A/HRC/31/37
Economic, Social and Cultural Rights has called upon States to legally recognize same-sex
couples.30
B.
Right to marry and to found a family
28.
The Universal Declaration of Human Rights (art. 16) and the International Covenant
on Civil and Political Rights (art. 23 (2)) affirm the right of men and women of full, or
marriageable, age to marry and to found a family. That right is expressly linked to the
principle of non-discrimination and applies to men and women without any limitation due
to race, nationality or religion. The principle of non-discrimination in that context is also
stated in the Convention on the Elimination of All Forms of Discrimination against Women
(art. 16 (1) (a)) and in the Convention on the Rights of Persons with Disabilities (art. 23 (1)
(a)).
1.
Right to freely choose a spouse and prohibition of forced marriage
29.
The Universal Declaration of Human Rights provides that marriage shall be entered
into only with the free and full consent of the intending spouses (art. 16 (2)). The same
provision is included in the International Covenant on Civil and Political Rights (art. 23
(3)), the International Covenant on Economic, Social, and Cultural Rights (art. 10 (1)), the
Convention on the Elimination of All Forms of Discrimination against Women (art. 16 (1)
(b)) and the Convention on the Rights of Persons with Disabilities (art. 23 (1) (a)).
30.
A logical corollary of the right to freely choose a spouse is the prohibition of forced
marriage, which especially affects women and girls. Forced marriages may take various
forms, such as an exchange or trade-off; they may be servile, levirate or contractual; or they
may be contracted through payment or preferment, all of which are considered practices
similar to slavery. Such marriages should not be recognized by the State as legally valid or
subsequently rectifiable.31 Similarly, international norms proscribe the forced dissolution of
the marriage bond, including subjecting the change of legal gender to the requirement of
dissolution of a previous marriage or civil partnership. 32
2.
Definition of marriageable age and prohibition of child marriage
31.
International and regional instruments are unanimous on the minimum age at which
the right to marry or to found a family may be exercised. The Convention on the
Elimination of All Forms of Discrimination against Women (art. 16 (2)), as well as the
Convention on Consent to Marriage, Minimum Age for Marriage and Registration of
Marriages (art. 2) require States to establish a minimum age for marriage in their domestic
legislation. The Committee on the Elimination of Discrimination against Women and the
Committee on Economic, Social and Cultural Rights have stated that the minimum age for
30
31
32
See E/C.12/BGR/CO/4-5, para. 17; E/C.12/SVK/CO/2, para. 10; the Committee’s general comment
No. 20 (2009) on non-discrimination in economic, social and cultural rights, paras. 26 and 31; and
A/HRC/29/23, para. 79 (h).
See Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and
Practices Similar to Slavery (1956), art. 1 (c); Committee on the Elimination of Discrimination
against Women, general recommendation No. 21(1994) on equality in marriage and family relations,
para. 16; and Joint general recommendation No. 31 of the Committee on the Elimination of
Discrimination against Women/general comment No. 18 of the Committee of the Rights of the Child
(2014) on harmful practices, para. 24.
See CCPR/C/IRL/CO/4, para. 7; also A/HRC/29/23, paras. 69-70 and 79 (i).
9
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