Religion in marriage and family
- Religion in marriage
- Religion and children’s rights
- Applicable decisions
- Applicable international agreements
- State authorities responsible for the rights of the child
The freedom of religion in marriage and family relationships has legal protection both by the domestic and international law.
Applicable legal regulations and principles are defined both by the RA Constitution (Article 41, 29), the RA Family Code and the international treaties ratified by the RA, such as the UN International Covenant on Civil and Political Rights (Article 2, 26, 27), Convention for the Protection of Human Rights and Fundamental Freedoms (Article 1,14), Protocol No.12 to the mentioned Convention, adopted on 04.11.2000 (Article 1).
Religion in marriage
In the Republic of Armenia only the marriage registered in the Civil Acts Registration Agency is legally recognized.
Marriage relationships are regulated by the RA Law on Civil Status Acts Registration.
Although Article 9 of the RA Law regarding the relationship between the Republic of Armenia and the Holy Armenian Apostolic Church states that the Republic of Armenia recognizes marriages and divorces performed according to the canonical rites of the Holy Armenian Apostolic Church in accordance with the stipulations of an agreement signed by the Republic of Armenia and the Holy Armenian Apostolic Church, in fact, no such agreement has been signed between the Government of the Republic of Armenia and the Holy Apostolic Armenian Church thus far.
Legislative protection against religious discrimination is guaranteed to persons concluding marriage; in particular Article 29 of the RA Constitution guarantees prohibition of discrimination where it is stated, inter alia, that discrimination based on religion is prohibited.
In particular, point 5 of Article 1 of the RA Family Code guarantees an important principle for spouses and individuals subject to the family relationships, and that is: during marriage conclusion and in family relationships any discrimination on the basis of religion is prohibited.
It follows from the RA legislative regulations that differences in religious practice of persons concluding marriage cannot be regarded as a ground for refusal to conclude the marriage, because the RA Family Code exhaustively defines the barriers to marriage and no barrier or prohibition on the ground of religion is listed in there (Article 11).
Thus, in the RA marriage conclusion and state registration thereof cannot be prohibited by any person or state body by reason of religious or other beliefs. The marriage registration authority does not have the right to refuse to accept applications submitted by persons concluding marriage on the ground of their different religious affiliations.
The prerequisites for marriage are mutual consent and the attainment of marriageable age. The minimum age at which a person is allowed to marry is established to be at least 18 years of age, except when a person can marry at the age of 17, with the consent of the parents, foster parents or guardians, as well as at the age of 16 with the consent of the parents, foster parents or guardians, while the other person entering into marriage is at least 18 years old.
The establishment of the mentioned minimum age for marriage by legislation is conditioned by the customs of ethnic minorities, since some ethnic minorities accept early marriages.
Religion and children’s rights
Family relationships in the RA are under the special protection and care of the state.
According to point 5 of Article 1 of the RA Family Code, in family relationships discrimination on the ground of religion is prohibited.
Family being the natural and basic unit of the society, the basis for preservation and reproduction of the population, as well as motherhood and childhood, are under the special protection and care of the state. According to the mentioned legal regulation, the state guarantees the primary protection of children's rights (Article 16).
By the Constitutional Amendments of 2015 for the first time the Protection of Rights of the Child has been separately enshrined as a constitutional norm under Article 37. In particular, by part 2 of the Article it was stipulated that in matters concerning the child, the best interests of the child shall be a primary consideration.
Sufficient for the protection of rights of children against religious intolerance legal and effective measures have been introduced in the Republic of Armenia. In particular, according to the RA Law on the Rights of the Child, children as individual subjects of family relationships, have the right to freedom of thought, conscience and religion (Article 10), which also includes the freedom to change their religion or beliefs.
The RA Law on the Rights of the Child defines not only the child’s right to freedom of religion, but also the equality of children, regardless of the religion of their parents or other legal guardians (Article 4). This is a very important principle enshrined in domestic law, which provides children with double protection, preventing not only discrimination based on their religion, but also discrimination based on the religion of their parents or legal guardians.
