The right to marry and found a family is protected by Article 12 of the Human Rights Act.

How might this right be relevant to my life? 

This right protects our right to marry - if we are of marriageable age - and the right to start a family.

  • Other UK laws set out the rules around marriage. For example:
    • at what age we can marry,
    • issues of capacity and consent
    • you cannot be married to more than one person at the same time.
  • The laws around marriage must serve a purpose and cannot be arbitrary.

  • Although this right protects your right to start a family, it does not mean that you necessarily have the right to access reproductive technologies or adoption.

  • The Marriage (Same Sex Couples) Act 2013 means that same sex marriage is legal in England and Wales. This applies in Scotland under the Marriage and Civil Partnership (Scotland) Act 2014 and also in Northern Ireland under the Marriage and Civil Partnership (Northern Ireland) Regulations 2020.

  • The Gender Recognition Act 2004 now allows trans people to obtain legal recognition of their gender, and once they have done that, to get married.

Can my right to marry and found a family be restricted by a public official?

Yes

This is a non-absolute right which means it can be limited or restricted in certain circumstances. For example, the government can restrict this right based on national laws around marriage, for example, at what age we can marry.

But, like all other non-absolute rights, if the government (or any public official) is going to limit the right to marry, the restriction has to be:

Lawful

There must be a law which allows public officials to take that action or decision.

Legitimate

The restriction has to be for a reason set out in the law. Restrictions could be imposed on this right in the interests of public safety, to prevent crime, to protect health or morals, or to protect the rights of others.

Proportionate

The government or public body has to have thought about other things they could do, but there is no other way to protect you or other people. In other words, it must be the least restrictive option. This means that blanket, automatic restrictions that apply regardless of individual circumstances will be in breach of the right to marry and found a family.

 

What duties do public officials have?

To respect your right: 

This means public officials (including the government) should not interfere with the right to marry and found a family, unless it is necessary, and they can show that this is the case.

To protect your right: 

This means that the government and people working in public bodies should take ‘reasonable and appropriate’ measures to promote our right to marry and found a family.

To fulfil your right: 

When things go wrong, regarding the right to marry and found a family, there should be an investigation and steps should be taken to try and stop the same thing happening again.

Respecting the right of a man in a mental health hospital to marry

Ishmael and his partner Eve had decided that they would like to get married. However, Ishmael was a long-term patient at a mental health hospital, and his consultant was not sure whether the marriage should be allowed as Ishmael’s mental health issues may have impacted his decision-making.

Having received support on using human rights from BIHR, staff at the hospital did not jump to conclusions about what was best for Ishmael based on his mental health issues. The consultant and care team decided to approach the issue by reflecting on how his human rights might be affected by their decision. They recognised that not allowing to Ishmael to get married might have a negative impact on his right to marry and found a family (as well as his right to respect for private and family life), and that under the Human Rights Act staff have a duty to respect and protect Ishmael’s human rights. Making sure they were considering Ishmael’s human rights, staff felt better equipped to move away from a model of decision-making that focused solely on risk and harm avoidance, towards a model that included potential for the people in their care to lead full and flourishing lives.

Staff decided to take every step that they could in supporting Ishmael and Eve to marry.  (This is a real-life example from BIHR's work)

 

Respecting the right of a man with a brain injury to marry

Simon is 28-year-old man with a brain injury who wanted to get married to his girlfriend of 3 years. The Court of Protection was asked to decide if he had the mental capacity to make the decision.

Simon is very wealthy, following a large compensation payment after he lost a leg whilst working as a refuse collector. His estate is managed by a Simon’s court appointed Deputy. The Deputy asked the Court to make a decision about Simon’s capacity to marry as this decision could have financial consequences if he was to get divorced.

In his ruling, the judge said that the right to marry is a fundamental right which is protected by human rights law although there are some restrictions around this. He explained that previous caselaw shows that capacity to enter into marriage does not require a high level of understanding.

When considering Simon’s capacity to marry the judge thought about the following:

  1. The wisdom of entering into a marriage is irrelevant
  2. Simon must understand the duties and responsibility associated with marriage
  3. Simon must have capacity to consent to sexual relations.

Regarding a potential divorce the judge said that Simon did not need to understand the full financial laws and procedures involved in divorce. The important thing was that Simon understood that a risk of divorce could be a potential financial claim. The judge decided that Simon understood this.

The judge ruled that Simon had the capacity to marry. He did note however that if there was a divorce, a financial claim was likely to be limited as Simon’s wealth came from a personal injury award.

(This is a legal case: Mundell v Name1, 2019)

 

Recognising the right of trans people to marry

Christine, a trans woman, was unable to marry because of the UK's laws on gender recognition (or lack of). At the time, there was no provision for trans people to have their legal gender changed or recognised in UK law. Christine thought this was a violation of her right to marry (as well as her right to family life and to be free from discrimination), so she took a human rights case to court. 

The court agreed and ruled that Christine's right to marry and found a family, and her right to family life, had been unjustifiably infringed. This led to a change in UK law. The Gender Recognition Act 2004 now allows trans people to obtain legal recognition of their gender, and once they have done that, to get married.

(This is a legal case, Goodwin v UK, 2002, which went to the European Court of Human Rights)