The European Court of Human Rights (ECtHR) has issued its first substantial ruling under Article 12 of the European Convention on Human Rights on the right to marry, finding that the right can be restricted by partial lack of capacity.
The case involved a 72 year old man who was placed under the partial guardianship of his adoptive daughter in 2009. This decision was based on the fact that he had a ‘light cognitive disorder’ making him ‘somewhat vulnerable’, and justified by his inability to manage his property and finances.
The same year, the man sought the authorisation of his guardian to marry a friend whom he had known since 1996, and had been in a relationship with since 2008. This was refused by the guardian as she did not know the friend sufficiently well.
The guardianship judge also refused as they were of the view that the applicant did not understand the implications of the marriage. This was based on expert reports that found the man was capable of consenting to marriage but that the proposal ran counter to his interests. A social welfare report identified possible conflict between the guardian and the friend, both of whom showed interest in his property, however there were no signs of undue influence as the applicant saw the arrangement as a way to ensure home help and escape loneliness.
The complaint to the ECtHR was argued exclusively on the basis of Article 12. In finding against the applicant, the Court stated that the right to marry could be restricted by ‘generally recognised public interest considerations’, which include capacity. When it came to legal capacity, the Court found there to be a wide margin of appreciation to protect the interests of those who are incapacitated. The Court also drew a distinction between instances where the right to marry is deprived in full and the situation where the man in this case simply had to request his guardian’s consent, particularly where it saw comprehensive procedural safeguards to be in place.
The dissenting judgement of Judge Nussberger, however, highlighted the right to marry as an important right which was reduced to a purely financial decision and had been disproportionally restricted in this case. She was of the view that the social and personal aspects of marriage were neglected, and these were the ones that mattered to the applicant.