Article 16 – Marrying and starting a family

What does this right mean?

Article 16 protects the right to get married. The government may not prohibit people from getting married over their races, nationalities or religions. The core of the right is: two people of marriageable age have the right to marry each other if they mutually consent. In most countries, this means people have to be adults.

Denying people access to marriage… it’s denying them the status and dignity of being ordinary citizens in society.

What is the history of this right?

Marriages between people of different races

The right to marry has been enormously expanded in many countries in the past centuries. Back when the Universal Declaration was drafted, many places in the world had discussions on whether or not people from different races should be allowed to marry each other. An example of were this was going on were some parts of the United States, where race laws still prohibited marriage between two races. This was also the case in South Africa. And Europe still clearly remembered the Nazi regulations, which determined that marriages had to be ‘racially pure’.

Marriages between people of the same sex

Other restrictions on marriages were still considered very normal by most people back then, including the negotiators of the UDHR. For instance, the right for people of the same sex to marry is not included in the Universal Declaration of Human Rights. It took a long time before this was allowed in some countries.

In 2001, the Netherlands became the first country in the world to allow marriages between two people of the same sex. After that, it also became allowed in a number of other countries. Still, international law only changes quite slowly. A real universal right to a free marriage does not (yet) exist.

Equality of men and women

Another very important part of the right to marriage is the equality of men and women: only with the free and full consent of both marriage partners may a marriage take place. And thus not if only one of the two wants to get married or if the parents want their child to get married. With this rule, the drafters of the UDHR wanted to ensure that no more forced marriages would take place. During marriage and divorce as well, the UDHR gives equal rights to men and women.

Vision on society and family

Article 16 shows how most people back then looked at the meaning of society and family: marriage was the foundation and condition for the formation of a family. So: get married first and THEN have children – not the other way around.
The family was then seen as the ‘natural and fundamental group unit of society’. Briefly summarised: marriage was not just a free choice made by two people, but also a building block for society as a whole. So not just something individual, but also something social. That is why the Universal Declaration states everyone has the right to marriage being protected by society AND the state.

Where and how is this right documented?

Right to marry

The right to marry was already included in the European Convention on Human Rights (ECHR) back in 1950. Article 12 of that treaty states that men and women of marriageable age have the right to marry in accordance with the national laws of the countries they live in. The same right was later also included in Article 23 of the International Covenant on Civil and Political Rights (1966).

Right to a free marriage – mutual consent

The right to a free marriage is documented worldwide in the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962). This convention states that the most important principle for marriage is: mutual consent between men and women who are both of marriageable age. Countries themselves determine which age is considered marriageable age. In most countries, this is eighteen years. Just like the Universal Declaration, this Convention states someone's race, nationality or religion cannot restrict the right to marriage.

Protection of the family

The protection of the family as the ‘natural and fundamental group unit of society’ is documented in Article 10 of the International Covenant on Economic, Social and Cultural Rights(1966).

Respect for private life and family life

The right to marry also involves the right to respect for private life and family life. That right is protected in Article 8 of the European Convention on Human Rights (ECHR). This article means people can live their lives the way they want to. These rights are also connected to the prohibition on discrimination from Article 14 of the ECHR.

How topical is this human right?

Current Dutch law protects more forms of marriage than it did back in 1948, when the Universal Declaration was adopted. People may marry, in which it does not matter what their religions, nationalities or races are. Their sexes do not matter either: marriages between people of the same sex are allowed.

Minimum protection

This recognition in Dutch law is even broader than what is stated in human-rights treaties. In Article 12 of the European Convention on Human Rights (ECHR), ‘men and women’ are mentioned, while other articles refer to ‘everyone’. So, the ECHR still assumes marriages between a man and a woman. There is also no referral to a marriage regardless of orientation and gender yet, but only to religion, nationality or race. This is an example of the fact that international human rights provide a minimum protection, a bottom-line countries may not fall below. But they are allowed to go beyond that and provide even more protection. That is what the Netherlands did.

A family: rights and duties

Men and women have the right to start families. That can also be found in Article 12 of the European Convention on Human Rights (ECHR). But does that also mean the government has a duty to help parents fulfill their wish to have children? Or can it also be about making birth control available?

In the Netherlands, contraception is provided, and the government provides all kinds of possibilities to have a child at the same time. This is not arranged the same way in all countries. The reimbursement of contraception is not standard in the Netherlands. In countries where contraception goes against religious or cultural beliefs, it will definitely not be reimbursed. Differences in welfare also cause differences in alternative ways to have a child.

And what about abortion? The differences between countries in terms of permissibility of abortion are getting bigger and bigger: is abortion covered under the right to start (or not start) a family?

So, the modern interpretation of what it means to make family life possible and protect it is in full development and varies strongly from country to country.