By Corina Heri, Visiting Scholar at Ghent University
It has been the ECtHR’s constant case-law that Article 12 ECHR, while enshrining the right to marry an opposite-sex spouse, does not protect a right to divorce. The fact that the Court has resolutely held on to that idea despite the modern-day legalization of divorce in the Council of Europe Member States has been brought to the fore once again with the Fourth Section’s judgment in Babiarz v. Poland, issued on 10 January 2017. That case, brought under Articles 8 and 12 ECHR, concerned the applicant’s inability to obtain a divorce from his wife without her consent, as a result of which he could not marry the mother of his child. In short, Polish law gave higher priority to the legal fiction of an ongoing relationship between the spouses than to the de facto relationship between the applicant and his new partner, which had been ongoing for 11 years at the time of the Court’s judgment. The majority, in its judgment, found no violation of the ECHR. The present post will summarize the salient arguments made by the two dissenters, Judge Sajó and Judge Pinto de Albuquerque, and add some critiques of its own.
The Facts of the Case
The applicant married his wife, R., in 1997, and the spouses cohabited until Mr Babiarz met his current partner, A.H., and moved in with her in 2005. That same year, A.H. gave birth to the couple’s daughter. In 2006, the applicant filed for a no-fault divorce. However, his petition was not granted by the competent court, which noted that Mr Babiarz was responsible for the breakdown of the marriage and that his wife had affirmed her desire to reconcile. The court noted that while there had been a “a complete and irretrievable marriage breakdown” (Babiarz v. Poland, § 16), it could not grant a no-fault divorce without the consent of the “innocent” spouse as long as the refusal of that consent was not “contrary to the reasonable principles of social coexistence” (id., § 17). In other words, as there was no indication that R., in refusing her consent to the divorce, had “acted out of hatred, was motivated by vengeance, or simply wanted to vex the applicant” (id., § 18), the court found that there was insufficient reason to grant the divorce. The applicant’s appeal was dismissed.
The Majority’s Judgment on the Merits
The majority examined Articles 8 and 12 together, reiterating the Court’s long-standing case-law that neither provision enshrines a right to divorce given that such a right was intentionally excluded from the text of the Convention. However, it also recalled that the Convention is a living instrument and that, where the domestic law allows for divorce, it must also allow divorced persons to remarry (id., § 49). The Court noted that it has, in the past, found that the requirement of consent by the “innocent” spouse despite a total breakdown of married life could potentially violate Article 12 (§ 50, referring to Ivanov and Petrova v. Bulgaria, no. 15001/04, Judgment of 14 June 2011, § 61), but found – strangely enough – that this did not obtain in the case before it. Instead, it focused on the fact that there was no absolute impossibility of divorce under Polish law, that the domestic law was both detailed and meant to protect the “weaker party” in the proceedings, and that extensive evidence had been gathered by the domestic court. Then, in § 54 of the judgment, the Court acknowledged the stable nature of the applicant’s relationship with A.H. and the “irretrievable breakdown” of his marriage, but found that this did not mean that there had been a Convention violation given that
“[t]o contemplate otherwise would mean that a request for a divorce would have to be allowed regardless of the procedural and substantive rules of domestic divorce law, by a person simply deciding to leave his or her spouse and have a child with a new partner. While under Article 8, de facto families and relationships are protected, such protection does not mean that particular legal recognition has to be accorded to them. It has not been argued, let alone shown, that failure to obtain a divorce and the legal fiction of his continuing marriage prevented the applicant from recognising his paternity in respect of the child he had with A.H.” (§ 54).
Finding that the applicant was free to file for divorce again in the future, the Court found that there had been no violation of Articles 8 or 12 ECHR.
The Opinions of the Dissenters
Two judges dissented from the majority judgment. Judge Sajó, in his separate opinion, argued for violations of both Articles 8 and 12 ECHR, drawing on the need to interpret the Convention as a living instrument and contesting the majority’s framing of the case as one concerning a conflict of rights that required a wide State margin of appreciation. He stated that it was “simply not true (…) that the right to family life of the applicant’s wife, R., entails the right to family life with a specific person against that person’s will” (§ 6 of the Opinion). He also contested the proportionality of the interference with the applicant’s rights and noted that the applicant and A.H. cannot benefit from legal protection as a couple as long as he is married to another woman. Concerning the idea of the protection of morals, Judge Sajó argued that no evidence was submitted to the effect that protecting a de facto family over a de jure fiction represents a threat to morals. He concluded by arguing that divorce is a “necessary precondition” of the applicant’s right to marry in this case, and that “[t]o allow the State to force people to live with their regretted life choices, thus preventing them from moving on with their private lives, inevitably entails an impermissible intrusion that cannot be considered necessary in a democratic society” (§§ 20 and 23).
