Trwałość małżeństwa w świetle standardów międzynarodowych oraz orzecznictwa Europejskiego Trybunału Praw Człowieka

Abstract

This article concern the durability of marriage in the light of international standards and case law of the European Court of Human Rights. The durability is not precisely mentioned as one of the features of marriage in the international regulation but it results from the nature and purpose of this legal relationship. The analysis of the case law of the European Court of Human Rights in the context of the permanence of marriage lead to  following conclusions. First, none of the provisions of the European Convention on Human Rights and Fundamental Freedoms, including Article 8 and 12, does not guarantee the right to divorce and this solution was precisely deliberated  by the member states. Secondly, states have the power to regulate the provisions and procedure concerning divorce in a manner that is appropriate to their cultural and ideological conditions, with respect of the principle of durability of marriage. The termination of marriage that depends on a permanent and complete breakdown of married life and on the consent of an innocent spouse does not therefore constitute a violation of the Convention. However,  an unjustified extension of the divorce procedure resulting from circumstances attributable to the authorities were found to be inconsistent with the provisions of the Convention. In addition, the Article 12 of the Convention provides for the right to remarry for persons whose previous marriage was dissolved by divorce under national law. The article presents also contemporary propositions prepared by European Commission of Family Law concerning the liberalization of divorce law published in the Model Family Code.