married, and are considered as such and behave as such, they still must cite the original act in order to claim the "civil effects" of their marriage. Do such "civil effects" include the legitimacy of the issue?
Article 197 says: "If, however, in the cases of articles 194 and 195, there are children born of the individuals who have lived publicly as husband and wife, and who are both dead, the filiation of the children cannot be contested under the sole pretext of a lack of presentation of the act of marriage whenever that filiation is proven by de facto recognition and is not contrary to the statements of the act of birth."
So the issue can be legitimate even in the absence of an act of marriage.
So... "if"
The king's marriage is not an "act of the king" that falls under article 106. Even if it were, a signature is not needed, either for the marriage itself, or for the act of marriage, so no countersignature is needed. Even if it were, the marriage is not void. Even if it were without effect, the issue is legitimate.
In any case it's all opinion, how to interpret laws, marriage, and in this case the three children who could/couldn't rule if the matter came up, and are/aren't legitimate child.
I'm sure Belgium is thankful that there are so many desendents of Albert II that this will never be a issue over who has the right to rule and who doesn't.
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