The right to marry and to found a family under Article 12 of the Convention for the Protection of Human Rights and Fundamental Freedoms

Abstract

Article 12 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter the ‘Convention’) has been dealt with in several judgements of the European Court of Human Rights (hereinafter the ‘ECtHR’). It is true to say that the Court has been influenced by what happened in the contracting states. The Court has indeed taken a more liberal approach in the last two decades in interpreting Article 12 although not to the extent of the progressive approach being taken by the national laws of many western European countries. This thesis provides an overview of the judgments of the ECtHR indicating the changes which were made by the ECtHR in the interpretation of Article 12. The judgements deal, for instance, with the question as to whether the right to marry and found a family is one and the same right or whether they are two separate rights. The ECtHR has progressed from the former interpretation to the latter one. Naturally this interpretation has its consequences in that, for instance, a family may be founded even if the couple is not married. An analysis is also made as to what extent has the ECtHR applied Article 12 to non-traditional family units, such as transsexuals and same-sex couples. The protection given under Article 12 of the Convention is compared to those Articles of the Constitution of Malta which relate to the protection of family life as well as to marriage, in particular Article 32 (c) and Article 45(4) (c) of the Constitution respectively. Article 12 is enforceable in Malta on the basis of the European Convention Act (Chapter 319 of the Revised Laws of Malta), which is ordinary law. Consideration is also given to the developments under English law and Italian law relating to the right to marry and found a family. In Italy, for instance, it was a leading case before the ECtHR which exerted pressure on the legislator to promulgate a law recognising same-sex relationships through a civil union. A study is also made of the national laws of Italy, Malta and the United Kingdom adopting civil unions/registered partnerships or marriages between same-sex couples. In conclusion, this thesis makes recommendations so that Article 12 and other related Articles of the Convention are incorporated in the Constitution of Malta. Thus, protection of the right to marry, respect to family life and non-discrimination on the basis of sexual orientation would be based on supreme law and not just ordinary law.