Such legal regulation of the principle of equality allows children with different religious beliefs to equally enjoy all social guarantees and means of protection provided by the state.
The views, beliefs and opinions of the child must be appropriately respected in accordance with the age and maturity of the child. Every child has the right to freely express his/her views, seek, receive and impart ideas and information through any means of communication.
In combination with the aforementioned rights, children have the full right to freely express their religious beliefs, openly express their personal opinion regarding religion, which when protecting children's rights must be taken into account by all state and non-state structures.
The child's right to freedom of religion and expression of beliefs may be restricted only by law if it is necessary, inter alia, for protection of health, moral development of a child.
Moreover, according to Article 10 of the RA Law on the Rights of the Child, the participation of a child under the age of 16 in religious organizations without the consent of a parent or other legal representative is prohibited.
In other words, the prohibition on the participation of a child under the age of 16 in religious organizations is not absolute, since the legislation allows the participation of a child under the age of 16 in religious organizations with the consent of a parent or other legal representative.
This regulation fully complies with the right to freedom of religion.
According to point 7 of Article 1 of the RA Family Code, the Republic of Armenia has assumed a positive responsibility for ensuring the best interests of the child in all actions towards children. Specifying actions taken to ensure the best interests of the child, among other things the child's spiritual and religious ties which are considered a criterion for the effective realization of the child's rights and the child's development should be separated.
Establishment of this principle is crucial for the child. In parent-child relationships both the courts and other state bodies, as well as private institutions protecting children's rights, put the best interests of the child at the core of any child-related problem, and any situational issue is resolved within the context of the best interests of the child. Various factors and elements serving the interests of the child (such as the child's mental and physical needs, the importance of communication with parents and family members, cultural, linguistic, spiritual or religious ties, etc.) which also include the child's spiritual and religious ties, are separated in the best interests of the child.
The child's best interest is also determined in specific legal relationships, such as adoption (Article 112), choice of a foster family (Article 137), organization of care and rearing of children deprived of parental care (Article 111), etc.
In addition, the RA Family Code specifically establishes that when organizing the procedure of accommodation of a child deprived of parental care for care and rearing in foster families, medical or educational institutions, or social protection organizations, inter alia, the child’s religious background should be taken into consideration.
With this legal regulation, the legislature not only reaffirmed the right to freedom of religion for vulnerable children (children deprived of parental care), but also ordained clear obligation to consider the child's religious background while rearing the child in foster families and institutions, as well as rearing the child in accordance with the child’s religious affiliation and ensuring the child's right to freedom of religion.
Decisions of the RA Court of Cassation
With regard to family relationships the RA Court of Cassation has established a stable judicial practice in the direction of applying the concept of "the best interests of the child".
By decision ԵԱԴԴ/1513/02/08 of the RA Court of Cassation it was established that in the process of realizing and protecting the rights of the child, the Republic of Armenia is obliged to proceed only from the best interests of the child.
Decision ԵԱՔԴ/1688/02/08 of the RA Court of Cassation refers to the concept of the "best interests of the child" in case of absence of mutual agreement of the spouses regarding the decision who the child will live with after the divorce. The court has established that in case of absence of an agreement between the spouses, the court must resolve the issue "proceeding from the best interests of the child", according to which when determining the place of residence of the child in case of separate living of the parents (in different countries), the court must take into consideration the place of residence of the child predetermined by the parents, the age, the place of education, other circumstances that justify the child’s attachment to each of the parents and their country of residence, as well as a possible negative impact on the child's mental, spiritual and moral development.
Decision ԵԱՆԴ/4073/02/14 of the RA Court of Cassation emphasized that parental rights, including the right of a parent living separately from the child to communicate with the child, cannot contradict the interests of the child and the implementation of that rights must not harm the interests of the child. In fact, in any dispute over parental rights of a parent living separately from the child, the court must take into account the best interests of the child, in terms of the impact that the measure used by the court in resolving the dispute will have on the interests of the child, in particular, on the child’s mental, spiritual and moral development and upbringing.
