"It is impossible to achieve a solution to some issues only by legal methods"

Proposals to amend the Family Code of the Republic of Azerbaijan, providing for certain restrictions, including the prohibition of marriages between blood relatives in connection with genetic diseases they generate or spread were discussed at a meeting of the Parliamentary Commission on Family, Women and Children. Thus, marriage is prohibited between: children of brothers and/or sisters who have a common biological grandfather and/or grandmother, as well as between cousins who have a biological relationship. It was noted that in Azerbaijan, as well as in part of the world's population, the risk of genetic diseases in children born in incestuous marriages is very high. It is to solve this problem that Article 12 of the Family Code (factors preventing marriage) provides for the approval of norms preventing marriage between: close relatives; children who share a biological grandfather and/or grandmother, as well as between cousins and cousins who are biological relatives.

In short, marriages between cousins may be prohibited in Azerbaijan.

According to the Ministry of Justice, if 2,363 closely related marriages were registered in Azerbaijan in 2021 (with 204 divorces), then in 2022 – 25,429 (608 divorces), but in 2023 – already 1,935 such marriages.

In the same year, 2022, the most similar marriages took place in Baku (742), in the Mil-Mugan region (296), in the Lankaran-Astara zone (274), in Karabakh (226) and Absheron-Khizi district (186).

The State Committee on Family Problems Scientific studies has confirmed that children born in consanguineous marriages have an extremely high risk of genetic diseases: "If in a marriage between unrelated couples the risk of having children with disabilities is 2-4%, then in consanguineous marriages this risk increases to 4-8%."

Lawyer Vafa Rustam answered ASTNA's questions in connection with the expected changes in the Family Code on Related Marriages.

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Question: According to the expected amendments to the Family Code, which provide for the establishment of certain restrictions, the conclusion of marriages between blood relatives may be prohibited due to the increased risk of genetic diseases. Do you think these changes are normal?

Answer: In world practice, when making any changes to legislation, an assessment of their effectiveness is used as one of the best methods. It is carried out during the preparation of project proposals in order to generally see how appropriate and productive the innovations introduced into the legislation are in terms of achieving the set goal, saving resources, taking into account their side effects, etc.

Unfortunately, in our practice, such surveys and assessments are not carried out, at least there is no such document presented to the public. As a result, the changes being made are more based on the opinion of experts.

The current law is being adopted to remove concerns about the health of children who will be born in related marriages. And the proposed proposal cancels the official registration of marriages between relatives, that is, it does not apply to informal relationships.

Question: But from the point of view of human rights, is this not a violation of his prerogative to make a choice?

Answer: The Article 12 of the European Convention on Human Rights contains provisions on marriage law. Although there are no specific precedents in the case law of the European Court of Human Rights prohibiting the official registration of closely related marriages, judicial decisions on similar topics are based on certain principles: the freedom of judgment of States, even in the absence of consensus among member States and interference with human rights, resolves issues such as the validity and proportionality of interference.

In fact, courts often leave some issues of marriage regulation to the state at its discretion. Even if they are considered an interference with human rights, such intrusions may be considered justified and proportionate to the intended purpose. However, on the other hand, taking into account the legislation of the Member States, consensus in this area can be assessed, and it is also possible that a single country prohibits it in contrast to consensus. Therefore, it is difficult to answer this question unequivocally.

Question: Is there such a norm in civilized countries? How is this issue regulated by them?

Answer: In many countries, the restrictive norms related to marriage are similar to the norms currently in force here, but they have a ban on the registration of incest relationships, although in almost most countries, with the exception of some US states, marriages between cousins and cousins are not prohibited. In many European countries and in America, such issues are not relevant, since the majority of the population are Christians and religious beliefs keep them from entering into such marriages. But in some countries, this issue may be resolved in different ways depending on the region. For example, this is not relevant for some regions of Russia, which cannot be said about Dagestan and other territories of the country. In addition, due to the growing number of immigrants in Europe, this topic has become relevant and is being discussed in certain circles.

Question: If the proposed amendments are adopted, how will couples be checked for consanguinity? Will or should the mentioned law apply to already engaged cousins?

Answer: The Ministry of Justice is engaged in the registration of both marriages and other acts of civil status. The current database may provide an opportunity to clarify this. As for the engagement, it is an informal process. However, if the above-mentioned change comes into force after the adoption of the application for marriage by the Legislative Body, then it will be necessary to consider whether and how the transitional provisions for this case will be applied. If there are no specific provisions, such marriages cannot be registered after the law comes into force.

Question: Will the ban on related marriages completely eliminate the problems they cause? In general, what can these changes lead to? Will this affect the number of informal marriages?

Answer: This question is related to the answer to the first question that no specific research has been conducted in this area, in any case, the public does not have relevant open information.

Finding answers to a number of questions through research can be useful. For example, what deterrent effect does the inability to formalize marriage have on the population? Given that the absence of such registration of early marriages is not a deterrent, such marriages continue to be concluded. The ban on the official registration of marriage by itself cannot put an end to people's relationships. The consequences are not limited to the increase in the number of informal marriages. It is necessary to study what the informality of marriages can affect, how it can affect the rights of women and children, the number of paternity proceedings, people who have difficulty accessing the court (ignorance of their rights, lack of funds to pay for the services of a lawyer, fees and other court costs, etc.), and their children?  How will the absence of an official marriage affect the division of property in a divorce and can this put the mother and children at an economic disadvantage? Or will targeted social assistance be used instead of alimony, etc.?

Question: In general, what issues should special attention be paid to in the Family Code or when adopting this law? What shortcomings of the Code should the proposed amendments correct?

Answer: When it comes to consanguineous marriages, any legal norm in this area will not be very effective, because some issues cannot be solved only by legal methods. Thus, the presence or absence of certain forms of behavior is regulated by people's beliefs, worldviews, or social norms.  And this means that as long as people believe that these marriages are harmless, or as long as they are not condemned by the public, they will continue this custom of concluding such marriages. Therefore, it is necessary, first of all, to conduct research and find out the causes of consanguineous marriages. If this is a belief, it is necessary to explain widely the consequences caused by consanguineous marriages, complications of genetic diseases, if this is a social norm, then it would have a greater effect if people could be convinced that norms have changed and that people no longer resort to consanguineous marriages or that this is not approved by the public.

At the same time, priority should be given mainly to public campaigns and improving the quality of educational work.