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11 The Right to Marry, the Right to Respect for Family Life, the Prohibition on Discrimination, and International Marriage

James J. Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah

From: Human Rights and Private International Law

James Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 09 December 2022

Family law — Marriage — EU Rules — Traditional rules — Judgments and orders

This chapter explores the impact of the right to marry and the right to respect for family life and the prohibition on discrimination on the English choice of law rules relating to validity of marriage and civil partnership. In their broad outline, the traditional English private international law rules on validity of marriage are reasonably well aligned with Articles 8, 12, and 14 ECHR as they have been interpreted by the ECtHR. The English choice of law rules presuppose a sharp distinction between formal validity on one hand and essential validity (or capacity) on the other, and this bifurcation is reflected in the ECtHR’s recognition of legitimate ‘substantive’ and ‘procedural’ restrictions on marriage. In their detail, however, the English rules are sometimes seriously misaligned with human rights expectations and most of the case law appears to have developed without any awareness of the potential impact of the ECHR.

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