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...