Information Note on the Court’s case-law 232
Theodorou and Tsotsorou v. Greece – 57854/15
Judgment 5.9.2019 [Section I]
Tardy annulment of marriage between a former brother-in-law and sister-in-law: violation
Facts – The applicants are a couple: the first applicant was previously married to the second applicant’s sister. Following the dissolution of that marriage by divorce in 2001, the applicants married each other in 2005.
Having been alerted by the first applicant’s ex-wife in 2006, the public prosecutor’s office brought proceedings in 2007 to have the new marriage declared null and void. The Greek Civil Code prohibits any marriage between persons related by direct descent and collateral affinity up to the third degree; this includes situations where the marriage giving rise to the affinity has been annulled or dissolved.
Holding that this prohibition served to uphold decency and respect for the institution of the family, the courts annulled the marriage; the annulment was upheld in 2015.
Law – Article 12: The applicants were in a permanent and long-term relationship. They had continued to live together following the definitive annulment of their marriage, without however enjoying official recognition of their relationship.
While the Court could accept limitations concerning the capacity for contracting marriage, consent, consanguinity or the prevention of bigamy, other prohibitions preventing marriage between consenting and legally competent adults could raise a problem under Article 12.
In view of the following considerations, the Court concluded that the confirmation of the nullity of the applicants’ marriage had disproportionality restricted their right to marry to such an extent that the very essence of that right had been impaired.
Firstly, the impediment in question had not served to prevent, for example, possible confusion or emotional uncertainty for the first applicant’s daughter from his previous marriage, or confusion as to the nature of or degree of kinship.
Secondly, a consensus could be observed within the member States of the Council of Europe concerning impediments to the marriage of (ex-) sisters-in-law and brothers-in-law: according to the information available, only two of the forty-two member States reviewed laid down such an impediment to marriage; moreover, that impediment was not absolute. This consensus was an important element in the Court’s analysis of the competing interests at stake.
Thirdly, the issue of the nullity of the applicants’ marriage had only been raised a posteriori. Once the divorce certificate confirming the end of the first applicant’s marriage to his ex-wife was issued in July 2004, the applicants had married in a religious ceremony without any obstacles, and the relevant national authorities had not objected.
Moreover, the domestic law laid down a series of procedural requirements before a marriage could be concluded: banns, giving notice of the intended marriage, had to be displayed at the town hall or municipal offices, or, where the future spouses lived in a large town, published in a daily newspaper.
There was nothing in the case file to suggest that objections had been raised to the marriage after this announcement was published. The first applicant’s ex-wife had not complained to the prosecutor about the marriage until approximately one year and five months after it had taken place. For his part, the prosecutor only applied to the courts seven months later, that is, two years after the contested marriage.
According to the Civil Code, the relevant authorities must verify that the legal conditions have been met in order for a proposed marriage to be contracted: it is only where they consider that those conditions have been met that they issue a marriage licence. In the present case, however, it did not appear that the relevant authorities had expressed any doubt whatsoever before issuing this licence.
Fourthly, the applicants had remained married under these conditions for a significant period of time. Until the dismissal of their appeal on points of law, their marriage had been de facto valid and fully effective. They had thus enjoyed, for more than ten years, both social and legal recognition of their matrimonial relationship and the protection afforded solely to married couples.
Fifthly, and with regard to their other arguments, the Government had not explained:
– what specific “ethical” problems were raised, especially with regard to a situation that had been well-established for many years;
– how the prohibition in question could have helped or served the “social need for communication” between the members of a family and the outside world;
– how “biological considerations” and the practical risk of “confusion” (concerning the nature or degree of kinship or of the inter-generational tie), which had allegedly motivated the legislature, were relevant in the present case, given that the individuals in question were not blood relations and had not had children together.
The fact remained that the applicants were now deprived of all the rights granted to married couples, which they had nonetheless enjoyed for ten years.
Conclusion: violation (unanimously).
Article 41: EUR 10,000 jointly for non-pecuniary damage. Duty on the respondent State to implement such measures as it considered appropriate to fulfil its obligations to secure the right of the applicants, and of other persons in the same situation, in compliance with this judgment.
(See also B. and L. v. the United Kingdom, 36536/02, 13 September 2005, Information Note 78)