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How Does English Law Give Effect To The Right To Marry And Found A Family As Guaranteed By Article 12 Of The European Convention On Human Rights?

1816 words - 7 pages

How Does English Law Give Effect to the Right to Marry and Found a Family as Guaranteed by Article 12 of the European Convention on Human Rights?Article 12 states 'Men and women of marriageable age have the right to marry and found a family, according to the national laws governing the existence of this right'. The European Court held that there is no one European-wide view of what marriage is and so each country is given a margin of 'appreciation' to decide how it understands marriage. Therefore, if taken literally, this article seems to give English law the power to determine and limit marriage. However, the decisions made by English courts have been challenged on many occasions, successfully and unsuccessfully. The scope of this qualification is unclear. It is evident that the exercise of the rights guaranteed cannot be wholly governed by English law. In that case the protection of Article 12 would extend only to cases where there was a breach of English law. But the primary purpose of the convention is 'to guarantee certain human rights irrespective of the provisions of national law'. In the past the UK has had quite poor record before the European Court of Human Rights, largely because the Convention was not part of UK law until the passing of the Human Rights Act 1998.By applying article 12 the European court has to balance the rights of the individual against the public interest. For example the right to marry cannot be considered simply as a form of religious practice because it is regulated by article 12 of the convention, which leaves the national requirements to be stipulated by domestic law. Thus, the refusal of permission under English law for a Muslim man to marry a 14-year old Muslim girl, as permitted by the man's religion (Islamic Law), could not be said to have violated his right to marry. Article 12 also protects couples from interference with their right to found a family. As with marriage, Article 12 does not create a right for couples of the same sex to adopt children, if national law prohibits this. In addition, it does not give entitlement for a male to female transsexual to be registered as the father of a child conceived by artificial insemination and this is illustrated in the case of X, Y and Z v United Kingdom.English law has not always been successful in giving effect to the right guaranteed under article 12. An example of UK violating article 12 can be illustrated in two particular cases which involved the restriction on prisoners to be married in prison. In these cases the term of imprisonment was such that the exercise of the right to marry would be delayed a considerable time. 'Personal liberty was not a precondition to the exercise of the right and no particular difficulties were envisaged in allowing prisoners to marry'. In its Report the commission said: "In the Commission's opinion national law may not otherwise deprive a person or category of persons of full legal capacity. Nor may it substantially interfere...

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