Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30309/96

by K.M.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 9 April 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 22 December 1995

by K.M.against the United Kingdom and registered on 27 February 1996

under file No. 30309/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1949. He is a naval

officer and resides in Middlesex.

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows:

On 14 February 1994 the applicant petitioned for divorce. On

3 April 1994 his wife cross-petitioned. On 3 June 1994 the applicant,

with the court's consent, withdrew his petition and the divorce

proceeded on an undefended basis on the cross-petition of the

applicant's wife.

On 29 July 1994 the Brentford County Court decreed that the

applicant's marriage should be dissolved unless sufficient cause was

shown within six weeks why the court's decree should not be made

absolute (Decree Nisi).

On 16 September 1994 the applicant applied for Decree Absolute

of divorce and the Brentford County Court granted his application on

20 September 1994.

On 29 September 1994 the applicant re-married.

On 11 October 1994 the same County Court refused an application

by the applicant's ex-wife to have the Decree Absolute set aside. The

applicant's ex-wife appealed.

On 17 May 1995 the Court of Appeal rescinded the Decree Absolute

on the ground that, under section 9 para. 2 of the Matrimonial Causes

Act 1973, it was not open to the applicant to apply for Decree Absolute

until three months after the earliest date on which his ex-wife, who

was the person to whom Decree Nisi had been granted, could have made

such an application. According to section 1 para. 5 of the Matrimonial

Causes Act, the latter could have applied for Decree Absolute six weeks

and one day after Decree Nisi had been granted. The Court of Appeal

also refused the applicant leave to appeal to the House of Lords.

In his concurring judgment the Justice Thorpe said "The rule is

easily understood. Practitioners know where they stand. Instances in

which court staff make the elementary mistake that was made in this

case are fortunately rare. Accordingly there seems to me to be no

practical argument for reconsidering (this) rule. Despite the passage

of time the considerations that hen applied have not substantially

changed. Many practitioners have applications for ancillary relief that

are not finally determined until long after the decree nisi. For many

reasons they are generally loath to lose their marriage status until

financial claims have been settled. If they are to lose that protection

it should only be in the exercise of a judicial discretion after they

have had a proper opportunity to present their opposition."

Leave to appeal was refused by the House of Lords on 24 October

1995. Decree Absolute was obtained on 14 August 1996. The financial

claims arising from the applicant's first marriage were not settled

until 12 December 1996.

COMPLAINTS

1. The applicant complains under Article 8 of the Convention that

the decision of 17 May 1995 of the Court of Appeal rescinding the

Decree Absolute interfered with his second marriage. He submits that,

although the interference was in accordance with domestic law,

section 9 para. 2 of the Matrimonial Causes Act 1973 is not necessary

in a democratic society under Article 8 para. 2 of the Convention.

2. The applicant also complains under Article 14 taken in

conjunction with Article 12 of the Convention that he was subjected to

discrimination in the enjoyment of the right to marry as a result of

his being the defendant and not the plaintiff in the proceedings.

THE LAW

1. The applicant complains under Article 8 (Art. 8) of the

Convention that the decision of the Court of Appeal rescinding the

Decree Absolute amounted to an unjustified interference with his family

life.

Article 8 (Art. 8) of the Convention, insofar as relevant,

provides as follows:

"1. Everyone has the right to respect for his ... family life

...

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The Commission considers that the applicant's relationship with

the woman he "married" on 29 September 1994 amounts to family life

within the meaning of Article 8 (Art. 8) of the Convention,

independently of whether this "marriage" was valid under domestic law.

The Commission also has no reason to doubt that the applicant was in

good faith when he concluded this second "marriage", believing that his

first marriage had been finally dissolved by the Brentford County Court

on 20 September 1994. However, on 17 May 1995 the Court of Appeal

rescinded the above decision of the Brentford County Court and, as a

result, the applicant, through no fault of his own, found himself in

a bigamous situation.

Even assuming, however, that the decision of the Court of Appeal

amounts to an interference with the applicant's right to respect for

his family life under Article 8 (Art. 8) of the Convention, the

Commission considers that this interference is in accordance with the

second paragraph of that provision. The Commission notes in this

connection that the applicant does not dispute that the Court of Appeal

rescinded the Decree Absolute of 20 September 1994 in order to correct

a mistake of national law committed by the Brentford County Court and,

as a result, the presumed interference was "in accordance with the

law".

