個人資料保護辦公室

Gabinete para a Protecção de Dados Pessoais

Office for Personal Data Protection

Complaint Case Notes
Print

No: 0094/2017/IP

Title: Announcing matrimony history during marriage registration proceedings

Reason: Complaint

Brief:

      The current case stemmed from an individual, the Complainant, whose matrimony history was announced before him and his wife by a registrar, during the transcribing proceedings of their marriage in Bureau A. Since the Complainant’s wife had no knowledge of his previous marriage, the Complainant was in the opinion that the announcement was improper and a leak of personal data, and therefore he requested the GPDP (Gabinete para a Protecção de Dados Pessoais/Office for Personal Data Protection) to investigate.

Analysis:

      The Personal Data Protection Act (PDPA) shall apply to the data processing of the current case according to its Article 4(1)(1) and 3(1).
     According to Bureau A, one of its registrars, during the said proceedings, discovered the Complaint had a register of birth record, but not of a child with the Complainant’s current spouse. As a consequence, the registrar, according to the legal requirement of Article 113 of the Civil Registration Code, approved by Decree Law 59/99/M of October 18th, enquired the Complainant about the information of this birth record.
    Article 5(1) of the Civil Registration Code sets out that whenever a registration of civil status is drawn up outside the Macao SAR by a competent authority thereof, the concerned person can record this registration in the Macao SAR civil status registers, given that he habitually resides in the Macao SAR. However, this must be conducted when this person can produce proving documents of the foreign registration that is in accordance with the law of place thereof and it shows no incompatibility with the public order (ordem pública) of Macao. Article 43(f) of the same Code expresses that such foreign registration can be recorded into the Macao civil registers through transcription. Moreover, paragraph 1 and 2 of Article 138 of the same Code govern that a marriage transcription is made in the form of extract and according to the document proving the marriage. Should marriage proceedings have not been organized, they should be arranged according to Article 108 et seq prior to the transcription. Paragraph 1(d) of the previously mentioned Article also stipulates that the applicants, for their transcription proceedings, shall, at the same time, submit their prenuptial agreement, if any, and also the writ or the notarial certificate manifesting such agreement.
     Under Article 1567 of the Civil Code, approved by Decree Law 39/99/M of August 3rd, spouses are free to specify in their prenuptial agreement any type of the matrimonial regimes specified in the Civil Code or to stipulate a regime of their own as long as it is not contrary to the provisions thereof. However, due to the fact that the Complainant has a child with his ex-wife, he is confined by Article 1569(2) of the same Code, which sets out that should a marriage be celebrated by an individual who has a child with a person other than the current spouse, even if the child is an adult or emancipated, he is prevented from choosing marriage in the community of property and shall not include certain types of property as joint estate. On the other hand, Article 110 of the Civil Registration Code governed that when entering into another new marriage, depends on the case, the spouses must produce documents proving dissolution or annulment of the previous marriage through endorsements on birth certificate or through death certificate, or through a court decision or sentence. Moreover, birth certificate is one of the foundational documents that must be produced for marriage proceedings as required by Article 108(1)(a) of the Civil Registration Code.
    Given the above, amid the proceedings of the Complainant’s marriage transcription, for which the registrar will unavoidably handle rudimentary proving documents, including but not limited to prenuptial agreement, if any. These foundational documents aimed at the preparation and establishment of the marriage registration proceedings, and they are indispensable to verifying the spouses’ legal capacity to enter into a marriage. In addition, only when a marriage has fulfilled the lawful requirements of the Macao marital laws, it can be transcribed by Bureau A into the local civil status records. Article 113 of the Civil Registration Code also stipulates clearly that a registrar is obliged to verify the identity and marital capacity of the spouses, and to introduce necessary procedural measures, including but not limited to asking for information from the competent authorities and testimonial and supplementary documentary evidence from the spouses, and also convening meetings where the spouse, or their legal representatives, shall attend.
    Given the above, Bureau A was processing the Complainant’s personal data ex oficio, which complied the legitimate conditions laid down in Article 6(4) and 7(2)(1) of the PDPA. Given the above, the officer of Bureau A shall ensure whether the Complainant has any child with any individuals other than the subjects of the marriage transcription. In addition, since a former marriage shall limit the scope of a prenuptial agreement and the matrimonial regime to be adopted, and also has direct impact on the matrimonial property and the right to inheritance, the officer shall therefore inform the spouse of such facts. In respect of ensuring data processing security and confidentiality, Bureau A did not improperly reveal the Complainant’s personal data, in GPDP’s point of view, and therefore violations of Article 15 and 16 of the PDPA were not justified.

Result:

      The GPDP has already informed the Complainant and Bureau A of the investigation result and the current case is closed.

Reference:
Please refer to Article 3, 4, 6, 7, 15 and 16 of the PDPA.

Back

Avenida da Praia Grande, N.º 804, Edif. China Plaza, 17.º andar, Macau Tel:(853) 2871 6006 Fax:(853) 2871 6116