Marriage – heals or kills?
© Galyna Paliychuk
Master of Law
LLM Candidate in International Human Rights Law
Many psychologists emphasize that marriage has a beneficial effect on the health of spouses.
You can easily find a huge amount of articles approving this fact in medical magazines and internet blogs.
But what if there is a person with mental disorder(s) desiring to get married with healthy person, or if we have two persons with mental illnesses willing to tie the knot?
The Convention on the Rights of Persons with Disabilities (CRPD) was adopted nine years ago, in 2006. In Article 23 (1a) the right to marry was stated for “all persons with disabilities who are of marriageable age”. In April 2014 in its General Comment no.1 the CRPD Committee in para.8, interpreting the sense of Article 12, concluded that every disabled person has a legal capacity inter alia to get married and create family.
Unfortunately, for centuries mentally disabled people had not been having a legal capacity at all. Moreover, nowadays there are exist a lot of countries, where they still do not have it… E.g., Russia, Ukraine and all other post-Soviet republics.
Being “invisible”, this group of people were not a focus group for psychological and psychiatric research as “married”, just because it was impossible for them to be married. So, scientists did not have a chance to analyze much a behavior of these people in family life within the institution of marriage.
Based on the general principles of human rights and International law, our rights end where the rights of others begin. Thus, isn’t it unfair if healthy spouse is suffering from aggression of her/his mentally ill partner?..
Basing on the key symptoms and sequences, let’s analyze the situation of marriage, taking for our empirical experiment a person with schizophrenia.
First of all, schizophrenia is a chronic disorder, which means that a person can restrain it, for instance, by taking pills, but he/she will live with this disorder to the end of his/her life…
Secondly, schizophrenia has different stages, but on every stage, the person, who is suffering from it, loses the sense of reality.
Thirdly, sometimes this person could behave aggressively and cause a threaten for others.
This is not a full list of symptoms, but even so, we can only assume how all these issues could influence on marriage and family life...
However, in the past I was working with this target group a lot and remember one monitoring visit to the psychiatric boarding for women in Ukraine. Usually, in such kind of places the medical staff uses pills with bromine to calm down sexual desires of the wards. But the situation was different in that boarding… Once a month “girls” from that boarding had a date with male wards from the similar psychiatric boarding for men! Instead of feeding wards with pills, the boarding’s staff just showed them how to use condoms, and that people were absolutely happy! Indeed!
The European Court of Human Rights had a chance to сreate a precedent and make all people with mental disorders “happy in marriage”, but judges just have gone from a clear answer instead…
I mean a case Lashin v. Russia (application no. 33117/02, 22 January 2013).
Inter alia (unlawful detention and inability to have his legal capacity under Article 8 of the Convention) Mr. Lashin, who suffered from schizophrenia, complained that he had not been able to register a marriage with his fiancée, referring to Article 12 of the Convention (p.123).
But in p.124, the Court, instead of explicit answer that the person with mental disorder(s) has the right to marry under the Article 12 of the Convention, just referred to p.97 of its decision, stating that “the applicant’s inability to marry was one of many legal consequences of his incapacity status… primarily because of the same two major factors analyzed under Article 8, namely the deficiencies in the domestic decision-making process and the rigidity of the Russian law on incapacity”. And moreover, the Court unanimously concludes that “it is not necessary to examine separately the applicant’s complaint under Article 12 of the Convention”. But, the Court analyzes Article 8 within the category of “legal capacity” and not within the category of “marriage”. And even recognizing the violation of Article 8 in this issue, the Court just cleverly eludes to answer that there was a violation of article 12 as well!
What is interesting, the Court repeatedly mentions Article 12 of the CRPD, in particular, in p.97. By the way, yes, Russia is a Party State of the CRPD. As well as Ukraine. I mentioned this fact because it is not a usual practice for the ECtHR to cite almost in every paragraph a convention other than ECHR … Why does the Court do that? In my point of view, it is because of the absence of a proper precedent in the ECtHR’s practice, and because the Court tries to free itself from liability to create such precedent by shifting this responsibility to the CRPD.
To conclude with, I should notice that even regardless provisions of the GC no.1 of the CRPD Committee, “guaranteeing” mentally disabled people the right to marry, there are still a lot of interdisciplinary questions are arising, since it does not take into consideration the rights of another spouse...
In my opinion, this question is at stake and need an urgent academic and professional interdisciplinary analysis providing an effective solution.
Allowing or denying a mentally disabled person to marry - in both cases, we are walking on a fine line. There are no doubts for right to marry for people with physical disabilities, but mental disorders could progress and be quite dangerous not only for the disabled person or his/her spouse, children, but also for society. Moreover, giving a birth to children who will definitely have a genetic mental illness, is it right for future generation and for this child who is doomed to suffer?..
Probably, this was the main reason why the ECtHR implicitly refused to state violation of Article 12 of Convention in case Lashin v. Russia?..