The blanket ban on child marriages must be improved at the behest of the Federal Constitutional Court. The judges in Karlsruhe announced that marriages concluded abroad with under-16s could be declared null and void without examining the individual case. At the moment, however, there is no way of being able to continue the marriage effectively under German law as soon as both are of legal age. In addition, future maintenance claims must be provided for as after a divorce.
The legislator has until mid-2024 at the most to revise it. The maintenance regulations apply with immediate effect. (Az. 1 BvL 7/18)
“Children don’t marry, children are married”
The provision in question stipulates that a foreign marriage is automatically invalid if one of the partners was under 16 years old. It was part of the “Law to Combat Child Marriages” that the black-red federal government introduced in 2017 against the background of increased refugee numbers. At that time, an increasing number of very young married couples had come to Germany. The then Justice Minister Heiko Maas (SPD) therefore saw a need for action: “Children don’t marry, children get married,” he said.
The Federal Court of Justice (BGH) should have applied the new provision in 2018 in the case of a Syrian couple, but considered it constitutionally problematic. In such a situation, courts are obliged to stay the proceedings and obtain a decision from the Federal Constitutional Court.
The 80-page decision is now available. Unlike the BGH colleagues, the constitutional judges have no fundamental concerns about the general annulment of marriages. The protection of minors and the outlawing of child marriages are legitimate goals. And only automatic ineffectiveness protects those affected directly from the legal effects that a marriage would normally have.
Undue interference with the freedom to marry
However, the judges consider it an inappropriate encroachment on the freedom to marry that those affected currently have to remarry if they want to continue the marriage as adults. They also point out that the underage partner is often economically dependent on the older one. The waiver of any maintenance claims is therefore a special burden.
The BGH case was about a girl who married a man seven years her senior in Syria in 2015 at the age of 14 before a Sharia court. A little later both fled to Germany. Here the teenager was separated from her husband and housed in a facility for female underage refugees. The youth welfare office was appointed guardian. This wanted to enforce in court that the teenager is only allowed to meet her – former – husband once a week for three hours under supervision.
The Karlsruhe proceedings on child marriages once caused discussions because the President of the Constitutional Court, Stephan Harbarth, was still the Union’s parliamentary group leader in the Bundestag in 2017. Harbarth, who is chairman of the responsible First Senate, had himself stated that he was “intensively involved in the preparation and passage of the law to combat child marriage”. Nevertheless, his Senate colleagues saw no reason to doubt his impartiality. They decided in 2019 that he could work on the process.
