Family and marriage

KEY FINDINGS

1.     All countries provide for civil marriage, which can be celebrated irrespective of the religion of the spouses. Civil marriages are entirely regulated by state law and religion does not play any role in their legal regulation.

2.     In some countries (Austria, Belgium, Estonia, France, Hungary, and Romania) the only valid marriage for the state is the civil one. In Belgium, France, and Romania civil marriage must be celebrated before the marriage celebrated according to the rites of a religion/belief.

3.     In some countries it is possible to perform a religious marriage that is valid for the state if certain conditions are fulfilled. Religious marriages can be legally recognized only insofar as they do not breach fundamental principles of the state legal order, inter alia on the minimum age of the spouses and the monogamous nature of the union.

4.     In countries where religious marriages are allowed, some RBMs must comply with more restrictive rules than others, since their religious ministers responsible for celebrating marriages must have been previously approved by public authorities (Cyprus, Denmark, Estonia, Finland, Italy, Sweden). 

5.     The dissolution of marriage (nullity and divorce) remains under the monopoly of state law, with the exception of Catholic marriages in Italy, Portugal, and Spain, where the nullity can be declared by the Church courts, whose decisions may (under certain conditions) be valid for the state.

6.     With the only exception of Western Thrace in Greece, inheritance is regulated by state law independently from the religion of the deceased. Similarly, dowry is not regulated by state law and religious rules have no relevance in the state legal system.

7.     In controversies over child custody, religious rules and principles are irrelevant, unless the religion in which the child has been raised is relevant for his/her physical and moral health.

8.     In all countries, adoption is regulated by state law. The religion of the child and the religion of the adoptive parents is not directly relevant. However, it can be considered as a contributing factor in determining the best interest of the adopted child.

9.     In all countries, irrespective of their legal recognition by the state, RBMs do not face any obstacle to performing the religious rites which mark an individual’s joining the RBM. In some countries, such as Denmark, some practices are subject to a lively public debate, as is the case of male children’s circumcision.

10.     RBMs may prescribe some rules concerning medical treatments that are to be respected by their members. If religious rules endanger the child’s life, parents are not entitled to have these rules respected by the public healthcare institutions where their children are treated (being the best interest of the child the guiding international standard in this field).

RECOMMENDATIONS

1.     Allow, in countries where it is not yet possible, the celebration of a religious marriage that can be valid for the state's legal system when it does not contradict its fundamental principles.

2.     Avoid discriminations among RBMs and between them and the majority Church in relation to the right to perform a religious marriage that is valid for the state.

3.     Repeal sanctions for ministers of religion and spouses who celebrate a religious marriage without a prior civil celebration.

INTERACTIVE INFOGRAPHICS

1 promotion of rights
0 respect of international standards
-1 restriction of rights
1 low equal treatment of RBMs
0 equal treatment of RBMs
0 no gap between religious majority and minorities
-1 high gap between religious majority and minorities
1 promotion of rights
0 respect of international standards
-1 restriction of rights
1 low equal treatment of RBMs
0 equal treatment of RBMs
1 promotion of rights
0 respect of international standards
-1 restriction of rights
0 no gap between religious majority and minorities
-1 high gap between religious majority and minorities

WHAT WE ARE TALKING ABOUT

Cluster A. Celebration of marriage (questions 1-3)

1.     Article 16.1 of the Universal Declaration of Human Rights (UDHR) declares that

Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family […] [UN General Assembly, A/RES/217(III), 10 December 1948].

This right is reaffirmed in the International Covenant on Civil and Political Rights (ICCPR, Art. 23) and in the European Convention on Human Rights (ECHR, Art. 12) and represents the basic rule regarding the celebration of marriage.

