Often described as a problem, marriages involving minors are seen by social and youth services as a challenge. This is a complex issue, one that makes many people uneasy and that demands a nuanced consideration. From a children’s rights perspective, it is essential to protect children and adolescents from forced marriages and safeguard the best interests of minors in Germany. First-hand reports make it clear that the circumstances and relationships involved can vary a great deal from one case to the next. The great majority of these marriages involve an underage girl who is married to an adult partner. While the age difference involved is often relatively small, there are a small number cases in which one spouse is twenty or more years older than the other. One can only speculate about the motivations behind these marriages: they may have been forced or consensual, may have been motivated by love, pregnancy, or by the hope of affording minors some protection against sexual abuse in the context of flight. The support needs of the minors concerned vary, regardless of whether they hope to get out of the marriage in Germany or wish to remain married.
In 2017, the German legislature reacted to this difficult issue by enacting the Act on Combatting Child Marriage (Gesetz zur Bekämpfung von Kinderehen). One thing this legislation does is eliminate exceptions to the minimum legal age for marriage that previously existed in Germany, making 18 the minimum marriageable age across the board. It also defines the legal status and treatment of marriages entered into by minors entered in another country. Generally, the new legislation provides for the annulment of marriages entered into by a person under 18 but over 16 years of age, though exceptions are possible. Marriages entered into by persons under 16 years of will no longer be recognised at all, which amounts to the blanket invalidation of such marriages.
The UN Convention on the Rights of the Child (UN CRC) emphasises that children are legal subjects and requires states parties to respect and promote their status as rights-holders when acting to protect or provide services to children. Children’s right to have their best interests considered, which is fully established in article 3, paragraph 1 of the UN CRC, requires individual decisions that are tailored to specific cases.
A prominent and important characteristic of the UN CRC is its far-reaching “best interests of the child” standard in conjunction with children’s right to be heard and have their views be given due weight (participation, Article 12 UN CRC). The best interests standard requires that a child’s best interests be determined on a case-by-case basis, taking the child’s own perspective into account. Thus, in each individual case, the minor’s own decision should be assessed and weighed in official proceedings in the light of the constitutional principles of self-determination, taking into consideration the best interests of the child, the child’s capacity to understand the nature of marriage and the freedom to decide for oneself. This means that not all marriages involving one or more minors violate the best interests of the minor(s) concerned.
The National CRC Monitoring Mechanism has pointed out problems associated with the new legislation in a number of written statements, hearings, media articles and interviews. The best interests of the child standard requires a differentiated approach to marriages which have already been entered into by a minor; in this respect, a one-size-fits-all solution will not lead to the desired result in this respect. The German Institute for Human Rights shares the human rights objective of a global minimum age for marriage of 18 years. However, it does not follow that human rights require that all marriages lawfully entered into by a minor in another country should be considered invalid.
The blanket invalidation of marriages entered into by a person or persons under the age of 16 has negative legal consequences for the minors in question. A non-marriage cannot give rise to legal obligations on the part of a spouse. By contrast, the legal consequences of the annulment of a marriage are equivalent to those of a divorce.
Stellungnahme zum Antrag der FDP-Fraktion "Kinder und Jugendliche schützen – Kinderehen wirksam bekämpfen" Drucksache 16/12848 Öffentliche Anhörung des Rechtsausschusses des Landtags Nordrhein-Westfalen am 18. Januar 2017
OHCHR: Joint general recommendation/general comment No. 31 of the Committee on the Elimination of Discrimination against Women and No. 18 of the Committee on the Rights of the Child on harmful practices