Chapter 19 Guidance on answering the exam questions

1. On what principles and for what purposes is a state entitled to regulate and restrict a person’s freedom to marry and to found a family compatibly with Article 12?

• This question requires a consideration of the extent to which the right to marry is an absolute right and the extent to which it can be restricted in relation to the provision “according to the national laws governing the exercise of this right”.
• Introduce the issue by considering the scope and nature of the right to marry. The text of Article 12 seems to compel a definition confined to heterosexual marriage and so does not place a duty on states to define marriage to include homosexual marriage.
• The “national laws” clause in Article 12 needs to be considered. It has been narrowly construed to be focused on laws which control the form of marriage. It does not justify regulating marriage to achieve social purposes (such as immigration control). Any restraints must not interfere with the essence of the right to marry (F v Switzerland).
• English cases such as Baiai indicate that, whilst immigration rules can be used to prevent sham marriages, such rules are to be narrowly construed to ensure that they do not prevent genuine marriages or seek to serve the purpose of immigration control more generally.

2. Why does the ECtHR refuse to introduce a positive duty on states to permit same-sex marriage?

The question engages with a controversial question. ‘Why’ could suggest a range of ‘types’ of answers, such as seeking sociological explanation. This answer will address the reasons given by the Court. It is also the case that many of the cases related to this issue involve Article 8 and the right to family life.

• Article 12 relates to ‘marriage’ – a legal relationship. The definition of marriage in Article 12 is relatively narrow (in contrast to the EU’s Charter and even to the idea of family life in Article 8 ECHR).
• In particular, the wording of Article 12 seems to confine marriage to the more conventional idea of a legal relationship between a man and a woman. This was stated to be the case in Rees v UK and confirmed by a Grand Chamber in Hämäläinen v Finland in 2014, under Article 8.
• To change this would require an exercise of the ‘living instrument’ doctrine. But this doctrine does not justify change simply based on the opinion of judges. It requires there to be a consensus amongst European states on the law relating to the matter. In 2014 no such consensus existed, and has not been discovered today (2021).
• The ECtHR still, therefore, grants states a wide margin of appreciation on the issue under Article 12 and 8.
• Nevertheless the law has developed and there is a positive obligation, rooted in Article 8, on states to provide for the possibility of a civil partnership or some other form of legal relationship between same-sex couples to be available.