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HUMAN RIGHTS/RIGHT TO MARRY: B and L v UK (Application no 36536/02)

Date:13 SEP 2005

(European Court for Human Rights; 13 September 2005) [2006] 1 FLR 35

The ECHR unanimously held that the Marriage Act 1949 as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986 violates the European Convention for the Protection of Human Rights and Fundamental Freedoms, Art 12 by prohibiting a former father-in-law marrying a former daughter-in-law unless both the parties are 21 years old and the father's son and the son's mother have both died. Although the marriage could take place if both the applicants' former spouses died or if they applied and were successful in obtaining a personal Act of Parliament, this did not remove the impairment of the essence of the right to marry. The death of both the former spouses is unlikely as children tend to outlive parents and obtaining a personal Act of Parliament is an exceptional and relatively costly procedure which is at the discretion of the legislative body and for which there are no discernable rules or precedent. Individuals in similar situations have been permitted to marry where there were also children in the household. The inconsistency between the stated aims of the incapacity and the waiver applied in some situations undermines the rationality and logic of the measure. The impediment placed on the marriage serves no useful purpose of public policy. The bar on marriages between former father-in-laws and daughter-in-laws is aimed at protecting the integrity of the family and preventing sexual rivalry between parents and children and to protect children from the changing relationships of adults around them. However, there is no incest or other criminal law provisions to stop a relationship between a father-in-law and daughter-in-law occurring even where there are children living in the home, therefore the ban on marriages in such circumstances cannot be said to prevent any confusion for children of the family.