The key cases related to the possibility to obtain a divorce and remarry are two relatively old cases from the Republic of Ireland,Airey v. Ireland from 197948 and Johnston and others v. Ireland from 198649. A constitutional ban on divorce was introduced in Ireland in 1937, and the ban was lifted in 1997 following a referendum on the matter in 1995 (Burley and Regan 2002). The judgements given in these cases did not grant a human right to divorce as such.
From a contemporary perspective, it is indeed interesting that a human right to marry has been seen as a key civil and political right and can be read from e.g. the Universal Declaration of Human Rights (Article 16) and the European Convention (Article 12), but to this day a right to get out of a marriage has not been recognised.
InAirey v. Ireland Mrs. Airey, a married woman with four children and of a “humble family background”50, had tried to obtain a decree of judicial separation from her husband, who had been convicted of assaulting her. As divorce was not possible in Ireland at the time, a decree of judicial separation was the best option available for leading separate lives in the situation of marital breakdown. During her process in the European Court, she had applied for annulment of her marriage from an ecclesiastical tribunal as well.51 Due to her financial situation, Mrs. Airey could not afford the High Court proceedings to obtain such a decree, and she did not get legal aid either, as it
47Staiku v. Greece, no. 35426/97, Commission decision of 2 July 1997.
48Airey v. Ireland, no. 6289/73, 9 October 1979, Series A no. 32.
49Johnston and others v. Ireland, no. 9697/82, 18 December 1986, Series A no. 112.
50Airey v. Ireland, para 8.
51Airey v. Ireland, paras 8-9.
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was not provided for judicial separation or other civil matters52. Thus, her right to try to obtain a decree of judicial separation due to physical and mental cruelty from her husband, one of the accepted grounds for judicial separation, was not realistic as she could not afford the proceedings.
TheAirey case was technically most concerned with Article 6, the right to access to court, but Article 8 was evoked, too. A violation of both rights was found, so the lack of access to court for separation proceedings was seen as a right pertaining to private and family life even in the absence of divorce. The European Court argued inAirey:
In Ireland, many aspects of private or family life are regulated by law.
As regards marriage, husband and wife are in principle under a duty to cohabit but are entitled, in certain cases, to petition for a decree of judicial separation; this amounts to recognition of the fact that the protection of their private or family life may sometimes necessitate their being relieved from the duty to live together. Effective respect for private or family life obliges Ireland to make this means of protection effectively accessible, when appropriate, to anyone who may wish to have recourse thereto. However, it was not effectively accessible to the applicant : not having been put in a position in which she could apply to the High Court… she was unable to seek recognition in law of herde facto separation from her husband. She has therefore been the victim of a violation of Article 8...
Airey v. Republic of Ireland, para 33
Dembour has hailed theAirey judgement as an early feminist victory in her analysis of case law of the European Court, as in her words, it is a rare example in the history of the ECHR where the European Court “used its legal imagination in order to relieve the predicament of a woman” (Dembour 2006:
215). The main point of the European Court was that rights guaranteed by the European Convention should not be “theoretical and illusory” but “practical and effective”53. Thus, it was not enough to deplore that Ms Airey could not afford Court proceedings, the system should be modified so that everyone regardless of their financial means have access to court also in civil matters. In essence, a right to divorce was not discussed as such, but the unavailability of a proceeding that helps in ending marital relationship was seen as a violation of the right to private and family life.
Johnston and others v. Ireland from 198654 is in some ways comparable to Airey from a male point of view, as it is relevant to the privatisation and intimisation of dyadic relationships between adults and the process of démariage (see Théry 1993). However, in this case the possibility to divorce and remarry and the possibility of a child born out of wedlock to be recognised
52Airey v. Ireland, para 11.
53Airey v. Ireland, para 24.
54Johnston and others v. Ireland, no. 9697/82, 18 December 1986, Series A no. 112.
were deeply intertwined. The applicants were a cohabiting couple, Mr Johnston, Ms W and their child. Mr Johnston got married in 1952 and three children were born of the marriage. In 1965, Mr Johnston and his wife began to live in separate parts of the family home. Both of them formed relationships with other people with and lived with their partners in self-contained flats in the house until 1976, when Mrs Johnston moved away. Mr Johnston had been living with Ms W for seven years when they had a child in 1978. Mr and Mrs Johnston were unable to divorce under the Irish legislation in force at the time55, but Mr Johnston made arrangements to the benefit of Ms W and their daughter.56
In front of the Commission, Mr Johnston, Ms W and their child complained of the “absence of provision in Ireland for divorce and for recognition of family life of persons who, after the breakdown of marriage of one of them, are living in a family relationship outside marriage”57. They evoked Article 8 (right to respect for private and family life), Article 9 (freedom of thought, conscience and religion), Article 12 (right to marry and to found a family) and Article 13 (right to an effective remedy) of the European Convention as well as Article 14 (prohibition of discrimination) taken in conjunction with Article 8 and Article 12). In the end, the European Court only found a violation of Article 8 regarding “the legal situation of the third applicant under Irish law… as regards all three applicants”. It did not find a violation of Article 8 or Article 12 due to the inability of Mr Johnston and Ms W to marry.
In contrast toAirey, Johnston (discussed in chapter 5.3 also in the context of paternity out of wedlock) dwells very much on the absence of the right to divorce, or the resulting inability to remarry, and the argument was built on Article 8 and Article 12. In this case, the European Court found that the lack of recognition of the relationship Mr Johnston had with his child born out of wedlock but with a woman he was cohabiting with constituted a violation of Article 8, but the lack of recognition of the relationship between him and his cohabitee and their impossibility to marry due to him not being able to divorce his wife did not. The European Court offers an interesting discussion why no right to divorce may be understood to emanate from Article 12:
The Court agrees with the Commission that the ordinary meaning of the words "right to marry" is clear, in the sense that they cover the formation of marital relationships but not their dissolution.
