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Article 12 European Convention on Human Rights - Right to Marry

 
 
Article 12
 
 
"Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right."
 
 
The right to marry is subject to the national laws and some limitations may be imposed with regards to publicity and solemnisation of marriage. In addition provisions relating to public interest may be imposed on such matters as capacity, consent, degree of infinity and prevention of bigamy.
 
 
F v Switzerland [1987] ECHR 32
 
 
 
An obligation to comply with legal formalities rather than religious rituals is not an interference with Art 12:
 
 
 
 
 
The right to marry implies a right to one man and one woman to marry. States can prohibit bigamous marriages:
 
 
Johnston v Ireland [1986] ECHR 17
 
 
Art 12 does not confer a right for same sex couples to marry:
 
 
 
 
Oliari v Italy [2015] ECHR 716
 
 
Initially, the right of a post operative transgender person to marry a person of the opposite sex was not protected by Art 12:
 
 
 
 
Cossey v UK [1990] ECHR 21
 
 
Rees v UK [1986] ECHR 11
 
 
This was reversed in:
 
 
Goodwin v UK [2002] ECHR 588
 
 
States can set age limits on marriage without infringing Art 12 even if religion permits a lower age:
 
 
Khan v UK [1986] ECHR
 
 
An annulment of a marriage due to the husband having previously been married to his wife's sister was disproportionate and therefore in breach of Art 12:
 
 
 
 
A bar on marriage between father in law and daughter in law was a breach of Art 12 rights:
 
 
B & L v UK [2005] ECHR 584
 
 
 
Mental capacity:
 
 
Delecolle v France [2018] ECHR 892
 
 
 
Lashin v Russia [2013] ECHR 282
 
 
 
States are entitled to legislate against marriages of convenience for immigration purposes, but the laws must be accessible and clear and not deprive a person the right to marry a person of their choice:
 
 
Frasik v Poland [2010] ECHR 4
 
 
Sanders v France [1996] ECHR 99
 
 
O' Donoghue v UK [2011] ECHR 2022
 
 
Prisoners rights:
 
 
Hamer v UK [1977] ECHR 2
 
 
Frasik v Poland [2010] ECHR 4
 
 
Jaremowicz v Poland [2010] ECHR 3
 
 
Draper v UK [1980] ECHR
 
 
 
Art 12 does not confer a right for married couples to live together:
 
 
 
 
 
Art 12 does not confer a right to divorce:
 
 
 
Johnston v Ireland [1986] ECHR 17
 
 
 

Right to found a family

 
 
 
The right to found a family under Art 12 only exists within marriage:
 
 
 
 
 
 
The ability to conceive is not a pre-requisite to the right to marry:
 
 
Goodwin v UK [2002] ECHR 588
 
 
There is no violation of Art 12 where a woman has an abortion under national law without the consent of her husband:
 
 
Boso v Italy 2002 ECHR 846
 
 
 
For prisoners right to access artificial insemination see:
 
 
Dickson v UK [2006] ECHR 430
 
 
 
 

Article 12 European Convention on Human Rights - Right to Marry