Right to marry and found a family

Though most of us may take the right to marry for granted, modern scientific and technological innovation has created additional complications to the general interpretation and meaning of this right. The issue of marriage has always been a subject of debate. It has found a place also in literary works like Alessandro Manzoni's I Promessi Sposi.

There are different ways of celebrating marriage throughout the world. In certain instances, parental consent may still be required in a number of states depending also on cultural, particularly religious background, not to mention situations around the globe where children, or rather teenagers, are already married at the age of, for example, 14.

The right to marry (be it in church or civilly) and found a family is impliedly protected by Section 32 (c) of our Constitution, which states that "every person in Malta is entitled to... respect for his private and family life". Article 12 of the European Conven-tion on Human Rights (ECHR), however expressly states that "men and women of marriageable age have the right to marry and to found a family, according to national laws governing the exercise of this right."

It is clear from the wording of the law cited above, that the right to marry and found a family is subject to a wide power on the part of states to regulate the exercise of these rights. The restriction of this right is also ensured by the interpretation of Article 12 by the European Court of Human Rights (ECtHR), which has hardly expanded its scope, notwithstanding its connection with Article 8 dealing with the right to a family life, a right which has already been dealt with by these newspaper articles.

The right to found a family is said to arise in the context of marriage. In fact, if an unmarried couple have children, their rights are protected by Article 8 not Article 12. Similarly, the question on the recognition of foreign marriages, whether of a different kind to national ones or not, generally arises under Article 8. The limitation on the reach of national law can act in fact in the applicant's favour in that it indicates that national laws may not go so far as to prohibit or exclude the right altogether. It is national law which fixes matters relating to form and capacity to marry, including impediments to marry, marriageable age requirements, prohibited degrees etc.

The state has no positive obligation to facilitate the celebration of marriages primarily because marriage is a consensual union between spouses. A state may foster marriages by, for instance, granting benefits to married couples which it denies to unmarried cohabitees. Similarly, there is no state obligation to provide the material conditions to make the right to marry effective. Were it so, such a duty would fall under Article 8 more than Article 12.

However, where there are collateral circumstances which prevent willing parties from entering into what otherwise would be a lawful marriage, the state may have a duty to mitigate or eliminate these obstacles. This happened, for example, in the UK where the 1949 Marriage Act did not allow prisoners to get married outside prison headquarters, and the prison authorities did not allow the applicants temporary release to be married outside the prison (Hamer v UK 1979, Draper v UK 1980).

As a result of these cases, the UK government introduced legislation to allow prisoners to marry in prison. In fact Marriage Act 1983 allows marriages in prisons, and permits marriages for some mental patients in their institutions and for house-bound persons at home. It must be noted that one of the government's arguments in the above cases was that there was no opportunity for cohabitation and consummation of the marriage. To this, the European Commission on Human Rights (ECmHR) held that:

"The essence of the right to marry ...is the formation of a legally binding association between a man and a woman. It is for them to decide whether or not they wish to enter an association in circumstances where they cannot cohabit."

Certain other issues have arisen before the Strasbourg authorities, as for example, the question whether marriage is limited to unions between a man and a woman. In other words, are relationships between a transsexual and another, and a homosexual and another, protected by the above-mentioned legal provision dealing with the right to marry and found a family.

The transsexual generally complains that a state which denies the transsexual the right to marry a person of the now opposite sex is inconsistent with the above cited quotation used for the Draper and Hamer cases, namely, that marriage is the association between a man and a woman. This notwithstanding, some states insist that the original gender of the transsexual survives whatever transformation surgery and medical treatment have taken place. Consequently, marriage is then denied on the basis that the proposed union is between two people of the same sex.

In Rees v UK 1986, the ECmHR was evenly divided on the reasons, though unanimous on the outcome, why the denial of the claim of a transsexual to the right to marry did not violate Article 12 ECHR. For half of the ECmHR, the denial of the change of status following transformation surgery was a violation of the right to a family life; once the state had repaired that violation, the applicant would have the new sex he/she sought. There would then be no impediment to the applicant marrying someone of the (now) opposite sex.

The rest of the ECmHR held that the substance of a marriage "includes the physical capacity to procreate" and that a state was, therefore, entitled to disqualify transsexuals from marrying. The outcome was confirmed by the ECtHR which held that "the right to marry guaranteed by Article 12 refers to the traditional marriage between persons of opposite biological sex. This appears also from the wording of the Article which makes it clear that Article 12 is mainly concerned to protect marriage as the basis of the family."

The Strasbourg authorities' general view is that homosexuals should not have the right to marry one another. However, occasionally, some judges have disagreed with this by writing dissenting opinions, as happened in W v UK where Judge Schermers opined that in the case of homosexuals, it would be the substance of the proposed union rather than the character of the participants in it which would decide whether it was a marriage or otherwise.

It is interesting to note in the context of local debate relating to the introduction of divorce in Malta, that although Article 16 of the Universal Declaration on Human Rights provides that parties to a marriage have equal rights "during marriage and its dissolution", there is no reference to the dissolution of marriage in Article 12 ECHR.

One notes that, after a thorough review of the travaux preparatoires, the ECmHR in Johnson v Ireland 1986 decided that the omission was deliberate, meaning that the drafting states did not intend the ECHR to grant a right to divorce. The ECtHR held that the prohibition on divorce in the Irish Constitution did not infringe the ECHR. This may be said in answer to local commentators who argue that the right to divorce is a human right and should be considered so by our domestic courts of law.

The rights of a spouse in our country are the right to file a case for separation (where the marriage and obligation of fidelity subsist) and/or annulment (wherein the validity of the marriage is being attacked). However our civil courts have the power not to grant both a judicial separation and an annulment if any of the grounds expressly stipulated in our laws (Civil Code and Marriage Act) is not satisfied. Additionally, our criminal courts have the authority to imprison a person for a term from thirteen months to four years if convicted of bigamy by virtue of Article 196 of the Criminal Code.

There is no doubt that the two parts of Article 12 are intricately linked and closely related. As to the right to found a family, at the outset it must be said that the major hurdles of this right are programmes of compulsory sterilisation or abortion.

Voluntary sterilisation or abortion by one partner to a marriage clearly has an impact on the interests of the other partner but, however serious this may be, it is highly improbable that the Strasbourg authorities would find a positive obligation on a state to regulate a private decision of the above kind, except in circumstances where some other right under the ECHR was more directly implicated, such as the right to family life in Article 8. States have the power to encourage legitimate families, but have no obligation to do so.

Adoption issues also fall under Article 12, however courts have so far been reluctant to permit the adoption of a child by a homosexual couple, since this might be against the best interest of the child, which is of primary importance. Moreover, though couples enjoy some rights, conditions may be imposed by national authorities and are subject to be tested by the Council of Europe machinery.

Similarly, the state is allowed to exercise sufficient discretionary power in relation to the controversial issue of artificial reproduction. States enjoy the power to decide whether and what techniques of artificial reproduction may be used, and to whom they should be accessible and available.

As the acceptability of certain scientific innovative methods which are closest to natural reproduction (such as in-vitro fertilisation) escalates, states may find that at some stage they will have to carry an increasingly heavy burden to explain why married persons may not be allowed to use the entire spectrum of artificial insemination methods, including the controversial cloning and genetic engineering procreational systems which will undoubtedly be the subject of landmark medico-legal battles of the future.