SEPARATE OPINION, PARTLY DISSENTING AND PARTLY CONCURRING, OF JUDGE DE MEYER

(Translation)

I.   The impossibility for the first applicant to seek the dissolution of his 1952 marriage and the resultant inability of the first and second applicants to marry each other

1.   As the Court observes, in paragraph 50 of the judgment, these two questions cannot be separated: in fact, they come down to a single question, namely the first.

The fact that the first and second applicants are unable to marry each other so long as the first applicant ’ s 1952 marriage is not dissolved cannot, of itself, constitute a violation of their fundamental rights.

It is only the fact that the first applicant cannot seek the dissolution of his 1952 marriage that may constitute such a violation. It may, of itself, do so, as regards the first applicant, in that he is a party to that marriage. It may also do so, as regards the second as well as the first applicant, in that it necessarily means that neither of them can marry the other during the lifetime of the first applicant ’ s wife.

2.   In the present case, the facts found by the Commission are, basically, fairly simple.

The first applicant and the lady whom he married in 1952, in a Church of Ireland ceremony, separated by mutual consent in 1965, having recognised that their marriage h ad irretrievably broken down [1] . They entered into a separation agreement that regulated their own rights and also t hose of their three children [2] , who were born in 1956, 1959 and 1965 [3] . They have complied with their obligations under that ag reement [4] . Each of them, with the other ’ s consent, entered into a new relat ionship with another partner [5] : in the first applicant ’ s case, this relationship was established with the second applicant in 1971 and it led to the birth, in 1978, of the thir d applicant [6] .

Since divorce is forbidden in Ireland , the first applicant, apparently with his wife ’ s consent, sought advice as to the possibility of obtaining a divorce elsewhere. For this purpose he consulted lawyers in Dublin and in London , but he has not pursued the matter since they indicated that he could not obtain a divorce in England unless he was resident within the jurisd iction of the English courts [7] .

3.   These findings on the part of the Commission were not contested.

The respondent Government confined themselves to observing that the attitude of the first applicant ’ s wife and of their children towards the divorce which he wishes to obta in was not known for certain [8] .

This point would have merited clarification, but it is not decisive for the issue raised in the present case. This is because the sole question is whether the fundamental rights of the first and second applicants have or have not been violated in that, in the factual situation recalled above, the first applicant cannot request the dissolution of his 1952 marriage: if that were possible, his wife would of necessity have to be invited to participate in the proceedings, to the extent that she had not associated herself with the request, and the deciding authority would of necessity have to have regard to the interests of the children.

4.   Of course, the issue raised in the present case concerns only the civil dissolution of the marriage, since the latter, as a religious marriage celebrated in a Church of Ireland ceremony, cannot fall within the respondent State ’ s jurisdiction: it can only do so as a marriage recognised by that State as regards its civil effects.

5.   We are thus faced with a situation in which, by mutual consent and a considerable time ago, two spouses separated, regulated their own and their children ’ s rights in an apparently satisfactory fashion and embarked on a new life, each with a new partner.

In my view, the absence of any possibility of seeking, in such circumstances, the civil dissolution of the marriage constitutes, firstly and of itself, a violation, as regards each of the spouses, of the rights guaranteed in Articles 8, 9 and 12 (art. 8, art. 9, art. 12) of the Convention. Secondly, in that it perforce means that neither spouse can re-marry in a civil ceremony so long as his wife or husband is alive, it constitutes a violation of the same rights as regards each of the spouses and each of the new partners.

The absence of the aforesaid possibility is consonant neither with the right of those concerned to respect for their private and family life, nor with their right to freedom of conscience and religion, nor with their right to marry and to found a family.

In fact, it seems to me that in cases like the present the effective exercise of these rights may require that the spouses be allowed not only to apply to be relieved of their duty to live together but also to apply to be completely released in civil law from their marital ties, by means of legal recognition of their definitive separation [9] .