1.a In all EU countries it is possible to celebrate a civil marriage, that is a marriage that is regulated regardless of the religious affiliation of the bride and groom. Thus, the limitations on the right to marry established by many religions (particularly those that prevent marriage between believers of two different religions) do not affect the right recognized by Article 16 UDHR. In some countries, civil marriage is compulsory, i.e., it is the only marriage recognized by state law: of course, citizens are free to celebrate a religious marriage, which, however, has no effect in the state legal system. In other countries, which constitute the majority, it is possible to celebrate, instead of a civil marriage, a religious marriage that can produce legal effects for the state if the conditions that would have allowed the celebration of a civil marriage are met. Consequently, marriages that are valid under the law of a religion but do not meet these conditions (e.g., polygamous marriages or those celebrated between individuals who do not reach the minimum age for celebrating a valid marriage under state law) cannot obtain civil effects (see European Commission of Human Rights (ECtHR), Janis Khan v. United Kingdom, Application no. 11579/85, 7 July 1986). Both systems are acceptable according to international standards (see Council of Europe: ECtHR, Guide on Article 12 of the European Convention on Human Rights: Right to marry, 31 August 2022 (last updated), nos. 6-8) and states are not under the obligation to recognise legal effects to marriages entered into only in accordance to a religious rite (ECtHR, Şerife Yiğit v. Turkey, Application no. 397/05, 2 November 2010). However, the latter system, which gives citizens the right to choose between the celebration of a civil marriage and that of a religious marriage valid (under certain conditions) under state law, seems to better promote RBM rights since the celebration of legally valid marriages according to the rules of their religion constitutes for their members a means of effectively participating in public life with their identity. For this reason, a higher score in the P-index has been given to countries where this system is in place. As in other areas of the legal systems (religious instruction in public schools, for example), recognition of this right poses a problem of equal treatment since it is not always guaranteed equally to all religious organizations. These disparities are reflected in the E-index. Finally, the right to celebrate a religious marriage that, under certain conditions, is also valid for the state legal system, may be subject to the approval of the RBM representative who is in charge of celebrating it. In some countries state authorities merely approve the list of representatives sent to them by religious organisations, in others they perform a more pervasive control. In the latter case a slight lower score is given. 

1.b     A minority of countries where the celebration of civil marriage is compulsory also provide for sanctions for representatives of religions and individuals who celebrate a religious marriage that is not preceded by civil marriage. The demand that religious marriage be matched by a civil marriage has been deemed legitimate by the Human Rights Committee, according to which

[…] the right to freedom of thought, conscience and religion implies that the legislation of each State should provide for the possibility of both religious and civil marriages. In the Committee’s view, however, for a State to require that a marriage, which is celebrated in accordance with religious rites, be conducted, affirmed or registered also under civil law is not incompatible with the Covenant. […] [UN Human Rights Committee (HRC), CCPR General comment No. 19: Article 23 (The Family). Protection of the Family, the Right to Marriage and Equality of the Spouses, 27 July 1990, no. 4).

However, the imposition of sanctions may constitute a restriction on religious freedom and for this reason the Atlas has given a slightly negative score to the countries where these sanctions are in force. 

 

Cluster B. Annulment and dissolution of marriage (questions 4-4.3)

2.     In relation to dissolution and annulment of marriage, EU countries can also be divided into two groups. In most of them a marriage can be dissolved or annulled only through a decision of a state body. In some, civil effects are accorded to annulments or dissolutions pronounced by religious courts, always provided that the basic norms of the state legal system in this matter are respected. In no country is validity given to rulings by religious bodies that do not comply with these norms (e.g., to decisions allowing a husband to dissolve a marriage through repudiation of his wife). Thus, judgments and measures of religious bodies on annulment and dissolution of marriage that do not grant equal rights to the husband and wife cannot produce any effect in the legal system of the state.

The considerations made in relation to the different systems of marriage celebration and the scores given to the countries where they are in place also apply to the case of its dissolution or annulment.

 

Clusters C and D. Inheritance and dowry (questions 6-7.5)

3.     Equal treatment of spouses, without distinction of religion or sex, constitutes one of the main international standards in spousal relations, as set forth in Article 16.1 of the UDHR, according to which men and women "are entitled to equal rights as to marriage, during marriage and at its dissolution". This principle is reiterated in Article 23.4 of the ICCPR and is further specified, in relation to inheritance and dowry, by Article 16.1 of the Convention on the Elimination of All Forms of Discrimination against Women, which commits States Parties to ensure, on a basis of equality of men and women: [...] 

