Article 12: Right to marry

Posted by Sabina Frediani on 02 December 2011

While it might not be as immediately obvious as the right to life or the right to a fair trial, for instance, the right to marry is a hugely important freedom and one protected by Article 12 of the Human Rights Act.

It guarantees any man or woman in the UK of marriageable age the right to get married and the right to start a family, according to our national law. Article 12 doesn’t provide all the finer details; it just guards the wider fundamental right. So the nuts and bolts that actually give effect to Article 12 – rules on the marriageable age and issues of consent, for example – are left up to other pieces of domestic legislation in this country.

But Article 12 does dictate that any laws on marriage must not be arbitrary, and must not interfere with the basic essence of this right. Quite simply, nobody of full legal capacity should be denied the right to get married and that freedom must not be unfairly impaired without good reason. For example, a new rule imposing unnecessary delays on someone’s marriage – that has no other legitimate purpose – might well be a breach of Article 12.

This was illustrated back in 2004, when laws to prevent so-called “sham marriages” were introduced. These new rules, requiring people to seek special permission to marry in the UK, only applied to non-UK and non-European nationals subject to immigration control – and it didn’t even matter whether there was any suggestion the marriage in question was genuine or not. The House of Lords, citing Article 12, ruled that this blanket, discriminatory approach was a disproportionate interference with the right to marry.

Baroness Hale, in her judgment, pointed out that the act of marriage is deeply significant to many people and that to deny minority groups such a right was to deny that they are “free and equal” and amounted to ostracising them from the rest of society.