City Research Online

ECHR: Right to marry

Draghici, C. (2015). ECHR: Right to marry. Insight,


The right to marry is guaranteed under the European Convention on Human Rights ECHR)in art.12, which reads: "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". This provision was given effect in the UK through the enactment of the Human Rights Act 1998, which incorporated ECHR rights, allowing domestic litigants to rely on them before the British courts. The express referral to "national laws" in art.12 indicates that States may legitimately impose restrictions on the exercise of this right, such as bars on marriage between persons who fall within the prohibited degrees of a relationship, a minimum marriageable age, and the requirement to comply with certain formalities for the valid celebration of marriages. The Convention institutions maintain, nevertheless, the power to scrutinise any such restrictions, and ensure that domestic law strikes a fair balance between the prevention of objectionable marriages and the protection of individual rights against social prejudice. Controversial issues in this area include same-sex marriage, polygamous, underage and religious marriage within ethnic minority communities, transsexuals' right to marry according to the newly acquired gender, the suspension of the exercise of the right in circumstances involving deprivation of liberty, the right to re-marry, and the right to divorce and re-acquire the capacity to marry.

Publication Type: Article
Additional Information: Draghici, C., ECHR: Right to Marry, Insight, 2015, Westlaw UK, reproduced with permission of THOMSON REUTERS (PROFESSIONAL) UK LIMITED. This extract is taken from the author's original manuscript and has not been edited. The definitive, published, version of record is available here:
Subjects: K Law > KD England and Wales
Departments: The City Law School
The City Law School > International Law and Affairs Group
The City Law School > Institute for the Study of European Laws
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