12 Sep Prohibition of marriage between relative by affinity violated Convention rights

In the case of Theodorou and Tsotsorou v. Greece (application no. 57854/15, 05.09.2019) the European Court of Human Rights held, unanimously, that there had been a violation of Article 12 (right to marry) of the European Convention on Human Rights. 

The case concerned a judicial decision annulling the marriage of Ms Tsotsorou and Mr Theodorou on the grounds that Ms Tsotsorou was Mr Theodorou’s former sister-in-law. In 1971 Mr Theodorou married P.T., and in 2001 the marriage was dissolved by decision of Athens Regional Court. In 2004 a divorce certificate was issued. In 2005 Mr Theodorou married the sister of P.T. (Ms Tsotsorou) in a religious ceremony. The following year P.T. complained to the public prosecutor’s office about that marriage, pleading nullity on the grounds of kinship by marriage between the two spouses

On the basis of Article 1357 of the Civil Code – which prohibits, in particular, marriage between persons of collateral affinity up to the third degree, the Greek courts annulled the applicants’ marriage, 10 years after it had been entered into, and held that the individuals in question were related in collateral affinity to the second degree. In its decision the court pointed out that the applicants were second-degree relatives by collateral descent, and that Greek law prohibited their marriage for reasons of decency and respect for the institution of the family.

The Court noted that a consensus had emerged in the member States of the Council of Europe with regard to the impediment to the marriage of “ex-” sisters-in-law and brothers-in-law. Only two of the member States reviewed had introduced such an impediment to marriage, and even then that impediment was not absolute.

The Court also found that the applicants had not faced any obstacles prior to entering into their marriage and the national authorities had raised no objections.

With regard to the Government’s arguments concerning “biological considerations” and the risk of confusion, the Court noted that those problems did not arise in the present case. It was not clear what exactly those biological considerations involved, or the practical risk of confusion preventing the applicants’ marriage, given that they were not blood relatives and had not had children together. Furthermore, with regard to the Government’s argument that there existed a social need for communication between the members of a family and the outside world, the Court observed that the Government had not specified how the prohibition in question could assist in or serve such communication.

Thus, the Court found that the annulment of the applicants’ marriage had disproportionately restricted their right to marry to such an extent that the very essence of that right had been impaired.

References from the official website of the European Court of Human Rights