Hudoc Judgment (Merits and just satisfaction) Violation of Art. 12; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention proceedings
A Swiss law placed limitations on the remarriage of someone who had been the guilty party in previous divorce proceedings.
Held: The Court explained that the closing words in Article 12 (‘according to the national laws governing the exercise of this right’ ) confer only a limited power on states. In all the Council of Europe’s member States, these ‘limitations’ appear as conditions and are embodied in procedural or substantive rules. The former relate mainly to publicity and the solemnisation of marriage, while the latter relate primarily to capacity, consent and certain impediments’. The court recognized that the national law sought to promote stability in marriage, but ‘the disputed measure, which affected the very essence of the right to marry, was disproportionate to the legitimate aim pursued.’ National laws: ‘must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired.
In all the Council of Europe’s member States, these ‘limitations’ appear as conditions and are embodied in procedural or substantive rules. The former relate mainly to publicity and the solemnisation of marriage, while the latter relate primarily to capacity, consent and certain impediments.’
Citations:
(1987) 10 EHRR 411, 11329/85, [1987] ECHR 32
Links:
Statutes:
European Convention on Human Rights 12
Cited by:
Cited – B And L v The United Kingdom ECHR 13-Sep-2005
The claimants said that UK law was inconsistent in its treatment of marriage between in-laws, since it provided that it was available only by means of a private Act of parliament.
Held: The provision was irrational and infringed the human . .
Cited – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – Secretary of State for the Home Department v Baiai and others CA 23-May-2007
The claimants challenged rules which meant that certain immigrants subject to immigration control were unable to marry, save only those marrying according to the rites of the Church of England.
Held: The rules were not justified by evidence . .
Cited – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Family
Updated: 04 June 2022; Ref: scu.165008
