CASE OF B. AND L. v. THE UNITED KINGDOM
Violation of Art. 12;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
Josep Casadevall;Nicolas Bratza
7. The applicants were born in 1947 and 1968 respectively and live in Warrington. 8. The first applicant, B, married A and this marriage ended in divorce in 1987. B and A had a son together, C. The first applicant then married D. The first applicant and D separated in August 1994 and the divorce was finalised on 9 July 1997. 9. The second applicant, L, married C, the first applicant's son from his first marriage. The first applicant and the second applicant were therefore father-in-law and daughter-in-law. The second applicant and C separated in 1995 and their divorce was finalised on 8 May 1997. The second applicant and C have a son together, W. The first applicant is, therefore, W's grandfather. 10. A relationship developed between the first and second applicants in 1995 after C had left the second applicant's matrimonial home. The applicants have been cohabiting since 1996. W lives with the applicants and only has sporadic contact with his father, C. W now calls the first applicant “Dad”. The applicants plan to adopt W which is permitted by domestic adoption law. 11. In a letter dated 29 May 2002, the first applicant wrote to the Superintendent Registrar of Deaths and Marriages at Warrington Register Office to inquire about whether he could marry the second applicant. In a letter dated 13 June 2002, the Superintendent Registrar stated that under the relevant domestic legislation, it would be impossible for the applicants to marry unless A and C were both dead: “... The only circumstances a marriage could be allowed between yourself and [L] would be if you had both attained the age of twenty one and you could produce evidence of the death of your son and his mother (your first wife).” 12. The applicants subsequently sought legal advice on whether there was any remedy against the decision of the Superintendent Registrar but were advised by counsel that no remedy existed since the basis for the decision was primary legislation, namely, the Marriage Act 1949 as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986. 13. Section 1 of the Marriage Act 1949, as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986, (“the 1949 Act”), provides that: “(4) Subject to subsection (5) of this section, a marriage solemnized between a man and any of the persons mentioned in the first column of Part III of the First Schedule to this Act or between a woman and any of the persons mentioned in the second column of the said Part III shall be void. (5) Any such marriage as is mentioned in subsection (4) of this section shall not be void by reason only of affinity if both parties to the marriage have attained the age of twenty-one at the time of the marriage and the marriage is solemnized – ... (b) In the case of a marriage between a man and the former wife of his son, after the death of both his son and the mother of his son; (c) In the case of a marriage between a woman and the father of a former husband of hers, after the death of both the former husband and the mother of the former husband; ...” 14. Part III of the First Schedule to the 1949 Act contains lists of persons between whom marriage is prohibited. The first column referred to in section 1(4) of the Act includes the former wife of a man's son and the second column includes the father of a woman's former husband. 15. The 1949 Act contained an absolute prohibition on marriages between former father-in-law and daughter-in law until section 1(5) was introduced by the Marriage (Prohibited Degrees of Relationship) Act 1986 (“the 1986 Act”). 16. By virtue of section 1(3) of the 1949 Act (as amended), marriages between former step-parents and step-children are not void if both parties have attained the age of 21 and the younger party was never “a child of the family” in relation to the other party. The 1949 Act does not stipulate that marriages between an uncle and niece or an aunt and nephew are void in cases where there is no consanguinity between the two parties. 17. Prior to the enactment of the 1986 Act, a report, entitled “No Just Cause: Affinity: Suggestions for Change” was drawn up in 1984 by a group appointed by the Archbishop of Canterbury, including members of the House of Lords, on the question of the prohibition of marriages on the grounds of affinity. This report suggested some of the amendments to the law made in the 1986 Act. A report drawn up by the majority concluded that: “Most, perhaps, all, members of the Group started from an intuitive reaction that it was not only unlawful to marry one's mother-in-law or father-in-law, but also that it was undesirable, and perhaps sinful and perilous. But as we studied and discussed the accumulating material we gradually came to recognise that the prohibition is based simply on tradition and cannot now be justified on any logical, rational or practical ground. The experience of other states where there has never been such a prohibition provides a strong and persuasive argument for abolishing these impediments on marriage. In our view, the retention of these legal impediments is not essential to the maintenance of healthy and stable relationships within the extended family. ... The younger person in the above lists will scarcely ever have been a child of the family of the older person before the younger person had attained the age of 18. Moreover, he or she will also have married (at least once) and for that ceremony the law and society will have treated him or her as having had the capacity and maturity to marry. Thus our principal concern of wishing to afford some protection to the younger person in those circumstances would be satisfied if the existing legal impediments preventing a lawful marriage being solemnised between a man and a woman and his or her affine in classes C and D [parent-in-law and child-in-law] were removed” 18. The minority report recommended the “retention of the impediment on marriage between parent-in-law and child-in-law” on the basis that it raised the same difficulties as step-parent and step-child, namely it “would condone sexual rivalry between father and son, or mother and daughter, which, within the close confines of the family, would be destructive of the father and son, or mother and daughter, relationships”: “... In addition ... it would deprive the child-in-law of his or her safety of place as a child in the new family into which he or she marries. When for instance a son brings his wife to his father's home, there is an underlying assumption that the daughter-in-law will assume a role in relation to her father-in-law which is exempt of sexual expectations. To admit the possibility of a future marriage between parent-in-law and child-in-law would be to undermine assumptions which make for the safety and comfort of the adult family.” 