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In debates over same sex marriage it is sometimes proposed that marriage be completely deinstitutionalised in favour of state recognised civil unions. This would not be a return to common law marriages, but for marriage to have no legal standing at all, and for "husband" and "wife" to have no more legal relevance than "boyfriend" or "girlfriend". "Marriage" would become an optional and voluntary social term for anyone who wants to use it.

The Universal Declaration of Human Rights says:

Article 16

(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Would deinstitutionalising marriage in this manner violate the UDHR? The declaration could be read as requiring states to institutionally recognise marriages, or only that they not have laws that would contravene these rights.

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The UDHR does not create enforceable rights. It is aspirational and not self-executing.

This said, calling a legally recognized relationship a "civil union" rather than a "marriage" does not inherently violate the UDHR any more than using the Mandarin or Swahili word for marriage instead of the English one would. A marriage is just a bundle of rights and responsibilities, the UDHR does not tightly constrain what must be included in that bundle, and it is surely the substance rather than the mere terminology that matters for determining if rights have been violated. Something fairly described as marriage must be available to all, but a rose by any other name would be just as sweet.

Civil law countries already distinguish between legal marriage, which basically is a "civil union" and religious marriage, which is deinstitutionalized.

  • Your last sentence is oversimplified, to say the least; there are many civil law countries (such as the UK) that have established churches. A religious marriage in such a church is fully legally binding irrespective of the State's non-involvement. – Tim Lymington supports Monica Jan 12 '18 at 9:36
  • @TimLymington The UK is a common law country, not a civil law country. In civil law countries such as France you need a marriage at city hall and may get a second one at the formerly established RC church. – ohwilleke Jan 12 '18 at 13:33

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