(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration [UN General Assembly, A/RES/34/180, 18 December 1979; see also no. 19 of the UN Human Rights Committee (HCR), CCPR General Comment No. 28: Article 3 (The Equality of Rights Between Men and Women), CCPR/C/21/Rev.1/Add.10, 29 March 2000]. 

In all EU countries these standards are ensured through rules regulating inheritance and dowry (where this institution is still governed by civil codes) in a way that is independent of the religious affiliation of the parties. As a result, the provisions of religious laws, which sometimes provide for differential regulations based on the religion or sex of the spouses, have no relevance to the state legal system.

 

Cluster E. Relations parents-children (questions 8-12.1)

4.     Rites of entry into a religious community often involve individuals of a very young age who are unable to validly manifest their will, as in the case of infant baptism or circumcision. The celebration of these rites is a manifestation of the right of parents to educate their children in the religion of their choice (see no. 4 of the UN Human Rights Committee (HCR), CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), CCPR/C/21/Rev.1/Add.4, 30 July 1993). Like all manifestations of the right to religious freedom, this too is subject to the limitations set forth in Article 18 of the CCPR and Article 9.2 of the ECHR and, more specifically, in Article 5.5 of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. The rite of male circumcision, which imposes on a minor's body the indelible mark of religious affiliation, is the subject of lively debate. To date, however, it is permitted in all EU countries, provided it is carried out in accordance with health regulations. Female circumcision (which, however, is not considered as a rite of entry into any religion), on the other hand, is prohibited in all these countries.

 

5.     The relevance that should be given to religion in choices regarding adoption and custody proceedings (in cases of parental separation or divorce) is not undisputed. The guiding principles in this field are the best interests of minors and the right that their choices be respected when they have reached the maturity to make them. When the child is not yet capable of manifesting his or her wishes, Article 20.3 of the Convention on the Rights of the Child (CRC) suggests that 

[…] due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background [UN General Assembly, A/RES/44/25, 20 November 1989; the same approach has been adopted by the ECtHR: see the case Kilic v. Austria, Application no. 27700/15, 12 January 2023). 

In relation to adoption, the UN Declaration of the General Assembly on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief states that 

In the case of a child who is not under the care either of his parents or of legal guardians, due account shall be taken of their expressed wishes or of any other proof of their wishes in the matter of religion or belief, the best interests of the child being the guiding principle [UN General Assembly, A/RES/36/55, 25 November 1981, Art. 5.4].

These indications are particularly relevant in the case of children belonging to a religious minority: the risk of them being educated in a religion different from the one in which they were raised is higher than in the case of children who were educated in the majority religion.

 

6.     Concerning parents’ refusal of medical treatment for their children, in all EU countries the guiding principle is the best interest of the child. For this reason, the refusal by parents of medical treatments necessary to save the life of their minor child is considered illegitimate, even if dictated by religious or conscience reasons. The problem has arisen especially in relation to Jehovah's Witnesses, who refuse blood transfusions on the grounds of their religious faith. In most European countries, in the event of a conflict between parents and health authorities, the decision is referred to the judicial authority, which normally rules in favour of the latter.

 

GUIDE TO READING DATA

This guide provides some keys to interpreting the three indices (P-index, E-index and G-index) built on the basis of the Atlas data.

 

P-index (States)

Marriage and family are areas of law where the principle "the same law applies to all" finds general application, much more extensively than in all other areas of law considered by the Atlas. This is particularly evident for the rules governing annulment and dissolution of marriage (cluster B), inheritance, and dowry (clusters C and D): in all the countries considered in the research the same regulation applies to all citizens, regardless of their beliefs and religious affiliation (in the case of annulment and dissolution of marriage there is a difference between majority and minority RBOs: see the section below devoted to G-index). These policy areas, which were once regulated by canon law and the laws of other religions, have not only been brought under the full control of state law but also regulated in forms that leave no room for the religion or belief professed by citizens (this statement does not apply to Greek Muslim citizens living in Thrace who, in some cases can avail themselves of the norms of Islamic law: since they are a relatively small minority, this difference does not significantly shift the score for Greece, and consequently the Atlas did not take it into account).

