BVerfG judgment on child marriages: Why the blanket ban is unconstitutional

Marriages concluded abroad with children under the age of 16 are invalid in Germany – without exception. But the blanket ban violates the Basic Law. The constitutional court is now calling for improvements to protect those affected.

When hundreds of thousands of people fled to Germany from the war in Syria in 2015 and 2016, child marriages quickly became an issue. Around 1,500 married minors were living in Germany in mid-2016. At the time, politicians in Berlin thought they had to act quickly.

In the summer of 2017, the “Act to Combat Child Marriage” was passed. The main new regulation: If one partner is under 16 years old, marriages concluded abroad are automatically ineffective. Marriages between the ages of 16 and 18 can be annulled by a court.

Syrians complained about the blanket regulation

Even then there was criticism from experts of the blanket regulation for under 16-year-olds. Not because they want to protect child marriages, but because it is important to them that the courts examine individual cases. Marriage law can also protect underage spouses in individual cases. If, on the other hand, the marriage is automatically invalid, all claims under family law are lost.

The new regulation ended up in court because of a complaint filed by a man from Syria. In 2015 he married his wife in Syria. He was 21 at the time and she was 14. Together they fled from the war via the Balkan route to Germany. The couple got separated. The woman was placed in a youth welfare facility and placed under the care of the youth welfare office.

BGH: Legislators did not take enough account of the consequences

The man complained against it up to the Federal Court of Justice. He considered the blanket ban on child marriages concluded abroad to be unconstitutional and turned to the constitutional court. The BGH said that the legislature had given no thought to the consequences if a child marriage was automatically void.

The Basic Law provides special protection for marriage and family. In particular, spouses are responsible for one another. If the marriage is simply void, this can also have negative consequences for underage spouses. For example, they lose claims to maintenance.

BVerfG: Case-by-case examination not absolutely necessary

The Federal Constitutional Court has now followed suit and declared the law to combat child marriages to be unconstitutional. However, the judges expressly made it clear that a ban on child marriages is possible, primarily to protect underage girls. The legislature may also declare marriage for under 16-year-olds to be ineffective across the board. And a case-by-case assessment is not absolutely necessary.

However, the Prohibition Act of 2017 did not regulate the consequences of an ineffective child marriage. If the marriage is ineffective, the social protection of the underage partner must still be guaranteed.

Divorce law also applies to minors

How important both are to the judges – the ban on child marriage and social protection – is also shown by the fact that they themselves created a transitional regulation. The court decided that politicians had to re-regulate child marriage in accordance with the constitution by June 2024. Until then, the blanket ban on child marriage will remain in place. Child marriages with partners under the age of 16 are invalid.

So that the minors are still socially secure, the divorce law applies to them with immediate effect. This means that minor partners in an ineffective child marriage may be entitled to maintenance payments.

Az. 1 BvL 7/18