The right to marry and to have a family is guaranteed.
#Overview
Article 14 of the Federal Constitution protects the right to marriage and family. This guarantee encompasses two important areas: the right to marry and the right to family life.
The right to marriage means that every person can freely decide whom they marry. The state may not arbitrarily prevent marriages or make them more difficult through excessive obstacles (BGE 138 I 41). Since 1 July 2022, same-sex couples can also marry in Switzerland, after the people accepted "marriage for all" on 26 September 2021. Until this date, marriage was limited to opposite-sex couples (BGE 119 II 264). Polygamy remains prohibited today and violates Swiss public policy.
The right to family protects existing family relationships. This includes not only married couples with children, but also unmarried partnerships (cohabitation) and other forms of family. The Federal Court has recognised that unmarried life partners can also belong to the concept of family (BGE 143 I 241).
The guarantee functions as a defensive right against state interference. However, it also obliges the state to create a legal framework for marriage and family. This is particularly important for family reunification: foreign persons can have their spouses or family members join them in Switzerland under certain conditions (BGE 139 I 330).
Practical example: A German national lives together with his Swiss partner. When they want to marry, the civil registry office requires him to provide proof of lawful residence. If he cannot immediately present this, the authorities must grant him a provisional residence permit so that the marriage can take place (BGE 137 I 351).
When interfering with freedom of marriage and family, the authorities must have a legal basis and act proportionately. Restrictions are only permissible if they serve a public interest and do not affect the core content of the right.
Art. 14 FC — Right to Marriage and Family
#Doctrine
#1. Legislative History
N. 1 Art. 14 FC continues the guarantee of Art. 54 para. 1 of the former Federal Constitution of 1874 (aFC) in a modern, concise form. In its Message of 20 November 1996, the Federal Council affirmed that the provision was intended to enshrine the right to marry both as an institution and as a directly justiciable individual right, and to ensure special protection of marriage over other forms of cohabitation (BBl 1997 I 154 f.). The transposition of Art. 54 para. 2, 3, 5 and 6 aFC was deliberately omitted, as the Federal Council considered those provisions to have been superseded by the matrimonial law of the CC.
N. 2 In the Message, the Federal Council explicitly stated that the right to marry referred to the union of a man and a woman and encompassed neither transsexual nor same-sex unions; extending it to all forms of cohabitation would contradict the fundamental concept of the institution of marriage (BBl 1997 I 154 f.). This statement was based on the consistent case law on Art. 54 aFC up to that point (BGE 119 II 264 cons. 4b).
N. 3 In the parliamentary deliberations, a central controversy arose over the wording. The Council of States wished to frame the provision as a mere institutional guarantee of marriage. Rapporteur Inderkum warned that the formulation preferred by the National Council — «right to marriage and family» — could give rise to false expectations: «The version of the National Council could lead to false expectations and interpretations. It could not be excluded that unmarried couples would derive from it a right to family, including the right to adopt.» (Inderkum Hansheiri, AB 1998 SR Separatdruck). In the National Council, commission rapporteur Deiss defended «the right to marriage and family» as a deliberately broader formulation. After several rounds of conciliation proceedings — the conciliation conference met on 14/15 December 1998 — the National Council's formulation prevailed. Member of the Council of States Frick added that «family» should be understood as «the common forms of family today, namely parents and children living together» (Frick Bruno, AB 1998 SR Separatdruck). The final vote took place on 18 December 1998 in both chambers.
N. 4 The popular vote of 18 April 1999 adopted the new Federal Constitution. Art. 14 FC entered into force on 1 January 2000. With the revision of the Civil Code and the introduction of «marriage for all» on 1 July 2022 (AS 2021 747), the exclusion of same-sex marriages originally envisaged in the draft Message has become moot: Art. 14 FC now also protects marriage between persons of the same sex.
#2. Systematic Classification
N. 5 Art. 14 FC is found in the second chapter of the second title of the Federal Constitution (Fundamental Rights, Art. 7–36 FC). The provision contains a dual guarantee: it protects marriage as a legal institution (institutional guarantee) and simultaneously confers a subjective individual right to marry and to family life. It thus operates both as a defensive right against state interference and as an institutional guarantee obliging the legislature to shape and protect the institution of marriage.
