The European Convention on Human Rights (ECHR) covers 47 states with very different legal cultures and political histories. Written from the perspective of the situation in Malta, this short essay looks at the question of the limits to the negative dimension of Article 12 ECHR. This can lead to surprising results, which become less surprising if the historical background of the drafting of the ECHR is taken into account. The text also shows a way to avoid some of the consequences of the narrow approach employed by the drafters - without abandoning the fundamental ideas behind the Convention.
Table of Contents
- 1 Introduction
- 2 A negative Dimension to the Right to Marry under Article 12 ECHR?
- 3 What Role for Consensus?
- 4 Concluding Remarks
Objectives and Key Themes
This text aims to analyze whether the European Convention on Human Rights (ECHR) mandates the legalization of divorce within member states. It examines the legal arguments surrounding Article 12 ECHR, focusing on its interpretation and application in relation to divorce rights.
- The interpretation of Article 12 ECHR concerning the right to marry and its potential negative dimension regarding divorce.
- The role of consensus and differing legal perspectives on the right to divorce within the framework of the ECHR.
- The relationship between Article 12 ECHR and other relevant articles, such as Article 8 (right to private and family life) and Article 10 (freedom of expression).
- The implications of Protocol 7 to the ECHR concerning the equality of rights and responsibilities between spouses.
- The legal analysis of the ECHR's stance on divorce, divorced individuals' right to remarry, and the overall impact on family life.
Chapter Summaries
1 Introduction: This introductory chapter sets the stage by discussing Malta's 2011 referendum legalizing divorce, highlighting the historical and religious context of the opposition to divorce within Maltese society. The chapter contrasts the Catholic Church's view of marriage as a sacrament, emphasizing that even civil divorce does not dissolve the sacramental union, with the concept of annulment. The introduction then establishes the central question of the text: whether Malta was legally obligated under the ECHR to allow divorce and frames the analysis strictly within the legal framework of the convention, excluding political, moral, or religious arguments.
2 A negative Dimension to the Right to Marry under Article 12 ECHR?: This chapter analyzes the wording of Article 12 ECHR, focusing on the right to marry and establish a family. It discusses relevant case law, notably *Johnston and others v. Ireland* and *F. v. Switzerland*, which established that Article 12 does not explicitly grant a right to divorce. The chapter contrasts Article 12 with other articles, such as Article 10, highlighting the difference in how the right to marriage is framed within the convention. It emphasizes the lack of a "negative dimension" to Article 12—a right not to be married—in the context of divorce, contrasting this with the right not to marry (often protected under Article 8). The chapter explains that while a right *not* to be married exists, this differs legally from the right to divorce.
3 What Role for Consensus?: This chapter delves into the complexities of the role of consensus in shaping the interpretation and application of Article 12 ECHR. It analyzes how differing legal interpretations and national laws might impact the understanding of the right to divorce in the context of the Convention. The chapter is likely to explore the varying perspectives on the right to divorce, including those grounded in national contexts and differing legal traditions, in relation to the ECHR. The chapter likely explores whether the Convention necessitates the legalization of divorce or merely sets minimum standards for divorce proceedings once a state chooses to allow them.
Keywords
Article 12 ECHR, right to marry, right to divorce, European Convention on Human Rights, family life, case law, legal interpretation, Protocol 7, *Johnston v. Ireland*, *F. v. Switzerland*, Malta, religious context, legal obligation.
Frequently Asked Questions: Analysis of the European Convention on Human Rights and the Right to Divorce
What is the main topic of this text?
This text analyzes whether the European Convention on Human Rights (ECHR) mandates the legalization of divorce within member states. It focuses on the interpretation and application of Article 12 ECHR (right to marry) in relation to divorce rights, considering its potential "negative dimension" and the role of consensus in its interpretation.
What are the key themes explored in this text?
Key themes include the interpretation of Article 12 ECHR regarding the right to marry and its implications for divorce; the role of consensus and differing legal perspectives on divorce within the ECHR framework; the relationship between Article 12 ECHR and other relevant articles (e.g., Articles 8 and 10); the implications of Protocol 7; and a legal analysis of the ECHR's stance on divorce, remarriage, and its impact on family life.
Which articles of the ECHR are discussed?
The text primarily focuses on Article 12 ECHR (right to marry), but also examines its relationship with Article 8 (right to private and family life) and Article 10 (freedom of expression), and the implications of Protocol 7 to the ECHR.
What is the significance of Article 12 ECHR in relation to divorce?
The text explores whether Article 12 ECHR, focusing on the right to marry, has a "negative dimension" implying a right to divorce. It examines case law to determine if the ECHR mandates the legalization of divorce or merely sets minimum standards for divorce proceedings once a state allows them.
What role does consensus play in the interpretation of the ECHR regarding divorce?
The text investigates how differing legal interpretations and national laws impact the understanding of the right to divorce within the ECHR framework. It considers whether the Convention necessitates the legalization of divorce or simply sets minimum standards for divorce procedures in states where it is permitted.
What case law is relevant to this analysis?
The analysis refers to key case law, notably *Johnston and others v. Ireland* and *F. v. Switzerland*, to understand the ECHR's stance on the right to divorce in relation to Article 12.
What is the context of Malta's 2011 divorce referendum in this analysis?
Malta's 2011 referendum legalizing divorce serves as a backdrop, highlighting the historical and religious context of opposition to divorce and framing the central question of whether Malta was legally obligated under the ECHR to allow divorce.
What is the overall conclusion of the text (as previewed)?
The preview does not offer a final conclusion but promises a legal analysis strictly within the framework of the ECHR, excluding political, moral, or religious arguments, to determine whether the ECHR mandates the legalization of divorce.
What are the key words associated with this text?
Key words include: Article 12 ECHR, right to marry, right to divorce, European Convention on Human Rights, family life, case law, legal interpretation, Protocol 7, *Johnston v. Ireland*, *F. v. Switzerland*, Malta, religious context, legal obligation.
- Quote paper
- Dr. Stefan Kirchner (Author), 2015, Limits of the Negative Dimension of Article 12 of the European Convention on Human Rights, Munich, GRIN Verlag, https://www.grin.com/document/306441
