The Human Right to Common-Law Marriage

In April, I wrote a little rant about that month's CJEU and ECtHR case law. (Favour for a tweep, the - Dutch - text is here.) One of the cases that I broadsided was Van der Heijden v. the Netherlands, which I praised for "declining to introduce common-law marriage by judicial fiat. Now ignoring the fact that common-law marriage is by definition a judicial creation, the question remains whether that is the correct way to frame that case. It is certainly not the approach taken by the infinitely more knowledgeable Strasbourg Observers.

Some facts and other background:
Let me shamelessly plagiarise Strasbourg Observers for the facts.

One night a man was shot dead in a café and the police suspected A of being the shooter. They summoned van der Heijden, the long-time partner of A. and mother of his children, as a witness. She refused to testify however, arguing that the testimonial privilege accorded to spouses and registered partners also applied to her. The Regional Court subsequently ordered her detention for failure to comply with a legal order. She was kept in detention for 13 days in total. She eventually complained to the Strasbourg Court that the attempt to compel her to give evidence constituted a violation of her right to family life (Article 8 of the Convention).

Common-law marriage means, essentially, that people who live together as if they are married, and who hold themselves out to the world as spouses, are treated by the courts as married. As a legal institution, it was pretty rare to begin with, and now it's all but extinct, especially in practice.

With these two ingredients in place, it should be obvious what the connection is: the applicant, Van der Heijden, asked the Court of Human Rights to recognise a right to common law marriage for the purposes of spousal privilege. Obviously this is an extreme short-hand for what was going on; I was trying to squeeze as many references as possible into my 1500 word allotment. At the same time, I was also trying to save words by phrasing my summary of the holding in such a way as to imply as unsubtly as possible why I thought this was the correct result.

In the wake of having attended one too many womens studies classes, Ms. Timmer on Strasbourg Observers summarises her opinion of the ECtHR's judgement as follows:

Quite frankly, I find this area of case law baffling. When is a relationship worthy of legal recognition and protection? What is the decisive factor in determining whether the Court goes to the side of legal formalism or applicant-oriented realism? Is it the existence of a European consensus? The majority maintains that there is no consensus regarding testimonial privilege in Europe (par. 61). In a thorough discussion of the van der Heijden judgment (in French), Nicolas Hervieu points to the ‘malleability of the concept of European consensus’. Or, another option, is the real issue here the valorization of heterosexual marriage?

Now I can agree with this to a point. (Well, the first part. The valorization of heterosexual marriage can go frack itself as far as I'm concerned.) The Court's art. 8 case law is a mess in any number of ways, meaning that it fails the elementary requirement of being at least vaguely predictable. That said, I don't think this case is all that messy. Paragraph 61, for example, couldn't be clearer:

61. Turning to the case in hand, the Court first observes the wide variety of practices among Council of Europe member States relating to the compellability of witnesses (see paragraphs 31-36 above). Although the lack of common ground is not in itself decisive, it militates in favour of a wide margin of appreciation in this matter.

Not decisive, but not unimportant either.

Beyond that - and in art. 8 cases more generally - the problem is that that article is the most vague of all of the ECHR's basic freedoms. Behold: "Everyone has the right to respect for his private and family life, his home and his correspondence." Potentially, that one allows the Court to rewrite the rules on almost anything. Doing so, however, would fatally undermine the legitimacy of the Court, which is why the Court has generally backed away on art. 8 cases that really mattered. No right to abortion, no right to same-sex marriage, etc. (Compare this with the relative confidence displayed by the Court in the prisoner voting cases.) The question is simply one of how to get there. Emphasising realism or formalism depending on the desired outcome is one way. The tried and true method of the Margin of Appreciation is another.

To be sure, this is not an ideal situation, but it is not completely random either. There is a logic to the Court's general tendencies, it is just not a legal logic. Instead, a legal logic would require the Court to tread carefully in its art. 8 case law, slowly building from one case to the next. (Also a topic emphasised in my column.) In such a world - the Arcadia of lawyers - the applicant in Van der Heijden would still lose. There is simply no ECtHR precedent that is sufficiently on point to overcome what we might call the presumption of Convention-compatibility created by the lack of consensus among the European countries. Hence my praise for this judgement: the Court already does plenty of silly things with art. 8 when they think no one is looking. Here, for once, they were as modest as they are supposed to be.