N. 6 Art. 14 FC is closely related to ↔ Art. 13 para. 1 FC (protection of private and family life). Both provisions protect family relationships, but Art. 14 FC, as the more specific guarantee for marriage and formalised family life, takes precedence. In the area of family reunification under immigration law, Art. 14 FC and Art. 13 para. 1 FC must regularly be considered together (→ Art. 13 FC). The limitation clause of → Art. 36 FC applies to Art. 14 FC as it does to all fundamental rights.
N. 7 At the level of international law, Art. 14 FC corresponds primarily to Art. 12 ECHR (right to marry) and Art. 8 ECHR (right to respect for private and family life). The Federal Supreme Court interprets Art. 14 FC in consistent case law in parallel with Art. 12 ECHR; the judgments of the ECtHR — in particular O'Donoghue and Others v. United Kingdom (No. 34848/07, 14 December 2010) — are authoritative for the interpretation of Swiss constitutional law (BGE 137 I 351 cons. 3.4 f.; BGE 138 I 41 cons. 3).
N. 8 In relation to civil law, Art. 14 FC constitutes the constitutional basis for the matrimonial law provisions of the CC (Art. 90 ff. CC). The legislature enjoys wide discretion in this regard; it is merely obliged not to abolish the institution of marriage as such and to preserve the core of the right to marry (core content, → Art. 36 para. 4 FC).
#3. Elements of the Provision / Normative Content
3.1 Holders of the Right
N. 9 The right to marriage and family belongs to every adult natural person, irrespective of nationality, religion or immigration status. It is a human right, not a civic right (BGE 137 I 351 cons. 3.5; Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 221). Minors are excluded from the freedom to marry for as long as civil law stipulates majority as a prerequisite (Art. 94 para. 2 CC).
3.2 Scope of Protection: «Right to Marry»
N. 10 The right to marry protects the freedom to enter into marriage and the right to avail oneself of marriage as a legal institution. It encompasses the right to marry, the freedom to marry a specific person, and — negatively — the right not to be compelled to marry (Leuenberger Moritz, Federal Council, AB 1998 SR Separatdruck: «No obligation to marry can be derived from Article 12»). However, Art. 14 FC does not give rise to an obligation on the state actively to promote the conclusion of marriage; the provision operates primarily as a defensive right (BGE 140 I 77 cons. 5.3; Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 394 ff.).
N. 11 The institutional guarantee obliges the legislature to maintain marriage as an autonomous form of life with specific legal effects (mutual duty of maintenance, Art. 163 CC; inheritance rights, Art. 462 CC; joint parental authority, Art. 296 CC). It prevents the legislature from effectively abolishing the institution of marriage or hollowing it out to the point of insignificance (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1862).
N. 12 Since 1 July 2022, marriage has also been open to same-sex couples (AS 2021 747). With this legislative amendment, the earlier case law holding that Art. 14 FC exclusively protected the union of a man and a woman (BGE 119 II 264 cons. 4b; BGE 126 II 425 cons. 4b) has become moot. Art. 14 FC now protects all marriages irrespective of the sex of the persons concerned.
3.3 Scope of Protection: «Right to Family»
N. 13 The right to family protects the right to found a family and the right of parents and children to live together. According to the parliamentary deliberations, the conciliation conference understood «family» to mean «the common forms of family today, namely parents and children living together» (Frick Bruno, AB 1998 SR Separatdruck). In legal practice, the concept of family also covers cohabitation relationships (concubinage), provided they constitute a close, genuine and actually lived relationship (BGE 143 I 241 cons. 3.6; BGE 126 II 425 cons. 4c).
N. 14 The right to family operates not only as a defensive right but also has a positive obligation dimension: the state must organise its legal order in such a way that family life can genuinely be lived. However, Art. 14 FC does not as a rule give rise to direct entitlement claims to state social insurance benefits (BGE 140 I 77 cons. 5.3).