The same remarks also apply to the rules governing the relationship between parents and children (Cluster E). Child custody and adoption are regulated in essentially uniform terms by the legal systems of the EU countries: all adopt the best interests of the child as the guiding legislative and jurisprudential principle and give prominence to religion or belief only insofar as they affect the protection or promotion of this interest. But no country has rules favoring one religion over another (or religion over non-religion) when it comes to determining which parent a child should be entrusted to for adoption. Taking court decisions into consideration, some differences sometimes emerge. In the past, and in some countries perhaps still today, Jehovah's Witnesses have been discriminated against: but from the responses of the national legal experts it does not appear that this phenomenon has retained significant dimensions today.

The legal regulation of the EU countries is very similar in relation to the rites of entry into a religious or belief community and to the parental instructions regarding the medical treatment of children. Male circumcision, when performed on a minor, is the subject of lively debates especially in the countries of Central and North Europe: but none of them has enacted regulations prohibiting it or even indirectly preventing its performance. Indeed, the requirement that, in performing circumcision, all necessary conditions be observed to ensure the health of the child does not preclude the observance of the norms established by Jewish or Islamic law or by the law of other religions.

On the subject of health treatments, the point of reference of the legislation and case-law in the EU countries is again the best interest of the child. When parental directions are contrary to this interest to the point of seriously endangering the child’s health or life, the prevailing approach is to temporarily deprive the parents of parental authority and devolve it to an individual who authorizes the necessary medical interventions. This stance has proven particularly problematic for Jehovah's Witnesses, whose religion prohibits blood transfusions, and has given rise to numerous disputes that have most often been resolved in the sense indicated above. Jehovah's Witnesses have complained about the violation of their religious freedom and the lack of attention paid to health treatments other than blood transfusions without, however, succeeding in changing the trend of the courts in the EU countries.

As a result of this dominance of uniform standards, the only significant differences are found in the area of marriage celebration (cluster A). It is only in this area that state legal systems promote the rights of RBMs differently. In relation to the celebration of marriage, the countries considered in the research are divided into two clusters: countries that recognize only civil marriage as valid, and countries that also provide for the possibility of celebrating a religious marriage, which (under certain conditions) can be valid for the state's legal system (on this difference see more extensively the section “What we are talking about”, no. 1). The data show that the former promote RBM rights less than the latter: their score ranges from “0” (Austria and Hungary) to “-0.06” (Belgium, France and Romania) versus “0.22” (Croatia) to “0.14” (Greece). This result is due to the fact that the mandatory civil marriage provision meets international marriage standards but does not promote RBM rights; on the other hand, the right to celebrate a religious marriage that, under certain conditions, is also valid for the state constitutes a form of promotion (see for further comments the section “What we are talking about”, no. 1). Finally, the differences within one and the other group of countries are due to the fact that in some of the countries where civil marriage is compulsory the latter must precede the celebration of a religious marriage (see “What we are talking about”, no. 1) and in some where it is possible to celebrate a religious marriage with civil effects the assistance of an RBM representative is subject to a state authorization that may be more or less restrictive.

 

P-index (RBMs)

This index confirms a trend that has already emerged in other policy areas: the Christian Churches and, immediately after, the Jewish and Muslim communities enjoy the most rights; in the middle are Mormons, Jehovah's Witnesses and the Eastern religious communities; BOs, Scientology and the Sikh communities rank last.

 

E-index

The index measuring the equal treatment of RBMs in each state presents a peculiar feature: in some countries (Austria, Belgium, France, Hungary, Romania), all RBMs enjoy perfectly equal rights. These countries are those where the celebration of civil marriage is mandatory (Estonia falls into this group but allows a civil marriage to be celebrated by representatives of some RBMs; this explains why Estonia's E-index has different values from other countries in the same group). This ensures full equality for all citizens at the price, however, of not giving any public prominence to their religious affiliation. Countries where it is possible to perform a religious marriage that is valid under the state legal system are unable to guarantee an equally high level of equal treatment because in no country do all RBMs have the right to perform such a marriage.