Furthermore, these words are found in a context that includes an express reference to "national laws"; even if, as the applicants would have it, the prohibition on divorce is to be seen as a restriction on capacity to marry, the Court does not consider that, in a society adhering to the principle of monogamy, such a restriction can be
55 A constitutional ban on divorce was introduced in Ireland in 1937, and the ban was lifted in 1997 following one unsuccessful referendum and a successful one in 1995. See Burley and Regan (2002).
56 This case is discussed also in Chapter 5.3 on paternity.
57Johnston and others v. Ireland, para 38.
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regarded as injuring the substance of the right guaranteed by Article 12...
Johnston and others v. Ireland, para 52
The European Court went on to refer to the travaux préparatoires (preparatory works) of the European Convention and how Article 12 was based on Article 16(1) of the Universal Declaration of Human Rights which stipulates the right to marry and to found a family free from racial, nationality-based or religious discrimination if of full age. The drafting history of the European Convention was cited to note that the latter part of Article 16(1) of the UDHR stipulating that men and women “are entitled to equal rights as to marriage, during marriage and at its dissolution” was not included in Article 12 of the ECHR as only a right to marry was to be guaranteed.58
The decision ofKubiszynn against Poland59 from 2003 is slightly related to Airey in the sense that it concerns a divorce proceeding intertwined with criminal proceedings due to marital violence. However, the issue at stake was not the unavailability of divorce as such, and the complaint had more to do with the applicant, the wife, alleging unfair treatment by the judiciary as well as the length of divorce proceedings. In turn, the decision of J.G. against Ireland60 from 1987 was somewhat similar to Johnston, as the applicant desired to obtain a divorce due to leaving the Roman Catholic Church. The case was struck off the list due to the outcome ofJohnston. The decision ofX against Switzerland from 198161 concerned a slightly similar situation where an Argentinian national was unable to remarry in Switzerland due to having obtained only a judicial separation, not a divorce in his country of origin. This complaint, too, was considered inadmissible. Obstacles to marrying again after separating from one’s previous spouse have not surfaced in the European Court just from countries not granting divorce such as Ireland up until the mid-1990s. In the decision ofK.M. against the United Kingdom62 from 1997 the possibility of remarriage was affected by a divorce battle where the parties cross-petitioned each other and the process led to an error in the court system.
In the judgement ofBerlin v. Luxembourg from 200363 and the judgement of Aresti Charalambous v. Cyprus from 200764 the issue at stake was the length of divorce proceedings.
In the judgement of F. againstSwitzerland65from 1987 the applicant faced a temporary prohibition on remarriage imposed by the Swiss courts following
58Johnston and others v. Ireland, para 52.
59Kubiszyn v. Poland, no. 37437/97, 30 January 2003.
60J.G. v. Ireland, no. 9584/81, 8 May 1987, struck off the list.
61X. v. Switzerland (dec.), no. 9057/80, 5 October 1981.
62K.M. against the United Kingdom (dec.), no. 30309/96, 9 April 1997.
63Berlin v. Luxembourg, no. 44978/98, 15 July 2003.
64Aresti Charalambous v. Cyprus, no. 43151/04, 19 July 2007.
65F. v. Switzerland, no. 11329/85, 18 December 1987, Series A no. 128.
his third divorce due to being the party at fault. Such a restriction was possible under the Swiss Civil Code under a provision that dated from 1912.66 Such a waiting period had been a legal possibility in the Federal Republic of Germany, which abolished it in 1976, and in Austria that abolished it in 198367. The reason provided in the narrative was that he got married to his third wife after a few days of acquaintance and filed for divorce less than two weeks after getting married to her. As setting a remarriage ban was possible in Swiss law, he was given a three-year ban on remarrying due to his behaviour towards his third wife. In front of the Commission, he complained that his rights under Articles 12 (right to marry and to found a family), 8 (right to respect for family life) and 3 (prohibition of degrading treatment) had been violated, of which the Commission found the complaint admissible under Article 12.68 The European Court compared the situation of Mr F to the situation of Mr Johnston by arguing that
…furthermore, and above all, F’s situation is quite distinct from Mr.
Johnston’s, since what was at issue in the case of the latter was the right of a man who was still married to have his marriage dissolved.
If national legislation allows divorce, which is not a requirement of the Convention, Article 12 (art. 12) secures for divorced persons the right to remarry without unreasonable restrictions.
F. v. Switzerland, para 38
Thus, the European Court regarded the marriage ban disproportionate to the aim pursued, and found a violation of Article 1269. However, while noting that such waiting periods had been abolished in neighbouring States and that the Convention had to be interpreted according to present-day conditions, it also found that
… the fact that, at the end of a gradual evolution, a country finds itself in an isolated position as regards one aspect of its legislation does not necessarily imply that that aspect offends the Convention, particularly in a field - matrimony - which is so closely bound up with the cultural and historical traditions of each society and its deep-rooted ideas about the family unit.
F. v. Switzerland, para 33
This would also mean that if a State would remain among few others that stick to a singularist notion of marriage, this would not, as such, pose a problem to
66F. v. Switzerland, para 22.
67F. v. Switzerland, para 33.
68F. v. Switzerland, para 26-27.
69F. v. Switzerland, para 40.
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the marriage legislation in that State being compatible with the European Convention on Human Rights.