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Questions and Answers
What is the main factor the Court considers when determining de facto family ties?
What aspect of Article 8 of the European Convention on Human Rights grants flexibility to national authorities?
In cases before the European Court of Human Rights, who bears the burden of proof for issues within the scope of Article 8?
What event in 1970 led to an increase in acceptance of cohabitation without marriage and same-sex marriages?
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Which country was the first in the world to open marriage to same-sex couples?
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What is a key characteristic of the definition of marriage?
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Which of the following is a requirement for a valid marriage?
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What is the 'margin of appreciation' in the context of the European Convention on Human Rights?
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Who must justify the interference with the Article 8 right in cases before the ECtHR?
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What is the significance of the Brussels IIb Regulation in relation to the definition of marriage?
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Study Notes
European Convention on Human Rights (ECHR)
- The European Convention on Human Rights is also known as the Convention for the Protection of Human Rights and Fundamental Freedoms.
- Article 8 of the ECHR guarantees the right to respect for private and family life.
- Article 12 of the ECHR guarantees the right to marry.
- Article 14 of the ECHR prohibits discrimination.
European Court of Human Rights (ECtHR)
- The ECtHR has jurisdiction over Member States that are signatories to the European Convention on Human Rights.
- The ECtHR is part of the Council of Europe, which has 46 member states, including Greenland as part of Denmark.
Free Movement of Families within the EU
- EU citizens and their family members have the right to move and reside freely within the EU, regardless of sexual orientation.
- Challenges exist regarding the recognition of parenthood across different EU countries.
Role of Public Policy
- Public policy is a doctrine that addresses the principles underlying the operation of the legal system in a country or region.
- Public policy affects the entire population and concerns values that change and evolve over time.
- The law is most effective when it corresponds to general social norms.
Family Law
- Family life is an essential aspect of the right to respect for private and family life.
- The notion of family life is an autonomous concept, and the essential ingredient of family life is the right to live together.
- The concept of family can be defined in various ways, including:
- A married, civil partnered, or cohabiting couple with or without children, or a lone parent with at least one child who lives at the same address.
- A group of people related to each other, especially parents and children, whether by blood or through shared family names.
Comparative and International Family Law
- International family law entails rules for cross-border family relations and the body of international and (European) instruments and decisions of supranational courts that regulate family relationships.
- Comparative family law focuses on developments in various family law systems, comprising a general, instructive, and pointed comparison of different family law systems.
Legislative Framework
- The EU plays a significant role in legislating on family law matters with cross-border implications.
- The Court will consider de facto family ties, such as living together, when determining family relationships.
Private Life and Article 8 ECHR
- Private life encompasses multiple aspects of a person's physical and social identity.
- The interpretation of Article 8 ECHR grants flexibility to national authorities in fulfilling obligations under the ECHR, known as the "Margin of Appreciation".
- The degree of flexibility accorded to states in determining whether certain measures are necessary is subject to the terms provided by Article 8(2).
Burden of Proof in ECtHR Cases
- Applicants must prove issues within the scope of Article 8 and any interference.
- States must justify the interference with the Article 8 right in the terms provided by Article 8(2).
Adult Relationships
- Cohabiting without marriage has become increasingly accepted since 1970, leading to an increase in acceptance of cohabitation without marriage and same-sex marriages.
- The Netherlands was the first country to open marriage to same-sex couples on 1 April 2001.
- Marriage is a complex and dynamic institution, creating rights and obligations between persons, as well as between them and any resulting biological or adopted children.
- There is no definition of marriage, including in the new Brussels IIb Regulation.
- Capacity to enter into marriage requires the legal capacity to marry, which is a necessary condition for a valid marriage.
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Description
Explore the key aspects of the European Convention on Human Rights (ECHR) including the rights to private and family life, marriage, and prohibition of discrimination. Learn about the jurisdiction of the European Court of Human Rights and the member states of the Council of Europe.