3.4 Proportionate Limitations
N. 15 Restrictions on the right to marry and family life are only permissible subject to the limitations of Art. 36 FC: a legal basis, a public interest, proportionality (suitability, necessity, reasonableness) and preservation of the core content. The Federal Supreme Court has emphasised in particular in the context of combating marriages of convenience that measures to prevent such marriages must not categorically exclude all persons without lawful residence from access to marriage; they must be tailored to the individual case (BGE 137 I 351 cons. 3.5; BGE 138 I 41 cons. 3 f.).
#4. Legal Consequences
N. 16 As a directly applicable individual right, any person concerned may invoke Art. 14 FC directly. State measures that systematically, automatically and indiscriminately deny access to marriage violate Art. 14 FC (→ Art. 12 ECHR). Relying on Art. 14 FC and Art. 12 ECHR, the Federal Supreme Court has obliged immigration authorities to issue foreign fiancés with a provisional residence permit for the purposes of marriage preparation on a case-by-case basis, provided there are no indications of abuse of rights and admission following the marriage clearly appears warranted (BGE 137 I 351 cons. 3.7).
N. 17 The right to family life obliges authorities to give proportionate consideration to family ties in immigration law decisions. Refusal of family reunification engages Art. 14 FC and may, in special circumstances, give rise to entitlement claims under immigration law (BGE 139 I 330 cons. 4 ff.; BGE 139 I 37 cons. 3 f.). In the context of the execution of sentences, Art. 14 FC confers on detained persons a right to adequate regular contact with family members and established life partners (BGE 143 I 241 cons. 3.6; 4.5).
N. 18 The institutional guarantee takes effect in relation to the legislature: differentiated treatment of married couples and cohabiting couples in social insurance law is in principle permissible, provided there are objective grounds and an overall assessment reveals no impermissible discrimination. The capping of OASI pensions under Art. 35 OASIA does not, in an overall assessment, violate either Art. 14 FC or Art. 8/14 ECHR (BGE 140 I 77 cons. 9).
#5. Disputed Questions
5.1 Institutional Guarantee versus Subjective Right
N. 19 A classic point of contention concerns the relationship between the institutional guarantee and the subjective individual right. The Council of States wished primarily to enshrine an institutional guarantee, while the National Council favoured a subjective right to marriage and family; the final wording combines both elements. Müller/Schefer (Grundrechte in der Schweiz, 4th ed. 2008, p. 220 f.) emphasise that Art. 14 FC contains both an institutional guarantee and a directly justiciable subjective right. Rhinow/Schefer/Uebersax (Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1862) confirm this dual function. The case law has endorsed this characterisation (BGE 137 I 351 cons. 3.5).
5.2 Positive Entitlement Claims in Family Law from Art. 14 FC
N. 20 It is disputed whether Art. 14 FC — beyond its defensive right dimension — independently establishes positive entitlement claims to state benefits (e.g. social insurance benefits, parental leave, adoption rights). Häfelin/Haller/Keller/Thurnherr (Bundesstaatsrecht, 10th ed. 2020, N 396) deny a direct entitlement claim and confine Art. 14 FC to its classic defensive function. The Federal Supreme Court has endorsed this restrictive position, holding that the fundamental rights to marriage and family are directed «primarily as defensive rights against the state» and give rise to «constitutionally direct entitlement claims only exceptionally and in isolated cases» (BGE 140 I 77 cons. 5.3).
5.3 Scope in Relation to Other Forms of Cohabitation
N. 21 It is disputed whether Art. 14 FC also protects non-marital cohabitation relationships. The parliamentary deliberations revealed a clear tension: Member of the Council of States Inderkum feared that the formulation «right to marriage and family» might lead to «unmarried couples deriving from it a right to family, including the right to adopt» (AB 1998 SR Separatdruck). Case law has since taken a middle path: while marriage remains especially protected at an institutional level (BGE 140 I 77 cons. 9), the protection afforded by the «right to family» in practice extends to cohabitation relationships resembling marriage in the area of contact and visiting rights (BGE 143 I 241 cons. 3.6; 4.5). Müller/Schefer (op. cit., p. 221 ff.) advocate an evolutionary interpretation that takes account of social change.