It is thus confirmed, with particular clarity, what was already visible in the other policy areas: the more a legal system promotes the rights of RBMs, the more it is characterized by their unequal treatment (which does not necessarily constitute discrimination but, in some cases, can lead to this outcome). The promotion of RBM rights is always and inevitably selective because the de facto differences among them (the greater or lesser number of their adherents; the longer or shorter time they have been active in a country; the deeper or shallower gap between their beliefs and practices and the feeling of the majority of citizens; and so on) prevent their rights from being promoted equally.

 

G-index 

The index measuring the difference in rights between majority and minority religions/beliefs also follows the same trend. In countries where the only marriage that can produce effects in the state legal system is civil marriage, there is no difference between majority and minority religions because the rules that govern the latter also apply to the former. In the other countries, however, there is a gap that is deepest in Cyprus, Portugal, Italy, Poland, and Spain (in these three countries the majority Church tribunals have the right to pronounce marriage annulment judgments which can produce civil effects). In Greece, state courts do not dissolve a marriage celebrated according to the rites of the Orthodox Church and endowed with civil effects unless the marriage has already been dissolved by the ecclesiastical authority. However, this is a practice that has no definite legal basis and consequently it was not taken into account when scoring this country.

 

RESOURCES

Art. 23 of the International Convention on Civil and Political Rights (ICCPR) and art. 8 and 12 of the European Convention of Human Rights (ECHR) contain the most important provisions on marriage and family. An official interpretation of the ICCPR text is provided by the UN Human Rights Committee in the General Comment n. 19: Art. 23 (The Family). For the ECtHR case-law, see Council of Europe. European Court of Human Rights (2021). Guide on art. 8 of the European Convention on Human Rights (Right to respect for private and family life, home and correspondence) and Guide on art. 12 of the European Convention on Human Rights (Right to marry). An analysis of the ECrtHR case-law with a specific focus on RMs is provided by Clark B. (2017). Treading a Tightrope: The Fragility of Family and Religious Minority Rights in the Jurisprudence of the European Court of Human Rights, in Child & Family Law Quarterly, v. 29, 1.

The international reference text on  parent-child relationships is the Convention on the Rights of the Child. A detailed examination of this convention is contained in UNICEF, Implementation Handbook for the Convention on the Rights of the Child, Geneva 2007. Many General Comments of the Committee on the Rights of the Children (CRC) include a section on the preservation of religious and cultural values and traditions as part of the child identity. The rights of the child are also taken into consideration in art. 24 of ICCPR: on this article see General Comment n. 17: Art. 24 (Rights of the Child). For a description of the ECrtHR case-law see Council of Europe. European Court of Human Rights (2021). Guide on art. 9 of the European Convention on Human Rights (Freedom of thought, conscience and religion), pp. 41-46.

About medical treatments of children, the reference text is the Convention on Human Rights and Biomedicine (Oviedo convention), which deals with the rights of minors at art. 6. Specifically on the questions connected to the Jehovah’s Witnesses’ refusal of blood transfusions see Loix S., Henin P., Descamps O.S., Reusens I. (2019). Jehovah's Witnesses and transfusion: where do we stand in Europe? 

Information about how divorce, annulment of marriage, inheritance and dowry are regulated in the law of some EU states are available in the section “Family matters & inheritance” of the European e-Justice Portal 

A presentation of the legal regulation of marriage and family which is in force in some EU states can be found in Pintens, W. (ed.). IEL International Encyclopaedia of Law. Family and Succession Law, Wolters Kluwer. 

A section on religion and family law in each EU state is contained in Robbers G., Cole Durham W. (eds.). Encyclopedia of law and religion, Brill .

For an overview of the interplay between religion on the one hand and marriage and family on the other  see

Mair J., Örücü E. (eds.) (2011). The place of religion in family law: a comparative search, Cambridge, Intersentia

Mair J., The impact of religion on European family law, in Scherpe J. M. (ed.) (2016). European Family Law, vol. I, Glasgow, Edward Elgar Publishing

Shah P., Foblets M.-C. (eds.) (2014). Family, religion and law. Cultural Encounters in Europe, Abingdon, Routledge