Marriage and family life in the jurisprudence of the European Court of Human Rights

• Author: Oana Ghita
• Position: Faculty of Law and Social Sciences, Law Department, University of Craiova, Craiova, Romania
• Pages: 58-63

AGORA International Journal of Juridical Sciences, www. juridicaljournal.univagora.ro

ISSN 1843-570X, E-ISSN 2067-7677

No. 4 (2014), pp. 58-63

58

MARRIAGE AND FAMILY LIFE IN THE JURISPRUDENCE OF

THE EUROPEAN COURT OF HUMAN RIGHTS

O. Ghi

Oana Ghi

Faculty of Law and Social Sciences, Law Department

University of Craiova, Craiova, Romania

Correspondence: Oana Ghi, University of Craiova, Faculty of Law and Social Sciences,

107 D Calea Bucuresti St., Craiova Romania

E-mail: ghita.oana@gmail.com

Abstract

The article 8 and 12 – European Convention of Human Rights regulate the right to

family and private life and, respectively, the right to marriage. These rights have been

transposed into the national legislation of the States-members of European Union. The two

rights that we are speaking of, which can be found as a constitutional principle and as an

ordinary law, tries to reduce the public authorities interference into the private and personal

family field. The reality proves that the right to marriage has been broken by the impossibility

of the spouses to marry because they can not be divorced. This is the reason why we have two

different rights in European Convention: the right to private, family life and the right to

marriage.

Many European states still have a limited regulation of the reasons for getting the

dissolution of marriage. The European Convention has nothing to do with such cases because

does not regulates the right to divorce and it would be an interference into the national law.

How can a person be married again if he/she doesn’t have the possibility to divorce? In these

conditions, can we take the European Convention into consideration as a real instrument of

protection for the right to marriage?

The first precedent of ECHR jurisprudences limits the infringement of the right to

marriage made by the national Courts because of the lack of regulations or a bad

interpretation of it.

Keywords:ECHR, right to marriage, family life, divorce, separation of the

spouses.

Introduction

From the multitude of laws guaranteeing the right to private and family life and the

right to marriage we turn our attention to Articles 8 and 12 of the European Convention on

Human Rights.

The way in which these legal texts create the necessary levers of the rights considered

here must be subordinated to the incapability of EU rules to interfere with national laws,

especially in a matter so fraught with personal and private aspects. Moreover, we believe that

these rights are extremely difficult to break into the national legal maze, being a corollary of

the principles established in the field of family relationships which are loaded with tradition,

morality, religion and social aspects.

1

Standardization of such rules, even when tested by

numerous projects in Europe, was not successful, given the opposition from the content of

legal texts from national legal systems.

The Scope of Articles 8 and 12 of the European Court of Human Rights

1

Ioana Nicolae, Instituii ale dreptului familiei, Hamangiu Publishing House, Bucharest, 2009, p. 142 and the

others.