Moreover, the Commission considers that this interference pursued

a legitimate aim under Article 8 para. 2 (Art. 8-2) of the Convention

and in particular "the protection of the rights of the others", since

the Brentford County Court had granted the applicant's application for

Decree Absolute in breach of a national rule which prescribed that it

was not open to the applicant to apply for Decree Absolute until three

months after the earliest date on which his ex-wife, who was the person

to whom Decree Nisi had been granted, could have made such an

application.

Finally, the Commission notes that, by its decision of

17 May 1995, the Court of Appeal sought to rectify a mistake concerning

a national rule which enabled practitioners to rely on clear law and

negotiate or litigate financial claims ancillary to the divorce

proceedings in reliance on the relevant time limits. Moreover, the

applicant is not, in any event, prevented from regularising his

situation after Decree Absolute was finally obtained on 14 August 1996.

It follows that, taking into consideration the domestic margin of

appreciation, it has not been established that the interference was not

"necessary in a democratic society".

As a result, no appearance of a violation of Article 8

(Art. 8) is disclosed and this part of the application must be rejected

as manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains under Article 14 taken in conjunction

with Article 12 (Art. 14+12) of the Convention that he was subjected

to discrimination in the enjoyment of the right to marry.

Article 12 (Art. 12) of the Convention provides that "Men and

women of marriageable age have the right to marry and to found a

family, according to the national laws governing the exercise of this

right."

Moreover, Article 14 (Art. 14) of the Convention provides that

"The enjoyment of the rights and freedoms set forth in this Convention

shall be secured without discrimination on any ground such as sex,

race, colour, language, religion, political or other opinion, national

or social origin, association with a national minority, property, birth

or other status."

The Commission recalls that if national legislation allows

divorce, which is not a requirement of the Convention, Article 12

(Art. 12) secures for divorced persons the right to re-marry without

unreasonable restrictions (Eur. Court HR, F v. Switzerland judgment of

18 December 1987, Series A no. 128).

The Commission notes that the applicant was temporarily prevented

from exercising his right under domestic claw to re-marry because the

Court of Appeal rescinded a County Court decision purporting to

dissolve the applicant's previous marriage on the ground that that

decision was wrong in law. The Commission considers that this does not

in itself disclose an appearance of a violation of Article 12

(Art. 12) of the Convention, since the right to marry is to be

exercised "according to the national laws" and the limitation

introduced does not restrict or reduce the right in such a way or to

such an extent that its very essence is impaired (Eur. Court HR, F v.

Switzerland judgment of 18 December 1987, Series A no. 128, p. 16,

para. 32). A limitation requiring compliance with the domestic law

requirement that there should be a valid dissolution of a prior

marriage does not impose unreasonable restrictions on the right to re-

marry. Finding, however, that no appearance of a violation of Article

12 (Art. 12) taken on its own is disclosed does not conclude the

Commission's examination of this part of the application.

A measure, such as a temporary hindrance in the exercise of the

right to re-marry as falling within the ambit of Article 12 (Art. 12)

might, nevertheless, infringe Article 12 when read in conjunction with

Article 14 (Art. 12+14) of the Convention if it were of a

discriminatory nature (Eur. Court HR, Belgian Linguistic judgment of

23 July 1968, Series A no. 6, p. 33, para. 9). In this connection the

Commission notes that the national law which had not been respected in

the applicant's case made a distinction between the plaintiff and the

defendant in a divorce action insofar as the time-limit for applying

for Decree Absolute was concerned. Even assuming, however, that this

amounts to differential treatment in the enjoyment of the right to re-

marry, the Commission considers that it does not lack an objective and

reasonable justification.

Although the law appears to favour one of the parties by giving

it a period of three months within which it has the sole right to elect

whether and when to apply for Decree Absolute, the party favoured is

the plaintiff, i.e. the person who initiated the divorce action and who

has the primary interest to obtain such a Decree. Moreover, the law

does not leave the other party, i.e. the defendant, without protection

against abuses since it gives him or her the right to apply for Decree

Absolute after the expiration of the three-month period. The upholding

of the requirements of national law contributes to certainty in the

rule of law. It follows that no appearance of a violation of Article 14

of the Convention taken in conjunction with Article 12 (Art. 14+12) is

disclosed.

This part of the application must be, therefore, dismissed as

manifestly ill-founded in accordance with Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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K.M. v. THE UNITED KINGDOM

K.M. v. THE UNITED KINGDOM

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