ECtHR: Greek authorities should not have annulled man’s marriage to ex-wife’s sister



A couple whose marriage was annulled by the Greek courts because the husband had previously been married to the wife’s sister suffered a violation of their article 12 rights, the European Court of Human Rights (ECtHR) has ruled.

Applicants Georgios Theodorou and Sophia Tsotsorou married in 2005, four years after Athens Regional Court dissolved Mr Theodorou’s marriage to her sister, PT.

Mr Theodorou married PT in 1971 and had a daughter with her, but they separated in 1996, dissolved their marriage in 2001 and were issued with a divorce certificate in 2004.

In 2006, PT complained to the public prosecutor’s office about her ex-husband’s marriage to her sister, pleading nullity on the grounds of kinship by marriage between the two spouses.

In 2010, Athens Regional Court annulled the marriage on the basis of Article 1357 of the Greek Civil Code (CC), which prohibits, in particular, marriage between persons related by collateral descent up tot he third degree.

In its decision, the court pointed out that the applicants were second-degree relatives by collateral descent, and that Greek law prohibited their marriage for reasons of decency and respect for the institution of the family.

An appeal by the applicants was dismissed, and their marriage was definitively annulled by the Court of Cassation in June 2015 following the dismissal of their appeal on points of law.

The applicants brought the case to the European Court of Human Rights in November that year, arguing that they had suffered a violation of their right to marry under article 12 of the European Convention on Human Rights.

In making its decision, the Chamber of seven judges noted firstly that there was a European consensus against an impediment to the marriage of former sisters-in-law and brothers-in-law, with only two other countries – Italy and San Marino – having introduced such an impediment, and even then not making it absolute.

Secondly, the applicants had not faced any obstacles prior to entering into their marriage and the national authorities had raised no objections. Furthermore, Greek law laid down a series of procedural requirements before a marriage could be concluded. In particular, persons intending to marry were required to announce their intentions publicly. No objections had been raised to the applicants’ marriage after the publication of the relevant announcement.

PT had not complained to the prosecutor about the marriage until approximately one year and five months after it had taken place, and the prosecutor had only applied to the first-instance court seven months later, that is, two years after the marriage.

Thirdly, the relevant authorities were required to verify that the legal conditions had been met to allow an intended marriage to be contracted, and they would issue a marriage licence only if they considered that those conditions had been met. In the present case, the relevant authorities had not expressed any doubts whatsoever before issuing this licence. The question of the marriage’s validity had been raised only subsequently, and the applicants had enjoyed both the legal and social recognition of the relationship resulting from their marriage and the protection afforded solely to married couples for more than ten years.

Fourthly, with regard to the Greek government’s arguments concerning “biological considerations” and the risk of confusion, the court noted that those problems did not arise in the present case. It was not clear what exactly those biological considerations involved, or the practical risk of confusion preventing the applicants’ marriage, given that they were not blood relatives and had not had children together.

Furthermore, with regard to the government’s argument that there existed a social need for communication between the members of a family and the outside world, the court observed that the government had not specified how the prohibition in question could assist in or serve such communication.

Fifthly, the applicants were currently deprived of all the rights afforded to married couples, which they had nonetheless enjoyed for ten years.

In consequence, the court held that the annulment of the applicants’ marriage had disproportionately restricted their right to marry to such an extent that the very essence of that right had been impaired. It therefore found that there had been a violation of article 12.

Greece was ordered to pay the applicants jointly €10,000 in respect of non-pecuniary damage and €4,120.79 in respect of costs and expenses.



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