Johanna Westeson - The ICHRP

5. Concluding remarks
In Johnson, the European Court of Human Rights declined to rule that Article 12 of the
Convention, the right to marry, also includes a right to terminate marriage. However, much
time has passed since that ruling, and the European region now shows a strong consensus
on the right to divorce. Finland and Spain provide examples of countries that grant divorce
upon the request of one party, without requiring the presentation of reasons or
justifications. The Spanish legislature makes the motives for this approach explicit: if
marriage is a contract that relies on the will of the two parties to it, then once the will of
one or both of the spouses is absent, the foundation of the contract has broken down. This
rationale leads to an abolishment of the requirement of grounds for divorce. In addition,
pre-specified grounds for the granting of divorce can lead to humiliating state interference
in intimate affairs. Suffice to conclude here that for the sexual health of both parties to an
intimate relationship, easily accessible, non-moralistic, and non-intrusive divorce
procedures based on the free will of spouses are to be preferred.
3C. FORCED MARRIAGES
1. Introduction
According to international human rights instruments recognizing the right to marry,
marriage shall not be entered into without the free and full consent of the intending
spouses. 363 Forced marriages clearly violate these principles. To force a person to marry
contrary to his or her will can also imply a violation of a myriad of other rights, such as the
right to liberty and security of person, the right not to be subjected to cruel and degrading
treatment, and the right not to be held in servitude. 364 When expressed as child marriages,
forced marriages also run contrary to several well-established rights of children, such as
the right to health, the right to be protected from harmful practices, the right to education,
and the right to freedom from abuse and exploitation. 365 The risk of domestic violence and
sexual abuse is also elevated in forced marriages. For these reasons, forced marriages have
serious negative impact on sexual health.
In Europe there is a strong consensus against the practice of forced marriages, but
European countries have taken different approaches to the problem. The main difference is
how it is being addressed: whether as a separate offense in criminal law legislation (as in
Norway), falling under other criminal law provisions, such as coercion or duress (as in
Germany), or addressed primarily through civil legislation (as in the United Kingdom).
2. Council of Europe and the European Union
The issue of forced marriages has not been addressed by Council of Europe conventions or
the European Court of Human Rights, or by binding European Union law.
363 Article 23, ICCPR, Article 16, CEDAW.
364 See, for example, Articles 7, 8and 9 of the ICCPR.
365 See Articles 19, 24, 28, 29, 34 and 39 of the CRC.
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