The right to marry and to form a family as a human right and the problem of “marriages of convenience” in Spain

Authors

  • Alfonso Ortega Giménez

Keywords:

Private law; human rights; marriage of convenience.

Abstract

The right to marry is a right inherent to personal autonomy, which is presented as a fundamental manifestation of the autonomy that every human being should enjoy. The private autonomy of the interests pursued by the contracting parties is manifested in the choice of the type of marriage they wish to celebrate, whether civil or religious and whether in Spain or abroad. This limit to private and family life falls within the scope of Article 16 of the Universal Declaration of Rights and Article
32 of the Spanish Constitution. Thus, according to what is regulated, all those who are not forbidden by law to marry and who freely assume it can contract marriage according to the norms of human rights and, therefore, the authenticity of these marriages is not in doubt, as is the case with “marriages of convenience” which pursue certain secondary, accessory or indirect effects of marriage, disregarding the central or essential effect of marriage, which is none other than marital cohabitation.
These “marriages of convenience” make it possible to avoid the rules that regulate the deadlines and general procedures, in order to benefit one of the parties, and are a clear form of fraud against the rules on Aliens and Nationality.

Published

2022-07-16