36 No. 77 JUSTICE post-war efforts to convince such pastors to accept the marriage permissions by the Vaad HaHazalah’s Rabbinical Board in Sweden. As stated, these permissions, based on thorough investigations for the Jerusalem Rabbinate or the London Beit Din, typically resulted in an “affidavit” by the local Vaad HaHazalah. He recounts that only some of these efforts were successful, while in many cases the pastors refused to issue the much-coveted hinderlöshetsintyg. A legal commentary on the 1947 Swedish Population Registration Ordinance explains that the preferred means to prove a foreigner’s personal status is through official documents from the foreigner’s home country. However, it adds that when such documents cannot be obtained, a pastor may rely on the testimony of persons with relevant knowledge about this status,18 on the foreign person’s own testimony, or other reasonably available evidence. He may use his discretion in this regard.19 Considering the fact that the right to marry and establish a family is a fundamental human right, recognized under the 1947 Universal Declaration of Human Rights (Article 16), and later under the 1951 Refugee Convention (Article 12),20 and in view of the unprecedented circumstances of the Holocaust when millions of Jews were murdered under conditions where no official death certificates could be issued, we would argue that Swedish officials (in this case pastors) were under an obligation to accept alternative sources of evidence on the deaths of the husbands of these poor widows. Such evidence, including testimonies by various witnesses to the death of the husband, served as the basis for the Rabbinical judgments that permitted the widow to remarry. The evidence was undoubtedly shared with the pastors by the survivor and any advocate on their behalf, such as Rabbi Jacobson. There was no reason for the pastor to assume that the Rabbinical judges who had investigated the case and concluded that the husband was dead were less concerned than he was about the devastating consequences if the supposedly deceased spouse later reappeared. Thus, the insistence by many pastors on the production of an official death certificate, when it was clearly impossible to obtain, amounts to an arbitrary abuse of bureaucratic power. Furthermore, we would argue that in a situation where a foreign couple was married under a foreign religious legal system, such as Jewish Halacha, that same legal system (lex causae matrimonii) should also govern the dissolution of the marriage. Hence, judgments by Rabbinical Courts attesting to the dissolution of a marriage due to the death of the husband could be considered an authoritative act under the governing law.21 Indeed, one can find support for this principle in the 1904 Swedish law on private international law relating to marriage,22 which provides that when neither of the two persons who want to marry is a Swedish citizen or resident, their legal right to marry can be governed by their choice of a jurisdiction to which they have a connection.23 This is especially justified where the States of which they had been citizens had failed to protect them against persecution and genocide, and now were unable to provide them with official proof that their spouses had been murdered. Some of these state administrations were also dysfunctional at that stage so soon after WWII, or had de facto ceased to exist as independent states, so to demand a death certificate from them was to demand the impossible. 18. Alfred Wihlborg, FOLKBOKFÖRINGSFÖRORDNINGEN 130 (Håkan Ohlssons Förlag, 1947). 19. Ibid. at 126, point 4. This understanding was also confirmed by the Swedish Tax Agency’s (RSV) directives to the pastors administering the population registry in relation to marriage obstacle assessments (Riksskatteverkets föreskrifter för hindersprövning), as well as by an archivist of the National Swedish Archive (Riksarkivet), Eva-Maria Hansson, in an email of Aug. 27, 2025. Both sources are on file with the authors. 20. Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150. Art. 12 of the Convention requires parties to respect a refugee’s personal status and the rights that come with it, particularly rights related to marriage. It is considered as an indirect recognition of the right to marry. Art. 12.1 provides that the refugee’s personal status shall be governed by the law of his domicile or place of residence. However, Sweden entered a reservation to this provision, in order to preserve its approach that the law of where the marriage was entered should apply even in Sweden. This further supports our claim. 21. See F.C. von Savigny, A TREATISE ON THE CONFLICT OF LAWS 62 (2d ed., T. & T. Clark 1880). 22. Lag (1904:26 s.1) om vissa internationella rättsförhållanden rörande äktenskap och förmynderskap. [Law (1904:26 s. 1) on certain international legal relationships concerning marriage and guardianship.] 23. Ibid. at art. 1. The provision refers to the choice of either the jurisdiction of their domicile or of their citizenship. We would argue that, by analogy, Jewish law could be chosen by Jewish stateless refugees if the parties so request since they married according to Jewish law.
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