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Article 12: Right to Marry and Found a Family
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 and found a family is subject to national laws governing how the right is exercised, but not whether the right exists. A breach of Art 12 was found in Hamer v UK (1979), a case concerning the right of prisoners to marry. Although there was no law expressly prohibiting prisoners from marrying, where the law provided that prisoners could not marry inside prison and were not allowed to be released on licence to marry, the effect was that prisoners were unable to marry at all. The ECHR found that the national laws therefore destroyed the substance of the Article 12 right and held that the prisoners' rights under Art 12 had been breached.
At the moment, the right to marry only applies to men and women of marriageable age, it does not extend to same-sex couples. In 2002 the ECHR decided that by not allowing transgender people to marry in their new gender the UK had breached their rights under Article 12 (Goodwin v UK 2002).
Whether the term ‘family’ has the wider meaning attributed to the term in Article 8 is unclear but it is clear that the right to found a family refers to the right to have children. The right to start a family may only apply to people who are married. If it does, people who are not married will have to rely on the right to respect for family life under Article 8 to argue for their right to have children. However, in a case concerning the refusal by national authorities to allow an applicant to adopt an abandoned child he had looked after for several years, it was held that it was the existence of a couple that was essential, casting some doubt on whether the right to found a family applies to married people only.
Once a family has been ‘founded’, issues relating to the relationship between the child and parent will fall within Article 8 – the right to respect for family life, rather than Article 12.
It is unlikely that Article 12 guarantees the right to found a family by medically assisted means, but the matter has not yet been considered by the ECHR. It may be that the ECHR would allow the national authorities a wide margin of appreciation in such a case to determine for themselves whether the right to found a family would include such procedures.
Although Article 12 does not refer to the right to adopt, once again, it is likely that the ECHR would permit national authorities a wide margin of appreciation in determining whether the concept of ‘family’ would include adoptive as well as natural children.
Relevant Sections
The right to marry and found a family is subject to national laws governing how the right is exercised, but not whether the right exists. A breach of Art 12 was found in Hamer v UK (1979), a case concerning the right of prisoners to marry. Although there was no law expressly prohibiting prisoners from marrying, where the law provided that prisoners could not marry inside prison and were not allowed to be released on licence to marry, the effect was that prisoners were unable to marry at all. The ECHR found that the national laws therefore destroyed the substance of the Article 12 right and held that the prisoners' rights under Art 12 had been breached.
At the moment, the right to marry only applies to men and women of marriageable age, it does not extend to same-sex couples. In 2002 the ECHR decided that by not allowing transgender people to marry in their new gender the UK had breached their rights under Article 12 (Goodwin v UK 2002).
Whether the term ‘family’ has the wider meaning attributed to the term in Article 8 is unclear but it is clear that the right to found a family refers to the right to have children. The right to start a family may only apply to people who are married. If it does, people who are not married will have to rely on the right to respect for family life under Article 8 to argue for their right to have children. However, in a case concerning the refusal by national authorities to allow an applicant to adopt an abandoned child he had looked after for several years, it was held that it was the existence of a couple that was essential, casting some doubt on whether the right to found a family applies to married people only.
Once a family has been ‘founded’, issues relating to the relationship between the child and parent will fall within Article 8 – the right to respect for family life, rather than Article 12.
It is unlikely that Article 12 guarantees the right to found a family by medically assisted means, but the matter has not yet been considered by the ECHR. It may be that the ECHR would allow the national authorities a wide margin of appreciation in such a case to determine for themselves whether the right to found a family would include such procedures.
Although Article 12 does not refer to the right to adopt, once again, it is likely that the ECHR would permit national authorities a wide margin of appreciation in determining whether the concept of ‘family’ would include adoptive as well as natural children.
Relevant Sections
