Article 12

Article 12 | Right to marry / found family

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Article 12 of the European Convention on Human Rights provides:

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.

There are therefore two constituent rights, marriage and founding a family, which have been explored and developed in the case law. Because Article 8 has proved such a reliable source for claims relating to family, relationships and home the jurisprudence on Article 12 itself is fairly thin. However it has been invoked in challenges to the government’s efforts to prevent sham marriage as a way of evading immigration controls. The Strasbourg Court has recognised that countries are entitled to restrict the rights of third party-nationals to marry in such circumstances: O’Donoghue v United Kingdom, 2010.

According to Karen Reid, the Strasbourg court takes a conservative view of Article 12: “the right to marry guaranteed by Art.12 refers to the traditional marriage between persons of opposite biological sex, which interpretation is supported by reference to to the founding of a family” (A Practitioner’s Guide to The European Convention of Human Rights, Sweet & Maxwell 2015, 5th edition). In the relatively recent case of Schalk and Kopf v Austria, Application no. 30141/04, 25 June 2010, the Court observed that the choice of wording “men and women” instead of “everyone” meant that the Article must be regarded as deliberate and seen in the context of the 1950s as marriage in the traditional sense.

But in the UK the position is different. Until recently English law has permitted civil partnerships for same-sex couples but prevented them from marrying.  But the campaign to allow civil partnerships to be registered in religious institutions and the legal challenge to UK law has led to the recognition of same-sex marriage, enshrined in the Marriage (Same Sex Couples) Act 2013.

The “founding a family” limb of Article 12 does not create a right to access to reproductive technologies or adoption. This involves issues of resource allocation and costs which are usually outside the purview of the Convention, although there may be an argument based on the prohibition on discrimination under Article 14 if such treatment is arbitrarily allocated.

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