European Convention on Human Rights

ECHR - Article 12: Marriage

Article 12 – marriage

Main article: Article 12 of the European Convention on Human Rights

Article 12 provides a right for women and men of marriageable age to marry and establish a family.

Despite a number of invitations, the Court has so far refused to apply the protections of this article to same-sex marriage. The Court has defended this on the grounds that the article was intended to apply only to different-sex marriage, and that a wide margin of appreciation must be granted to parties in this area.

In Goodwin v United Kingdom the Court ruled that a law which still classified post-operative transsexual persons under their pre-operative sex violated article 12 as it meant that transsexual persons were unable to marry individuals of their post-operative opposite sex. This reversed an earlier ruling in Rees v United Kingdom. This did not, however, alter the Court's understanding that Article 12 protects only different-sex couples.

The European Court of Human Rights ruled in Schalk and Kopf v Austria that countries are not required to provide marriage licenses for same-sex couples; however, if a country allows same-sex couple marriage it must be done under the same conditions that opposite-sex couples marriage face, in order to prevent a breach of article 14 – the prohibition of discrimination. Additionally, the court ruled in the 2015 case of Oliari and Others v Italy that states have a positive obligation to ensure there is a specific legal framework for the recognition and protection of same-sex couples.