Underage, married, separated

A German law abolishes child marriages in general - not always in the interest of those affected

March 09, 2019

The “Law to Fight Child Marriage” is aimed at protecting girls from premature marriage. The regulation which took effect in 2017 is strengthening a key principle of emancipation: the right of women to lead a free and self-determined life. Nevertheless, there has been criticism of this law. Legal experts at various Max Planck Institutes see a problem in the rigid regulation and demand a more differentiated approach to the topic. Currently, the Federal Constitutional Court is also reviewing the law.

Text: Christian Rath

The discussion was triggered by a case from Bavaria. In August 2015, a young couple from Syria arrived in Aschaffenburg. The husband was 21, the wife 14 years old. They were married in Syria before a Sharia Court before fleeing to Germany because of the civil war. There they were initially housed together, but after one month, Child Protection Services took the girl into their charge and brought her to an institution for unaccompanied female refugees. At first, the husband did not know where the girl was, and later on, he was given “visitation rights” for the weekends. In May 2016, the Bavarian Higher Regional Court withdrew the separation again. It stated that the Syrian marriage would stand. There was no evidence of a forced marriage.

The case led to reactions of outrage. Representatives of the CDU and CSU stated: Children belong in school, not in a marriage bed. The then Minister of Justice Heiko Maas (SPD) said that children should play, learn and become independent. Only when they have become adults should they freely decide whether and who to marry. Among the NGOs, especially the women's rights organization Terre des Femmes championed a law against child marriage. “Young girls might find the idea of a large celebration in a beautiful dress with lots of presents tempting, so they might agree to a marriage,” the organization pointed out. “But they often do not have a clear idea of what marriage actually means for them: being taken out of school, working at home, sexual violence, early pregnancy, the end of childhood.”

Many married minors among refugees

The case in Aschaffenburg was only the tip of the iceberg. The Central Register of Foreigners at the time included 1475 married minors, of which 361 were even below 14 years of age. By now, the Federal Government has conceded that these figures were probably too high due to multiple counting. But nobody disputes that the strong migration of refugees from Syria, Iraq and Afghanistan in 2015/2016 have significantly increased the number of married minors. Many parents married off their daughters before fleeing in the hope that this would protect them from attacks.

In the summer of 2017, the Bundestag ruled in favour of a law that greatly tightened the German legal situation. Until then, it had been possible for the Family Court to recognize the marriage of a minor if this was not contrary to her well-being as a child. And a foreign marriage was only not recognized if the individual marriage was contrary to basic German principles - the “ordre public”. Since July 2017, a marriage is deemed to be invalid and thus null and void without exception if one of the particpants was less than 16 years old at the time of the wedding. If one partner was between 16 and 18 years of age, the marriage should normally be nullified. This applies both to marriages that take place in Germany, and to marriages concluded outside of the borders of Germany.

Criticism from Max Planck Institutes

Jürgen Basedow, Emeritus Director of the Max Planck Institute for Comparative and International Private Law in Hamburg has criticized the law for "not having been adequately thought through". It is assumed that the nonrecognition of the marriage would help the girls. But not all girls wanted this help. If the affected girl lives in an Islamic environment in Germany, the nonrecognition of her marriage could lead to harassment. “Thus what was envisaged as protection for a young woman inflicts further harm instead,” Basedow states. If she is pregnant or already a mother at the point in time when the marriage is revoked, the child would also suffer from the nonrecognition of the marriage. And if the husband dies, the girl even loses her rights as a widow.   

At the same Institute, Nadjma Yassari is leading the Research Group “Changes in God's Law - An Inner Islamic Comparison of Family and Succession Laws" which looks into family law in Islamic countries. Together with her colleague Lena-Maria Möller, she speaks up for an “individual case-by-case examination of the child’s well-being by the Family Courts”, as was the case previously.

Federal Constitutional Court is reviewing the law

At the Max Planck Institute for Foreign and International Criminal Law in Freiburg, the expert for Turkey and Iran Silvia Tellenbach also examined he child marriage law. She believes that stricter rules regarding the marital age for marriages concluded in Germany are possible. In the German population the law would probably have little meaning since attitudes have changed in relation to the most important reasons for an early marriage in the past, i.e. that you ‘had to marry’.” Having a child outside marriage is no longer considered a matter of shame, and cohabitation without a marriage certificate is also accepted nowadays. Tellenbach sees it as problematic, however, to automatically categorise a marriage registered abroad as invalid if one of the parties was younger than 16 at the time of the wedding. For affected young women from the Middle East, this could mean “a shock and the loss of marital protection ... if their marriage is simply categorized as a non-marriage.” That is why Tellenbach is demanding the option to recognize marriages that were concluded abroad under the age of 16 on an individual case basis.

The legal experts at the MPG are not alone in their opinion. During the legislative process, numerous expert associations, such as Familiengerichtstag, Deutscher Juristinnenbund and Kinderhilfswerk, expressed their criticisms of the automatic nature of the Child Marriage Act.

In December 2018, the German Federal Court (BGH) followed suit. In its review, it was required to rule on the case of the Syrian couple from Aschaffenburg. According to the new law, the BGH would only have been able to confirm the invalidity of the marriage. But the judges ruled that the legislator's strict new regulation was in breach of the Federal Constitution, and particularly against its requirement of child welfare. This would dictate an examination of each situation individually. It was also in violation of the protection of marriage, the BGH stated. The Federal Constitutional Court is now reviewing whether the law does in fact violate the Constitution. A few days ago, the Court announced that it would reach a decision in the case in 2019.

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