Article 12 Right to marry
Article 12 guarantees the right to marry to men and women of marriageable age and the right to found a family, according to UK laws.
It is left up to other pieces of our domestic law to provide the detail and substance that gives effect to this right. So for example, rules concerning the appropriate marriageable age; issues of capacity and consent; the prohibition on bigamy and incest etc., can be detailed in other legislation.
However, laws and rules on marriage must not be arbitrary and must not interfere with the essence of the right – they must not deprive a person or category of person of full legal capacity of the right to marry or substantially interfere with their exercise of the right. So, for example, laws that impose unnecessary delays or restrictions that serve no legitimate purpose may breach this right.
The Courts have held that the right to marry includes a right for transsexuals to marry. However, at the time of publication UK law does not provide for homosexual couples to marry.
In 2004 laws were introduced to prevent so-called ‘sham marriages’ among people who were subject to immigration control (except for those marrying in the Anglican church). However, the laws applied to all non-UK or European nationals subject to immigration control, regardless of whether there was any suggestion that the marriage was not genuine.
The House of Lords held that this blanket policy – applying as it did irrespective of questions regarding the genuineness of a proposed marriage – was discriminatory and a disproportionate interference with the right to marry.
As Baroness Hale said, marriage still has deep significance for many people, and denying to members of minority groups “the right to establish formal, legal relationships with the partners of their choice is one way of setting them apart from society, denying that they are ‘free and equal in dignity and rights’”.