The judges of the Federal Constitutional Court have ruled that a blanket ban on child marriages contracted abroad is incompatible with the constitution is compatible. Since 2017, marriages concluded abroad are automatically considered invalid if one of the partners was under the age of 16 at the time of the marriage.
In principle, the legislature is authorized to revoke marriages on the basis of age. However, a law must contain regulations on how to deal with annulled marriages. What happens to maintenance claims? What about the possibility of continuing a marriage in Germany after reaching majority? These questions are not answered in the law to combat child marriages, the constitutional judges justify their decision. However, the provision will initially remain in force in an amended form. The court has asked lawmakers until June 30, 2024 to create a new constitutional rule.
The grand coalition had banned the recognition of child marriages in 2017 because against the background of increased refugee numbers, more and more underage married couples had come to Germany. “Children don’t marry, children get married,” said former Justice Minister Heiko Maas (SPD). Since then, you have to be of legal age to get married. If one partner was only between 16 and 18 years old at the time of the marriage, the marriage should be annulled by a court decision. If one of them was under 16, the marriage is automatically invalid. These principles also apply if the marriages were effectively concluded under foreign law.
The Karlsruhe judgment is only about the last group, i.e. the under 16 year olds. The Federal Court of Justice (BGH) should have applied the new provision in the case of a Syrian couple, but considered it constitutionally problematic because the validity of the marriage was denied in general and regardless of specific circumstances. In such a situation, courts are obliged to stay the proceedings and obtain a decision from the Constitutional Court.
The case concerned 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 municipal 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.
At the request of the constitutional judges, the Max Planck Institute for Comparative and International Private Law presented a detailed study on the rules and laws relating to such marriages in other countries at the end of 2020. In countries such as Switzerland, the Netherlands or Sweden, the recognition of child marriages concluded abroad has also been severely restricted for several years, but the German way is still more restrictive, according to the study.
The European neighbors left back doors open. As soon as both partners have reached the age of 18, the mistake is “cured” according to Swedish and Dutch law – the marriage is effective again. In Switzerland, it is possible for a marriage to be legally recognized in the “overriding interest” of the spouses.