19. The bill as put forward for adoption represented the common ground between the majority and minority views – it excluded change for the impediment for in-laws and removed the impediment for step relations, where both parties were over 18 and the younger party had never been treated as a child of the family. During the consideration of the bill which became the 1986 Act in the House of Lords, Lord Denning unsuccessfully proposed an amendment which would remove the impediment to a parent-in-law marrying his or her child-in-law. He argued that this was necessary in order to make the law consistent since the bill would remove the impediment to a step-parent marrying his or her step-child and the case of a parent-in-law and child-in-law was, if anything, less problematic. However, this proposed amendment was not adopted. 20. It is possible for a marriage between a former parent-in-law and child-in-law to be permitted in individual cases by a personal Act of Parliament. The personal Act effectively exempts the individuals from the application of a statutory prohibition on marriage. Whether such an Act is passed or not is at the discretion of Parliament. 21. Such personal Acts have been passed several times in the past although no Act of this nature has been sought or passed since 1987. For instance, in the Valerie Mary Hill and Alan Monk (Marriage Enabling) Act 1985, Parliament permitted the proposed marriage between Valerie Hill, the mother of Alan Monk's first wife, and Mr Monk. At the time of this personal Act, the 1986 Act had not yet been passed and, therefore, there was an absolute prohibition under the 1949 Act on marriage between parents-in-law and children-in-law. In considering the personal bill, several members of the House of Lords noted that the facts of the case were not “exceptional”. The resulting personal Act set out the facts of the case, from which it appeared the couple were living in the same household and wished to bring up the children of the son-in-law (and grandchildren of the mother-in-law) in a stable home. It continued: “ ... (8) Valerie Mary Hill and Alan Monk regard the legal impediment to their marriage as imposing hardship on them, and as serving no useful purpose of public policy in the particular circumstances of their case: (9) They accordingly desire that the impediment should be removed in their case: (10) The object of this Act cannot be attained without the authority of Parliament: Therefore Valerie Mary Hill and Alan Monk most humbly pray that it may be enacted, and be it enacted, by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:- 1. Notwithstanding anything contained in any enactment or any rule of law to the contrary, there shall be no impediment to a marriage between Valerie Mary Hill and Alan Monk by reason of their relationship of mother-in-law and son-in-law, and no marriage hereafter contracted between them shall be void by reason of that relationship. ...” 22. There are no established criteria for the granting of a personal Act of Parliament in order to permit a marriage otherwise prohibited by the 1949 Act. There is no investigation into the facts as submitted by the individuals in question. The costs of obtaining a personal Act of Parliament are GBP 200 at the First and Third Reading of the bill in each House of Parliament, amounting to GBP 800, plus the fees of a “Roll A” Parliamentary Agent, who is the only person permitted to promote a personal bill. Legal aid is not available for the costs of obtaining a personal Act of Parliament. 23. This procedure of seeking a personal Act of Parliament in order to authorise an otherwise prohibited marriage was commented on by Viscount Davidson in the House of Lords during the passage of the 1986 Act in the following terms: “... Parliament has from time to time enacted laws enabling particular couples to marry, notwithstanding that they are related as step-parent to step-child or parent-in-law to child-in-law. I do not think that anyone has suggested that this is a particularly suitable way of deciding whether two people so related should be allowed to marry. It has been criticised as cumbersome, expensive and unseemly. In the Second Reading of the Sonia Ann Billington and Norbury Billington (Marriage Enabling) Bill, my noble and learned friend the Lord Chancellor said that it offended his sense of justice that the House should be asked to decide without evidence whether a couple should be enabled to marry ...” (Viscount Davidson, HL Hansard 9 December 1985, col. 59) Lord Meston stated during the debate: “Personal Bills are costly, embarrassing and time-consuming for this House. They add to the anxieties of the couple who should of course be a happy couple. They always receive a sympathetic hearing and the three recent Bills involving mature step-relations have passed through this House without any great difficulty. But it all tends to suggest that there is one law for those who hear of the procedure and who can afford it in its practical consequences. Apart from a personal Bill or going abroad the other alternatives are for the couple either to live together without marriage, without consequences such as illegitimacy and the lack of any widows' pension for the lady or for them to part with consequential distress for all concerned.” 24. Section 4 of the Human Rights Act 1998 provides: “(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. (6) A declaration under this section ... - (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it was given; and (b) is not binding on the parties to the proceedings in which it is made.” 25. Section 10 provides: “(1)This section applies if - (a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right (...) (2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.” 26. The 1998 Act entered into force on 2 October 2000.