5.4 Same-Sex Marriage and Developments since 2022
N. 22 Prior to the introduction of «marriage for all» on 1 July 2022, it was fiercely contested whether Art. 14 FC established a constitutional entitlement for same-sex couples to access marriage. Müller/Schefer (op. cit., p. 102 ff.) expressed cautious and nuanced views, while the Federal Supreme Court, relying on the Message and the parliamentary deliberations, treated the concept of marriage as confined to opposite-sex couples (BGE 126 II 425 cons. 4b). With the legislative revision (AS 2021 747), this dispute has been rendered moot by the legislature. What remains open is whether Art. 14 FC today itself establishes an entitlement to full equal treatment of registered partnerships across all areas of law (e.g. adoption law, reproductive medicine), an issue increasingly influenced by ECtHR case law (cf. ECtHR, X. v. Austria, No. 19010/07, 19 February 2013, cited in BGE 140 I 77 cons. 7.1).
#6. Practical Notes
N. 23 Marriage and immigration law: The civil registrar must allow foreign fiancés sufficient time to regularise their residence status. If immigration authorities also refuse to issue a provisional residence permit even though there is no abuse of rights and admission following the marriage clearly appears warranted, there is a violation of Art. 14 FC in conjunction with Art. 12 ECHR (BGE 137 I 351 cons. 3.7; BGE 138 I 41 cons. 5). Authorities may not categorically block marriage preparation for all persons without lawful residence.
N. 24 Family reunification: Art. 14 FC obliges immigration authorities to apply the family reunification provisions (Art. 42 ff. FNIA) in a manner consistent with fundamental rights. In so doing, family ties must be weighed against public interests in the framework of proportionality. The Federal Supreme Court has developed specific standards for recognised refugees with asylum status: dependence on social assistance of the partner to be reunited does not alone justify refusal of reunification if the shortfall can be compensated within a foreseeable period and the refugee is doing everything reasonably expected to achieve integration (BGE 139 I 330 cons. 4 ff.).
N. 25 Execution of sentences: Persons held in pre-trial or sentenced detention retain their right to adequate contact with family members and long-standing life partners. A complete, temporally unlimited refusal of visiting rights without specific grounds for detention (e.g. a continuing risk of collusion) violates the core content of Art. 14 FC (→ Art. 36 para. 4 FC). Authorities must permit proportionate visiting arrangements — if necessary under supervision or by means of prisoner transport (BGE 143 I 241 cons. 4.3–4.5).
N. 26 Social insurance law: Differential treatment of married couples and other forms of cohabitation in social insurance law must be assessed against the standard of Art. 14 FC in conjunction with Art. 8 FC. The legislature enjoys wide discretionary latitude; impermissible discrimination only arises where the unequal treatment, in an overall assessment of all social insurance advantages and disadvantages, lacks objective justification (BGE 140 I 77 cons. 9). Individual disadvantages (e.g. the capping of OASI pensions) are permissible provided the system as a whole rests on a balanced reconciliation of interests.
N. 27 Binding effect on third parties: Art. 14 FC has an indirect third-party effect (mittelbare Drittwirkung). In private law, provisions must be interpreted in a manner consistent with the Constitution; it is not possible for private individuals to invoke Art. 14 FC directly against other private individuals (→ Art. 35 para. 1 FC). In public law, Art. 14 FC binds all state authorities directly (→ Art. 35 para. 2 FC).
#Case Law
#Right to Marriage
BGE 137 I 351 of 23 November 2011 Requirement of lawful residence during marriage preparation proceedings remains compatible with Art. 14 Cst. The migration authority is obliged to issue a provisional residence permit to a foreign fiancé with a view to marriage, provided there are no signs of abuse of rights.
«If the civil registrar cannot perform the marriage ceremony of a foreign fiancé due to lack of proof of lawful residence in Switzerland (Art. 98 para. 4 CC and Art. 67 para. 3 Civil Status Ordinance), the migration authority is obliged to issue the latter a provisional residence permit with a view to marriage, provided there are no signs of abuse of rights and it appears clear that the person concerned - once married - will meet the admission requirements in Switzerland based on his personal situation.»
