Legislative provisions related to marriage and divorce of persons with mental health problems: a global review

Realization of right to marry by a person is an exercise of personal liberty, even if concepts of marriage and expectations from such commitment vary across cultures and societies. Once married, if an individual develops mental illness the legal system often starts to discriminate against the individual. There is no doubt that every individual's right to marry or remain married is regulated by their country's family codes, civil codes, marriage laws, or divorce laws. Historically mental health condition of a spouse or intending spouse has been of interest to lawmakers in a number of ways from facilitating divorce to helping the individual with mental illness. There is no doubt that there are deeply ingrained stereotypes that persons with mental health problems lack capacity to consent and, therefore, cannot enter into a marital contract of their own free will. These assumptions lead to discrimination both in practice and in law. Furthermore, the probability of mental illness being genetically transmitted and passed on to offspring adds yet another dimension of discrimination. Thus, the system may also raise questions about the ability of persons with mental health problems to care, nurture, and support a family and children. Internationally, rights to marry, the right to remain married, and dissolution of marriage have been enshrined in several human rights instruments. Domestic laws were studied in 193 countries to explore whether laws affected the rights of people with mental illness with respect to marriage; it was found that 37% of countries explicitly prohibit marriage by persons with mental health problems. In 11% (21 countries) the presence of mental health problems can render a marriage void or can be considered grounds for nullity of marriage. Thus, in many countries basic human rights related to marriage are being flouted.