Judge Pinto de Albuquerque, voicing his agreement with Judge Sajó’s arguments, furthermore contested the majority’s decision to examine Articles 8 and 12 jointly and its failure to consider the rights of the applicant’s new family, and argued that the case should have been relinquished to the Grand Chamber. The Judge criticized the majority’s failure to follow its usual Article 8 analysis – particularly its failure to consider the necessity of the interference in a democratic society – and pointed out that the Court has, in the past, recognized rights that were explicitly excluded from the ECHR during its drafting (compare § 14 of the Opinion, referring to the recognition of negative freedom of association). He also made a cogent argument for a narrow margin of appreciation, noted the difficulty of proving that the refusal of consent to a divorce by an “innocent” spouse is motivated by bad faith, and decried the resulting “grave lack of clarity and legal certainty” (§§ 16-20, 25). The approach of the domestic courts, he concluded, was manifestly disproportionate given that it failed to strike a fair balance between the rights of all involved. While religious beliefs about marriage are shared by millions of Europeans, he contended, the principle of neutrality and “religious and moral pluralism” require that this belief not be imposed through State policy (§ 33).
In the present case, the applicant’s wife was effectively able to veto the formalization of his relationship with his new partner, even long after it was clear that their marriage had broken down. The potential for abuse here – the effects of which are comparable to what has been called ‘marital captivity’ elsewhere – is evident, but this judgment is not a one-off; it is based on the Court’s established case-law under Article 12, drawn from the 1986 finding in Johnston and Others v. Ireland. The Court’s approach to divorce frames the concept as a morally problematic one – akin to abortion or same-sex marriage – as well as, in this case, a conflict of rights, and it therefore grants Member States a wide margin of appreciation in these matters. Of course, the views of those who favour a more conservative interpretation of Article 12 in light of moral and religious considerations cannot simply be ignored or negated; the provision is, as per its text, subject to the conditions of the national law, which may reflect these views to some extent. With this in mind, it is not the aim of the present post to argue that States must allow for so-called “divorce on demand” under Article 12. However, the Court’s exceedingly deferential position as exemplified by this judgment represents the opposite extreme, and raises a number of concerns.
To begin, it is relevant to note that, today, the Philippines and the Vatican are the only two States in the World that have not legalized some form of divorce. In the Council of Europe, the Member States’ stances on divorce – regarding when and how it can be obtained – are diverse. Since divorce was legalized in Malta in 2011, however, the States all have one thing in common: divorce is legally possible in all 47 Council of Europe Member States. Against this background, the Court’s Article 12 case-law on divorce emerges as archaic and the extremely wide margin of appreciation granted to States becomes difficult to understand, wherefore the time seems ripe for a re-evaluation of the jurisprudence by the Grand Chamber.
As made abundantly clear by the Court’s case-law on the rights of same-sex couples, furthermore, Article 12 is not the only provision that protects partnerships: the right to respect for private and family life under Article 8 ECHR also pertains here. However, in the present context, the Court has resolutely held on to its 1986 finding that the interference with Article 8 ECHR resulting from the absence of a right to divorce is justified by two legitimate aims, which are “the protection of the rights and freedoms of others, namely the interests and well‑being of the applicant’s wife, and the protection of morals”; together, these aims are considered to counteract “the menace of arbitrary and unilateral terminations of marriages in a society adhering to the principle of monogamy” (Babiarz v. Poland, § 38). By referring to these aims without any further discussion and, inexplicably, without conducting its usual assessment under Article 8, the Court has effectively abdicated its responsibility to examine whether the interference with the applicant’s Article 8 rights is justified.
One problem raised by the failure to adequately take the Article 8 rights of the applicant – and of A.H. and their daughter – into account through a sound balancing exercise is that the Babiarz case might have had a different outcome if those rights had been adequately emphasized. This, in turn, invites inconsistency into the Court’s case-law. Moreover, the majority judgment relies on a number of problematic concepts without challenging or critiquing them. Thus, this case is underpinned by the stereotyped narrative of the philandering, selfish husband and the devoted, dependent wife, and by the idea of a monolithic “society adhering to the principle of monogamy” facing the “menace” of easy divorce. Unfortunately, the Court did not nuance or discuss these ideas.
There are a number of significant gaps in the Court’s protection of real, lived family relationships as they exist all over the Council of Europe – for example, its acceptance of forced divorce for people undergoing gender transition and the remaining blind spots in the Court’s protection of same-sex couples. In the present context, however, in addition to the self-evident human rights implications involved, there is also a unanimous European consensus concerning the permissibility of divorce, and it is regrettable that the Court is unwilling to update its jurisprudence to reflect this, or even to engage with the matter in depth.
 Antokolskaia Masha, ‘Divorce Law in a European Perspective’, in Jens M. Scherpe (ed), European Family Law, Volume III: Family Law in a European Perspective (Edward Elgar: Cheltenham 2016), 41-81, 71-72.
 Id., 68-79.
 Compare the Eurostat divorce rate statistics. For the law of Andorra, on which there appears to be no Eurostat data, see the Llei qualificada del matrimoni of 30 June 1995, 42 Butlletí Oficial del Principat d’Andorra of 2 August 1995, 875 et seqq., Arts. 42-43.
 Fineman Martha Albertson, ‘Implementing Equality: Ideology, Contradiction and Social Change – A Study of Rhetoric and Results in the Regulation of the Consequences of Divorce’, 1983 Wisconsin Law Review 789-886), 853 et seqq., 885.