The prohibition, under the Constitution of the respondent State, of any legislation permitting the dissolution of marriage is, as seems already to have been recognised in 1967 by a Committee of that State ’ s Parliament, "coercive in relation to all persons, Catholics and non-Catholics, whose religious rules do not absolutely prohibit divorce in all circumstances" and "at variance with the accepted principles of religious liberty as declared at the Vatican Council and elsewhere". Above all, it is, as that Committee stated, "unn ecessarily harsh and rigid" [10] .

In what the Convention, in several provisions and notably those concerning respect for private and family life and freedom of conscience and religion, calls "a democratic society", the prohibition cannot be justified.

On more than one occasion, the Court has pointed out that there can be no such society without pluralism, to lerance and broadmindedness [11] : these are hallma rks of a democratic society [12] .

In a society grounded on principles of this kind, it seems to me excessive to impose, in an inflexible and absolute manner, a rule that marriage is indissoluble, without even allowing consideration to be given to the possibility of exceptions in cases of the present kind.

For so draconian a system to be legitimate, it does not suffice that it corresponds to the desire or will of a substantial majority of the population: the Court has also stated that "although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant p osition" [13] .

In my opinion, this statement must also be applicable in the area of marriage and divorce.

6.   The foregoing considerations do not imply recognition of a right to divorce or that such a right, to the extent that it exists, can be classified as a fundamental right.

They simply mean that the complete exclusion of any possibility of seeking the civil dissolution of a marriage is not compatible with the right to respect for private and family life, with the right to freedom of conscience and religion and with the right to marry and to found a family.

7.   I also believe that there is discrimination as regards the exercise of the rights involved.

Although it totally prohibits divorce within Ireland itself, the respondent State recognises divorces obtained in other countries by persons domiciled there at the time of the divorce proc eedings [14] .

Thus, Irish citizens who move abroad and stay there long enough for it to be accepted that they intend to remain there permanently escape their inability to obtain a divorce in Ireland .

This state of affairs is in unfortunate contradiction with the absolute character of the principle of indissolubility of marriage, in that the principle thus appears to warrant observance only in Ireland itself and not elsewhere.

The distinction so made between Irish citizens according to whether they are domiciled in Ireland itself or elsewhere appears to me to lack an objectiv e and reasonable justification [15] .

8.   Unlike the majority of the Court, I am therefore of the opinion that in the present case the first and second applicants rightly complain of a violation of their right to respect for their private and family life, of their right to freedom of conscience and religion and of their right to marry and to found a family, as well as of discrimination in the exercise of these rights.

II. The other aspects of the situation of the first and second applicants, independently of their relations with or concerning the third applicant

On this issue I consider, like the other members of the Court, that no fundamental right has been violated in the present case.

From the point of view of fundamental rights, the State has no positive obligation vis-à-vis couples who live together as husband and wife without being married: it is sufficient that the State abstains from any illegitimate interference.

It is only to the extent that children are born of unions of this kind, and of transient relationships also, that there may arise positive obligations on the part of the State concerning the situation of those children, including, of course, their relations with their parents [16] and with the latter ’ s families [17] .

Such obligations may likewise arise, to the extent that the interests of those children so require, as regards the mutual relations of their parents or the latter ’ s families.

In cases of this kind, it is therefore always a question solely of obligations concerning the situation of those children. This is particularly so in the present case.

III. The situation of the third applicant and the situation of the first and second applicants in their relations with or concerning the third applicant

1.   On this issue, I agree almost entirely with what is said in the judgment concerning the violation, as regards the three applicants, of the right to respect for private and family life.

However, it seems to me that it is not sufficient to say that the third applicant should be placed "in a position akin to that of a legitimate child" [18] : in my view, we ought to have stated more clearly and more simply that the legal situation of a child born out of wedlock must be identical to that of a child of a married couple and that, by the same token, there cannot be, as regards relations with or concerning a child, any difference between the legal situation of his or her parents and of their families that depends on whether he or she was the child of a married couple or a child born out of wedlock.