BGE 138 I 41 of 17 January 2012 Confirmation of case law on residence requirements for marriage. The guarantee of the right to marriage requires proportionate application of foreign nationals law provisions.
«This interpretation allows compliance with Art. 12 ECHR and Art. 14 Cst. in accordance with the will of the legislator and is consistent with the principle of exclusivity or primacy of asylum proceedings.»
#Same-Sex Relationships and Marriage
BGE 119 II 264 of 3 March 1993 Early case law on same-sex marriage: Violation of public policy. A same-sex marriage concluded abroad violates Swiss public policy and may not be recognised.
«A marriage between persons of the same sex violates Swiss public policy and may therefore not be recognised; non-recognition violates neither Art. 54 Cst. nor Art. 8 or 12 ECHR.»
BGE 126 II 425 of 25 August 2000 Change in case law on same-sex partnerships. Same-sex partnerships do not constitute family life but may fall under the right to private life.
«Same-sex partnerships do not constitute family life within the meaning of Art. 8 ECHR or Art. 13 para. 1 Cst.; the refusal of a foreign police permit to the foreign partner may under certain circumstances affect the right of those concerned to private life and restrict the discretion of the permit authority according to Art. 4 ANAG.»
#Family Reunification and Marriage Law
BGE 139 I 330 of 5 September 2013 Family reunification of recognised refugees with subsequently married partners. The right to family establishes claims to foreign nationals law permits under certain circumstances.
«If a recognised refugee with asylum does everything reasonable to integrate as quickly as possible - also economically - the social assistance dependency of the spouse to be reunited cannot be held against him if the future shortfall is kept within reasonable limits and can presumably be compensated for in the foreseeable future.»
BGE 139 I 37 of 2 January 2013 Family reunification in case of marriage during Schengen visa. The right to family may oblige migration authorities to apply foreign nationals law provisions in conformity with fundamental rights.
«The application of Art. 17 para. 1 FNA, according to which the permit decision must in principle be awaited abroad, must be carried out in conformity with fundamental rights.»
#Family Rights and Cohabitation
BGE 143 I 241 of 18 April 2017 Visiting rights between unmarried life partners in criminal enforcement. Art. 14 Cst. protects not only spouses but also unmarried cohabiting couples.
«In the absence of opposing weighty public interests, prisoners in criminal proceedings also have the right to appropriate regular contact with their family, which also includes unmarried life partners.»
#Parental Rights and Gender Equality
BGE 140 I 305 of 15 September 2014 Maternity benefits for fathers: No discrimination in gender-specific regulations. Art. 14 Cst. does not require complete equality in all areas of family law if there are objective reasons.
«Art. 16b EO does not contain parental leave as it exists in other (European) countries, but exclusively regulates the mother's compensation claim after birth. An impermissible discrimination does not exist - also in light of the case law of the ECtHR.»
#Social Insurance Law Aspects
BGE 140 I 77 of 6 December 2013 OASI pension ceiling: Different treatment of married couples and cohabiting couples. The disadvantageous treatment of married couples in OASI pensions is constitutionally permissible if there are objective reasons.
«The pension ceiling according to Art. 35 OASI Act leads to unequal treatment of married couples and registered partners on the one hand and cohabiting couples on the other hand. The disadvantageous treatment regarding the amount of old-age pension may not be viewed in isolation; there are objective reasons for this.»
#Current Developments
Judgment 2C_323/2018 of 21 September 2018 Family reunification: Deadlines and important family reasons. The Federal Court confirms restrictive application of family reunification provisions even for married couples.
«A corresponding right exists in the present case based on Art. 42 para. 1 FNA (in conjunction with Art. 47 para. 4 FNA [non-timely family reunification]) only if important family reasons justify subsequent family reunification.»
Legal development since 2022: With the introduction of marriage for same-sex couples on 1 July 2022, the public policy case law developed in BGE 119 II 264 is obsolete. Art. 14 Cst. has since fully protected same-sex marriages as well.