EHRM-Hof veroordeelt Groot-Brittannië wegens verbod op huwelijk tussen vrouw en haar schoonvader (en)

The European Court of Human Rights has today notified in writing a judgment [1] in the case of B. and L. v. the United Kingdom (application no. 36536/02).

The Court held unanimously that there had been a violation of Article 12 (right to marry) of the European Convention on Human Rights.

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants 17,000 euros (EUR) for costs and expenses. (The judgment is available only in English.)

• 1. 

  Principal facts

The applicants, B and L, are British nationals who were born in 1947 and 1968 respectively and live in Warrington.

The first applicant, B, married A and that marriage ended in divorce in 1987. B and A had a son together, C. The first applicant subsequently re-married, but that marriage ended in divorce in July 1997.

The second applicant, L, married C, the first applicant's son from his first marriage. The first applicant and the second applicant were therefore father-in-law and daughter-in-law. The second applicant and C separated in 1995 and their divorce was finalised in May 1997. The second applicant and C have a son together, W. The first applicant is, therefore, W's grandfather.

A relationship developed between the first and second applicants in 1995 after C had left the second applicant's matrimonial home. The applicants have been cohabiting since 1996. W lives with the applicants and only has sporadic contact with his father, C. W now calls the first applicant "Dad". The applicants plan to adopt W which is permitted by domestic adoption law.

In May 2002, the first applicant wrote to the Superintendent Registrar of Deaths and Marriages at Warrington Register Office to inquire about whether he could marry the second applicant. The Superintendent Registrar replied that under the relevant domestic legislation, it would be impossible for the applicants to marry unless A and C were both dead.

The applicants subsequently sought legal advice on whether there was any remedy against the decision of the Superintendent Registrar but were advised by counsel that no remedy existed since the basis for the decision was primary legislation, namely, the Marriage Act 1949 as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986.

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 30 September 2002 and declared admissible on 29 June 2004.

Judgment was given by a Chamber of 7 judges, composed as follows:

Josep Casadevall (Andorran), President,

Nicolas Bratza (British),

Giovanni Bonello (Maltese),

Rait Maruste (Estonian),

Stanislav Pavlovschi (Moldovan),

Lech Garlicki (Polish),

Javier Borrego Borrego (Spanish), judges,

and also Michael O'Boyle, Section Registrar.

• 3. 

  Summary of the judgment [2]

Complaint

The applicants complained, under Articles 12 (right to marry) and 14 (prohibition of discrimination) of the European Convention on Human Rights, that they were prohibited from marrying each other.

Decision of the Court

Article 12

The European Court of Human Rights noted that the limitations imposed on the right of a man and woman to marry and to found a family must not be so severe as to impair the very essence of that right.

The bar on the marriage between parents-in-law and children-in-law meant that B and L were unable to obtain legal and social recognition of their relationship. The fact that, hypothetically, the marriage could take place if both their former spouses died, did not remove that impairment. The same applied to the possibility of applying to Parliament as that was an exceptional and costly procedure, totally at the discretion of the legislative body and not subject to discernable rules or precedent.

The Court observed that the bar on marriage, although pursuing a legitimate aim in protecting the integrity of the family, did not prevent such relationships occurring. Furthermore, since no incest, or other criminal law provisions prevented extra-marital relationships between parents-in-law and children-in-law, it could not be said that the ban on the applicants' marriage prevented the second applicant's son from being exposed to any alleged confusion or emotional insecurity.

It referred in addition to a previous case, similar to that of the applicants, where the United Kingdom Parliament had found that barring the marriage served no useful purpose of public policy. The Court considered that the inconsistency between the stated aims of the incapacity and the waiver applied in some cases undermined the rationality and logic of the law in question.

As to the Parliamentary procedure ensuring that exceptions were made when no harm would ensue, the Court commented that there was no indication that any provisions were made for detailed investigations into family circumstances. In any event, such a cumbersome and expensive vetting process did not appear to offer a practically accessible or effective way for individuals to vindicate their rights. Furthermore, a system that would require a person of full age in possession of his or her mental faculties to submit to a potentially intrusive investigation to ascertain whether it is suitable for them to marry would be viewed with reservation by the Court.

The Court concluded that there had been, in the circumstances of this case, a violation of Article 12 of the Convention.

Article 14

Given its finding of a violation of Article 12 above, the Court found no separate issue arising under Article 14 of the Convention in conjunction with Article 12.

***

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court's judgments. More detailed information about the Court and its activities can be found on its Internet site.

[1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

[2] This summary by the Registry does not bind the Court.