Christmas Rights – Article 12 Right to Marry

Article 12 affords us all the right to make sure everyone knows that we’re in love, by spending a ton of money on a wedding and watching your Dad fall asleep in the corner of the dancefloor, with his tie wrapped around his head:

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

What does this mean?

Unlike previous rights and freedoms considered, there’s not too much to be confused about with this right. In the UK if you are of marriageable age, you can get hitched and start a family. There are no exceptions, except the restrictions prescribed by law such as who you can marry or how many people you can marry at one time.

What are these restrictions? Well legally in the UK, you have to be 16 years old to get married according to the innovatively named Ages of Marriage Act 1929. Unsurprisingly considering marriage is a bond between two people, promising themselves to each other for a lifetime, marrying more than one person in the UK is illegal. Described as ‘bigamy’, it is an offence under section 57 of the Offences Against the Persons Act 1861.

As you can probably tell from the dates of these laws, not much has changed in terms of marriage in the past 100 years or so and the meaning of marriage has remained much the same. However, one thing that has changed, is the law on marriage now found in the Marriage (Same Sex Couples) Act 2013 and I’ll give you two guesses to work out what it is about.

 Historically marriage could only take place between a man and a woman, but as time has progressed and Brian Blessed continues to be apparently immortal, attitudes have changed and we have now finally reached a point where this sign of love is not attached to gender-specifics. Common law or case law has long prohibited same sex marriage. Cases such as Hyde v Hyde and Talbot v Talbot void marriages between same-sex couples because (as Lord Penzance put it at the time):

Marriage as understood in Christendom is the voluntary union of one man and one woman, to the exclusion of all others”.

Although Hyde v Hyde was a case from the 19th century, Talbot v Talbot was decided in 1967 – i.e. your parents were probably born and potentially even smoking your grandparent’s cigarettes on the sly, whilst people of the same-sex were not allowed to be married. Not only that, any ‘homosexual acts’ at the time were in fact illegal until 1967. Whether that included ordering a colourful cocktail without fear of mockery I’m not sure, but the way things were back then, it wouldn’t surprise me.  A judge named Lord Wolfenden did actually provide a report in 1957 recommending that homosexuality was legalised, however it took 10 years for people to get their heads around the idea (potentially due to the copious amounts of drugs that were circling at the time), eventually decriminalising it in the Sexual Offences Act 1967.

Even then the battle wasn’t over. The age of consent was set at 21 for homosexuals, whilst it was 16 for heterosexuals. There were still (and unfortunately still are) negative responses to homosexuals and progress towards equality has been slowed by that. Ministers and the like analysing each minute detail with incredible precision, to ensure that by saying they were okay with gays, they wouldn’t automatically start finding those of the same-sex attractive.

However, now homosexuals have the right to marry exactly as heterosexuals do, emphasising the positive effects of human rights. This has obviously worked in partnership with the anti-discrimination principle (analysed on Thursday) and has led us to a position where homosexual people in terms of marriage have the exact same rights as heterosexuals. A great feat considering less than 50 years ago it was still illegal to be homosexual (as if it was a choice). There is still some way to go in ensuring homosexuals are treated equally to heterosexuals, but we are on our way!

How is it applied?

Article 12 represents an uncontroversial right in the UK. Marriage has long been a tradition in British history and now the law has been changed to allow homosexual people to marry also, the area is quite settled and well governed. Not only that, but if you read back the article, it guarantees the right to founding a family too, which has seen its jurisprudence absorbed by Article 8 and the right to a family life.

It has been used to stop the government attempting to restrict sham marriages, for immigration reasons for example. In O’Donoghue & Others v United Kingdom, the European Court of Human Rights slammed the UK government’s methods of preventing sham marriages as an infringement to Article 12, which they duly had to change.

Other than this, the area is fairly uncontroversial and boring in terms of juicy infringement cases now. Why does everyone have to be so happy in letting others be happy right?

So, there’s your short, sweet and tongue in cheek analysis of the right to marry and its settled law at present. Speak to you all tomorrow for the last of the series!

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