In Germany, a ruling by the highest court has sparked much debate: The Federal Constitutional Court declared the legal ban on child marriages to be unconstitutional. What is behind the judgment and does it mean that the supreme judges allow child marriages?
But let’s start with the question of why the German court had to deal with the legal process at all: A 21-year-old Syrian had married a 14-year-old before a Sharia court in his home country in 2015. The couple fled the same year to Germany. According to the regional court in Bavaria, there were no indications of a forced marriage, so it used the leeway that existed until 2017 to accept the marriage. After the new law came into force, the local youth welfare office took action, placed the minor in a youth welfare facility and ordered guardianship. The Federal Court of Justice had to decide on the case, suspended the proceedings at the end of 2018 and asked the Federal Constitutional Court whether the provision was compatible with the German constitution, which has now responded.
In summary, the judges now said that while a strict age limit of 16 for marriage is in principle permissible, German law is “disproportionate” because there are no maintenance regulations or provisions for couples who married when they were minors attaining the age of majority to hold on to their marriage. The law to combat child marriages, which was redesigned in 2017, therefore violates the constitution. The Federal Constitutional Court stated that the legislature may make the validity of marriages concluded abroad dependent on a minimum age of the parties involved. But then regulations would have to be made about possible consequences such as maintenance claims or the possibility of continuing the marriage in adulthood.
Now, without being able to professionally understand the judicial dialectic, common sense comes into play, which tells most citizens: If a 14-year-old is married, it is not marriage, but child abuse. Anyone who cares about human rights should outlaw such practices and legally prevent them. It should be the task of youth welfare offices to free victims from such situations – even against their will, which may be articulated at the moment – and to enable them to start again. This is exactly what the Federal Constitutional Court did not do in its decision. Instead, the judgment acts like a softening when it criticizes a “constitutionally unjustified interference with the freedom to marry”.
The Minister of Justice responsible for the law at the time was Heiko Maas, who said the sentence at the presentation: “Children belong in school – not in front of the altar.” With the new law, he wanted to put an end to so-called child marriages, a problem that had become apparent due to the large number of refugees. So the governing coalition at the time passed a law that was widely acknowledged as having good intentions but poor craftsmanship. Marriages to minors under the age of 16 should be automatically invalid, regardless of the fact that women in particular would be left without maintenance claims after years or decades of a suddenly illegal marriage. Family lawyers warned urgently not to use a crowbar to solve such complex problems. In vain, in July 2017 the law came into force.
The legislator must make improvements by the end of June 2024. As long as the provision remains in force, the court itself laid down standards for maintenance claims. In Karlsruhe it was only about the new regulation for marriages with under 16-year-olds. Marriages contracted abroad were declared invalid without exception if the spouse was younger than 16 at the time of the marriage.
Of course, the critics of the regulation were by no means fans of child marriage, but experts with an eye for the practical needs of those affected. This was also the view of the Federal Court of Justice, which submitted the case to the Constitutional Court in 2018.
According to the ruling, however, a strict age limit of 16 years may still be permissible. The ability to take responsibility for oneself, which requires sufficient personality development, is part of the yes word. “It is sufficiently certain in terms of developmental psychology that children under the age of 16 are regularly not yet able to assess the consequences associated with entering into a marriage due to their development,” the decision says. The idea of an equal partnership is not compatible with the “unilateral dominance of a spouse”.
On this point, the court did not follow the critics. It has often been demanded that the courts should also examine in each individual case for married couples under the age of 16 what disadvantages the sudden end of a marriage has for maintenance, inheritance rights and common children. The situation is similar with the applicable rule for 16 to 17-year-olds, which is less rigid, also thanks to the subsequent mitigation by the BGH. Here the courts can weigh the pros and cons.
The constitutional court, however, considers the 16-year limit to be legitimate, particularly because of the automatism associated with it. Because a year-long legal battle over a marriage annulment could take the effect of the fight against child marriages. It is the declared goal of the law, in accordance with the work of the United Nations, to contribute to the international outlawing of child marriages, because the widespread practice of early marriage impairs the development opportunities of girls in particular. The United Nations Children’s Fund Unicef estimates the number of married girls under the age of 18 at 650 million worldwide, and that of boys at 115 million.
At the same time, according to the German court ruling, the consequences of the marriage annulment must be cushioned. According to Unicef, child marriages are a phenomenon of poverty that affects girls from rural areas. In South Asia, for example, they are much more likely to be married early than their peers in the cities. If they are unexpectedly confronted with the ineffectiveness of their marriage in Germany, they are often left empty-handed, without the entitlement to financial compensation and maintenance that they would have in the event of a divorce. The legislature must make improvements here.
The second point: if the German authorities take action, a marriage under the age of 18 can be a long time ago. However, under current law, there is no mercy: a marriage is void if either party was under the age of 16 at the time of the marriage. Here, the Constitutional Court demands a way for couples who are now of legal age to hold on to the marriage. “When those who are under the age of 16 at the time of marriage reach the age of majority, the protection of minors as the main purpose of the proposed regulation no longer applies,” the decision says.
Incidentally, this is also confirmed by experience with the law. In 2020, the Federal Ministry of Justice counted only 20 annulled marriages, including those of 16 and 17-year-olds. On the other hand, the authorities reported more than 1,000 cases in which they had waived applications for annulment – because the now adult wives wanted to stick to the marriage.
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