Article 12 /
Right to marry
As long as we’re legally old enough, we have the right to marry whoever we want and to raise a family.
Everyone who is old enough – no matter who they are or where they’re from – has the right to get married. This right is written into UK law.
However the details relating to this right are left to other pieces of legislation. For example, rules about who is old enough to be of ‘marriageable age’ are set out elsewhere.
The same goes for rules around capacity and consent, as well as issues of bigamy, incest and other areas relating to what makes a marriage legal – or not.
While there may be many rules around marriage, they do have to serve a purpose and must not interfere with the essence of the right itself. That means the rules shouldn’t actually stop anyone (or any group of people) from getting married if they are able and willing.
So laws making some people jump through needless hoops before they can married, or restrictions that serve no real purpose, may breach this right.
Same-sex marriage is now legal in the UK under the Marriage (Same Sex Couples) Act 2013.
The Courts have also held that Article 12 includes a right for transgender people to marry. However to get married in the gender they identify with, trans people need to have a Gender Recognition Certificate, which can be hard for some people to obtain.
Article 12 in action
Sham marriage case
In 2004, laws were introduced to prevent so-called ‘sham marriages’.
They applied to everyone subject to immigration control (except those getting married in the Anglican church, who were exempt).
The main problem was that the laws were applied to all non-UK or European nationals subject to immigration control – even if there was no suggestion that the marriage was a ‘sham’.
In light of this, the House of Lords announced that this blanket policy was discriminatory and needlessly interfered with the right to marry.
As Baroness Hale said, marriage still has deep significance for many people – and denying to members of minority groups “the right to establish formal, legal relationships with the partners of their choice is one way of setting them apart from society, denying that they are ‘free and equal in dignity and rights’”.
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