In 2017, the Act to Combat Child Marriages (Gesetz zur Bekämpfung von Kinderehen) introduced a regulation in Germany according to which marriages concluded abroad are invalid without exception, if one spouse had not yet reached the age of 16 when entering into the marriage.
This law has raised constitutional concerns from the outset and it poses major problems in practice.
The German Federal Constitutional Court (BVerfG) has now ruled that the law – namely Article 13(3)(1) EGBGB – is unconstitutional. However, it did not declare the law null and void, but only obliged the legislator to amend the law until 30 June 2024.
The BVerfG also explained that it would suffice, as a minimum solution, if, under a renewed law, the marriages continued to be void without exception, but the minor concerned nevertheless retained the advantages that a marriage brings – e.g. the marital right to maintenance. It is to be hoped that the legislator will not choose this option, which does not really fix the problem and which will hardly be communicable to the spouses concerned.
Why the proceedings took so many years is puzzling, because the matter was basically obvious. This is also shown by the opinions from legal and social organisations, which the Federal Constitutional Court obtained, and which almost without exception only pointed out disadvantages of the law.
One must also view the decision very critically for other reasons.
Firstly, it is incomprehensible why the Federal Constitutional Court did not declare the law null and void. The explanation given is that otherwise double marriages could occur because one of the spouses, believing the marriage to be void, could have already remarried. This seems, however, to be a rather theoretical danger above the real burden that the continued application of the law means for the girls and young women concerned (see para. 190 of the judgement; critically also Michaels, on Conflict of Laws).
Unfortunately, the BVerfG has also used the occasion to change its case-law on dealing with foreign marriages. It now subjects foreign marriages, in a previously unknown manner, to the structural principles of German law even at the primary level. This concerns not only child marriages, but also other forms of marriage unknown in Germany, such as common law marriages and – what is important in the refugee context – polygamy. It must be admitted, however, that the definition of marriage that the BVerfG places right at the beginning of the decision seems quite broad and relatively modern. It is worth reproducing it here verbatim:
Marriage within the meaning of Article 6 (1) of the Basic Law is a legally binding, in principle permanent, freely determined, in a special way accompanied by mutual obligations of support, equally and autonomously structured life partnership, which is established by a formalised, outwardly recognisable act.
This means that marriages between two people of the same sex and (possibly?) marriages between more than two people are also protected.
In the overall view, however, it remains regrettable that the BVerfG could not bring itself to support a regulation, that is based on examining the best interests of the child more closely in individual cases. The BVerfG wanted to take a strict stand against early marriages. That is well-intentioned. The worldwide fight against early marriages is important indeed. But it cannot be reached by annulling early marriages contracted abroad without exception and without regard to the rights and welfare of the (very) young woman concerned.
Putting abstract goals above the best interests of individuals is always problematic, and this is even more so in the case of children. In any case, invalidating early marriages contracted abroad without exception cannot help at all to prevent child marriages. It would be completely illusory to believe that even a single child marriage could be prevented in the home countries because such marriages will not be recognised in Germany.
Unfortunately, on the contrary, one can observe that early marriages continue to be arranged even if they are already strictly prohibited in the home state itself.
Bettina Heiderhoff is Director of the Institute for German and International Family Law at the University of Münster where she also holds a chair for Private Law, Private International Law and International Procedural law.
Photo credits: "Verhandlung über das Bundestagswahlrecht vor dem Bundesverfassungsgericht" by Mehr Demokratie e.V. is licensed under CC BY-SA 2.0
No Comments