Francesco Pesce

Article 13 of the Institute of International Law Resolution on Human Rights and Private International Law: Marriages Based on the Free and Full Consent of Two Spouses

  • Abstract

Informations and abstract

Keywords: right to marry; child marriage; forced marriage; recognition of family statuses; balance of rights; public policy

Article 13 of the Resolution is devoted to a specific profile of the relationship between human rights and private international law. Included within the provisions devoted to personal statuses and family relations, it addresses the theme of marriage, affirming the basic principle that the bond must be founded on the spouses’ free and full consent, removed from any form of external conditioning. This also has an impact on the recognition of spousal status: as a matter of principle, the respect for fun-damental human rights requires that a refusal of recognition must be opposed whenever it emerges that the will of a member of the couple has been flawed, as happens in particular in cases of early and/or forced marriages. However, the rigidity of such an approach is tempered by an openness to case-by-case assessment: para. 3 provides that the valorisation of the possible interest of the ‘victim' in maintaining the status is exceptionally allowed. This approach seems to be acceptable, as it moves from a proper balancing of the fundamental rights at stake.

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