Decision ԵԱՔԴ/0474/02/11 of the RA Court of Cassation expressed a legal position on the priority of the best interests of the child when considering cases related to the rights of the child.
Decisions of the RA Constitutional Court
Referring to the concept of the “best interest of the child”, in its decision № ՍԴՈ-919 (dated 05.10.2010) the RA Constitutional Court expressed its position on the concept of "interest of the child" in family relationships, which has been promoted to the level of generally recognized principle of international law and is an independent and fundamental principle of Family Law.
Decisions of the European Court of Human Rights
By its decisions the European Court of Human Rights expressed the following positions in relation to the best interest of the child:
- When dealing with disputes concerning the care and upbringing of a child, the courts must be guided by the best interests of the child and when resolving disputes by the competent state bodies, including the courts, the child's best interests, the assessment of which depends on the circumstances of a particular case, should be of crucial importance (see v. Finland № 18249/02, 24 March 1988, Olsson v. Sweden Case Decision)
- Articles 8 of the Convention prohibits parents from taking actions in their own interests that may harm the health and development of the child. Moreover, parental rights cannot be exercised against the rights and best interests of the child and in every dispute over the exercise of parental rights by a parent living separately from the child, the task of the court is to find out the best interests of the child, establishing a reasonable balance between parental rights and the best interests of the child (see Johansen v. Norway 07 August 1996 point 78 Case Decision).
Thus, due to the large number of precedents and legislative norms in both international and domestic law, there are effective legal tools for protection of children's rights on religious grounds.
Applicable international agreements
The rights of children and the tools for their protection are also enshrined in the UN Convention on the Rights of the Child ratified by the Republic of Armenia, according to which the states parties to the Convention recognize and declare that everyone is entitled to all the rights and freedoms set forth in the Universal Declaration of Human Rights, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (Paragraph 3 of the Preamble)
According to Article 3 of the Convention, the best interests of the child are given the primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies.
The UN Convention on the Rights of the Child clearly sets forth the following obligations for states parties, including the Republic of Armenia:
- to respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind and irrespective of the child's or his or her parent's or legal guardian's religion (Article 2)
- to take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the expressed beliefs of the child's parents, legal guardians, or family members
- to respect the child's right to preserve his or her identity, and where a child is illegally deprived of some or all of the elements of his or her identity, - to provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity (Article 8).
The child's identity, inter alia, includes his or her religious identity and background, ethnic origin, beliefs, which were detailed by the Committee on the Rights of the Child in General Comment 14 to the UN Convention On the Right of the Child.
The Committee on the Rights of the Child has commented on each provision of the Convention. In these comments, the child's identity is recorded as a criterion for assessing the best interests of the child, and the child's religion and beliefs are also separated as the elements of the child's identity. In particular the Committee points out the following:
«,,,» b/ The child's identity
Children are not a homogeneous group and therefore, when assessing their best interests, such characteristics as sex, religion, national origin, religion and beliefs, cultural values, personality must be taken into account.
Although children and young people share basic universal needs, the expression of those needs depends on a wide range of personal, physical, social and cultural aspects, including their evolving capacities. The right of the child to preserve his or her identity is guaranteed by the Convention (Article 8) and must be respected and taken into consideration in the assessment of the child's best interests.
Regarding religious and cultural identity, for example, when considering a foster home or placement for a child, due regard shall be paid to the child’s upbringing, his or her ethnic origin, religious and cultural background, native language (Article 20, paragraph 3) as well as the child’s identity; and when making a decision, when assessing and determining the child's best interests, these specific aspects must be taken into consideration. The same applies in cases of adoption, separation from or divorce of parents.
Thus, the right of the child to preserve his or her identity is guaranteed by Article 8 of the Convention, and in each case when the child is at risk of losing his or her identity (including religious identity or background) the state is obliged to take actions for quick restoration thereof.
State authorities responsible for the rights of the child
- National Commission of Child Rights Protection
- Family, women and children protection divisions of marz administrations
- Children and Social Protection Department, Family, women and children's rights protection division of Yerevan Municipality
- Guardianship and trusteeship bodies