It is rare for the ECtHR, otherwise reputed for its judicial activism, to resist the temptation of de-constructing fundamental institutions such as marriage and family. But today it has happened: in the case of Babiarz v. Poland (application no. 1955/10), the Court has ruled that Articles 8 and 12 of the European Convention on Human Rights must not be construed as containing a right for the applicant to be divorced from his wife and married to another woman (with whom he already has a child) if his wife does not consent to, and if her behaviour does not justify, a divorce. In simpler words: there is no “right to divorce”.
The decisive passage of the judgment says this:
“The Court is well aware that the applicant had a daughter with his new partner, that he was apparently in a stable relationship and that the domestic courts had acknowledged a complete and irretrievable breakdown of his marriage. This, however, does not detract from that which is mentioned above. To contemplate otherwise would mean that a request for a divorce would have to be allowed regardless of the procedural and substantive rules of domestic divorce law, by a person simply deciding to leave his or her spouse and have a child with a new partner. While under Article 8, de facto families and relationships are protected, such protection does not mean that particular legal recognition has to be accorded to them. It has not been argued, let alone shown, that failure to obtain a divorce and the legal fiction of his continuing marriage prevented the applicant from recognising his paternity in respect of the child he had with A.H.
In the Court’s view, if the provisions of the Convention cannot be interpreted as guaranteeing a possibility, under domestic law, of obtaining divorce, they cannot, a fortiori, be interpreted as guaranteeing a favourable outcome in divorce proceedings instituted under the provision of that law allowing for a divorce.”