The German “Act to Combat Child Marriages” (Gesetz zur Bekämpfung von Kinderehen) from 2017 had been declared partially unconstitutional by the German Federal Constitutional Court (BVerfG) in February 2023 (see this post). It has now been replaced by an almost identical new law, which is called the “Act for the Protection of Minors in Foreign Marriages” which came into force on 1 July 2024. Apart from the name of the act, little has changed.
In its decision of 23 February 2023, the Federal Constitutional Court had ruled that the former law was partly incompatible with the German Basic Law. It held that marriages validly concluded abroad could be treated as null and void in Germany if one spouse was under the age of 16 at the time of the marriage. However, it also stated that this nullity should not have any negative consequences for the minor. The legislator therefore had to create a new law.
The governing three-way coalition of Social Democrats, Greens and Liberals could not agree to examine foreign early marriages individually to determine whether they are in the best interests of the minor. Instead, it mainly changed the name of the law and tried to change its content as little as possible.
The new law maintains that marriages where one spouse was under the age of 16 when the marriage was entered into are void without exception. As required by the BVerfG, the law provides for certain maintenance claims for the minor spouse. In addition, remarriage after reaching the age of majority is made easier in practice by dispensing with the requirement to present a certificate of no impediment to marriage.
There are serious doubts as to whether the new law is constitutional. First, the BVerfG had demanded the possibility for the minor spouse of curing the marriage when reaching full age. Dispensing with the certificate of no impediment for a re-marriage is something completely different.
In addition, the maintenance claim (which is hardly enforceable abroad, in any case) will only partially mitigate the negative consequences of nullity.
It is deplorable that the governing coalition – in view of the current anti-migration sentiments in the country – lacked the courage to protect the respective young spouses.
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: Wikimedia Commons – The Bundestag.
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