The right to marry : a comparative study outlining varied international legislation on the inviolable right to marriage

Abstract

In this thesis the concept of marriage is explored alongside that of the family and human rights. Marriage legal protection made a path in history. Marriage comes with several restrictions among which we find those of sex and age. A juridical definition of sex is difficult to find. The carnal aspect of marriage is regulated in all States since the State is interested in controlling marriage. Traditional marriage is bombarded by new lobbies of homosexual and transsexual marriage. Slowly traditional marriage is being shaken. For example, till date we find legal same-sex marriage in the Netherlands and registered and domestic partnerships in several States. Restrictions regarding age are compulsory all over the world despite of their diversity. Capacity to marry includes not only age requirements, but also legal capacity which certain adults do not hav:e due to causes such as mental incapacity. The State has the interest of regulating marriage as an institution through legislation. Among its rules the State delves into consent and intention to marry too. Hence, the State conditions marriage prior, during and after the celebration of marriage. In this thesis the diversity of marriage impediments is discussed. The focus is mainly on absolute, relative and temporary impediments. The issue of marriage of a PW A is discussed in depth as legislation regulating this is sparsely found. Marriage is a social institution which should be meritoriously regulated in the interest of society in general. Marriage is an institution regulated by strict rules regarding bigamy and polygamy. Due to the diversity of culture and mingling of multi-cultural persons problems arise. This could lead to the State or a cultural practice to be put in a strait. Finally, the issue of divorce is discussed. The emphasis is on the fact that divorce is not a right recognised in the European Convention of Human Rights. Moreover, the right to marry of foreigners and certain European immigration policies are studied. Marriage is a means to attain certain privileges for foreigners such as freedom of movement. Thus the State checks whether the motive of marriage is a real one or a disguised one. Stringent rules in several States make marriage for such purposes difficult. Aiso prisoners are sometimes considered as foreigners to society and denied the right to marriage. Illegal restrictions are unjustly imposed due to race, nationality and religion. Other restrictions are imposed on persons by conditions of celibacy and widowhood. Finally, cohabitation is discussed as an alternative to marriage. Issues arising from it such as illegitimacy and private agreements are discussed as well.