Abstract
This article deals with one of the aspects of a pluralistic society: the existence of informal marriages. These are marriages concluded in accordance with religious or cultural traditions that do not comply with the requirements of the formal secular legal order. Two aspects of those marriages will be discussed: primarily, whether and to what extent spouses in informal marriages should be regarded and protected by law as spouses, and secondly, whether spouses who are involuntary kept in their informal marriages should be released by and protected by formal law. With regard to both aspects the question will be raised whether human rights could and should serve as a means to offer spouses of informal marriages their desired protection. From recent case law both from the European Court of Human Rights and the national courts, it becomes clear that human rights have only recently and very cautiously started to demand a role in the informal legal orders.
Highlights
In order to enter into a valid marriage, states can and do prescribe the way in which a marriage must be concluded
It is well known that in multicultural and multireligious societies different groups of people will adhere to other ways of concluding a marriage than a civil one
An informal legal order exists within or next to the formal one. Within this informal order people marry in accordance with their cultural or religious traditions, after which for the spouses themselves as well as within the personal community such a couple are considered to be married
Summary
In order to enter into a valid marriage, states can and do prescribe the way in which a marriage must be concluded. An informal legal order exists within or next to the formal one Within this informal order people marry in accordance with their cultural or religious traditions, after which for the spouses themselves as well as within the personal community such a couple are considered to be married. Informal marriages are concluded if there is an impediment to enter into a formal marriage This can either be a legal impediment (e.g. because one of the spouses, often the man, is still married to another spouse) or a practical one (e.g. a lack of documents, especially in cases of migrants who experience difficulties in obtaining the required documents evidencing their personal status). Like Roma marriages, can often be justified by existing tradition
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