I also note that, as a daughter of the first applicant - who is still bound by his 1952 marriage -, the third applicant is a child of an adulterous union: this does not exclude the applicability in her case, as well as in that of any other child born out of wedlock, of the principles enounced in both the present and the Marckx judgments.

2.   I consider that in the present case the Court should, as in the Marckx case, have found not only a violation of the right to respect for private and family life but also a violation, as regards that right, of the principle of non-discrimination.

In my view, the latter violation arises from the very fact that, on the one hand, the legal situation of the third applicant, as a child born out of wedlock, is different from that of a child of a married couple and that, on the other hand, the legal situation of the first and second applicants in their relations with or concerning the third applicant is different from that of the parents of a child of a married couple in their relations with or concerning that child.

In this respect, the facts of the case thus disclose not only a violation of the right to respect for private and family life but also, at the same time, a violation, as regards that right, of the principle of non-discrimination.

I would observe, for the sake of completeness, that the principle of non-discrimination appears to me to have been so violated as regards the first and second applicants as well as the third applicant, and as regards those aspects of the legal situation of the persons concerned that do not relate to their succession rights as well as those aspects that do so relate.

IV. The just satisfaction claimed by the applicants

1.   Although I dissent from the majority as regards points 2, 3, 4 and 7 of the operative provisions of the judgment, I agree, in principle, with the Court ’ s decision on the applicants ’ claim for just satisfaction. However, my reasons are somewhat different.

The applicants are not the only victims of the situation complained of, a situation which affects, in a general and impersonal manner, everyone whose circumstances are similar to theirs.

In my view, the just satisfaction to be afforded to the applicants in such a case should normally be confined to reimbursement of the costs and expenses referable to the proceedings before the Commission and the Court and should not include compensation for material or non-pecuniary loss.

However, such compensation would be warranted if there were measures or decisions which, in the guise of provisions of general or impersonal application, had had the object or the result of affecting the applicants directly and individually. But that is not the situation here.

2.   As regards the quantum of the reimbursement, I agree, having regard to the majority ’ s decision on the merits of the case, with point 8 of the operative provisions of the judgment.

[*]  Note by the Registrar: The case is numbered 6/1985/92/139.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.

[1] Commission's report, § 34.

[2] Ibid., § 38 (b).

[3] Ibid., § 34.

[4] Ibid., § 38 (e).

[5] Ibid., § 35.

[6] Ibid., §§ 35 and 36.

[7] Ibid., § 38 (a).

[8] Observations of Mr. Gleeson at the hearing on 23-24 June 1986.

[9] See, mutatis mutandis, the Airey judgment of 9 October 1979 , A 32, § 33.

[10] "It can be argued, therefore, that the existing constitutional provision is coercive in relation to all persons, Catholics and non-Catholics, whose religious rules do not absolutely prohibit divorce in all circumstances.  It is unnecessarily harsh and rigid and could, in our view, be regarded as being a variance with the accepted principles of religious liberty as declared at the Vatican Council and elsewhere" (Report of the Informal Committee on the Constitution, 1967, § 126, cited in the Report of the Joint Committee on Marriage Breakdown, 1985, § 7.8.8, which document formed Annex 3 to the respondent Government's memorial of 28 November 1985).

[11] See the Handyside judgment of 7 December 1976 , A 24, § 49, and the Lingens judgment of 8 July 1986 , A 103, § 41.

[12] See the Young, James and Webster judgment of 13 August 1981 , A 44, § 63.

[13] Ibid., loc. cit.

[14] See §§ 19-21 of the judgment.

[15] See the judgment of 23 July 1968 in the case relating to certain aspects of the laws on the use of languages in education in Belgium , A 6, § 10.

[16] See the Marckx judgment of 13 June 1979 , A 31, § 31.

[17] Ibid., §§ 45-48.

[18] § 74 of the judgment.