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Establishing a minimum age for marriage

Drafters of laws on forced marriage should specify the minimum age of 18 years for marriage. (See: CEDAW, Article 16(2); Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, Art.2) Establishing 18 years as the minimum age for marriage is supported by both international and regional law. (See: Article 1 of the Convention on the Rights of the Child (stating a child is defined as anyone under the age of 18 years of age, unless the law states that majority is reached at an earlier age) and Article 1(1) of the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (requiring the free and full consent of both parties)) The African Charter on the Rights and Welfare of the Child adopts a strong stance against harmful traditional and social practices that affect the “welfare, dignity, normal growth and development” of the child, including those practices that discriminate based on sex. The charter prohibits child marriage and the betrothal of children, calling for states to take effective action, including legislation, to specify the minimum age for marriage as 18 years and to mandate the registration of all marriages in an official registry (Art.21). Council of Europe Parliamentary Assembly Resolution 1468 defines child marriage as the union of two persons, one of whom is under 18 years of age (Para. 7). 

Illustrative Example: Madagascar increased the minimum age of marriage to 18 years and included registration of traditional, or non-official, marriages under the formal legal system. Because traditional marriages are more numerous than officially registered marriages, this measure is expected to contribute to the reduction of child and forced marriages.

The Eritrean Civil and Penal Code has been revised to raise the minimum age of marriage to 18 for both boys and girls, and to ensure that marriage is consensual.

See: Protecting Children from Harmful Practices in Plural Legal Systems, Office of the Special Representative of the Secretary on Violence against Children, 2012.

Since girls are frequently the underage party in forced marriages, drafters should promote equality in marriage by ensuring that the minimum age is the same for men and women. 

Drafters should establish 18 years as the minimum age for marriage without exception. Some states allow an underage minor to marry with their parent or guardian’s permission or upon court authorization. For example, Poland allows a court to authorize a girl as young as 16 years of age to marry even in the absence of parental permission. (See: Family Life, Poland, Legislationline) Some states in the U.S. have similar laws. Minnesota Statute 517.02 allows a 16-year-old to marry with the permission of the custodial parents, guardian or court, “after a careful inquiry into the facts and the surrounding circumstances.” In Mississippi, the minimum age for marriage is 17 for males and 15 for females, which can be waived with parental consent. In New Hampshire, the minimum age is 14 for males and 13 for females, with parental and judicial consent. Croatian courts may authorize a marriage after consultation with the underage person and their parents and if it deems the underage party sufficiently physically mature to handle the responsibilities and rights in marriage. (See Forced Marriages in Council of Europe member states (2005), p.38)

Laws should ensure that the minimum age corresponds with an objective standard of maturity, i.e. the age of 18, rather than subjective perceptions of the party’s maturity. Misperceptions that equate sexual maturity with readiness for marriage do not take into account ongoing development. The Committee on the Rights of the Child has found that physical development does not connote maturity, particularly when social and mental development is still in progress. (See: OHCHR Fact Sheet No.23, ¶ D) During adolescence, teenagers undergo an important developmental stage, whereby learning to “marshal their thoughts, measure their impulses and think abstractly may lay important neural foundations that will last throughout their lifetime.” Trauma and abuse at this stage, however, can negatively impact an adolescent’s brain functioning and ability to learn, thus hindering her future opportunities. (See: Adolescence: A Time That Matters, UNICEF, 2002, p.7)

Laws should not allow exceptions for the minimum age for marriage. Although some governments allow a lower minimum marrying age with third-party consent, research indicates that girls who marry younger face harmful consequences of early marriage. Girls who marry early are at greater risk of domestic violence, are more inclined to believe wife beating is justifiable, are more likely to soon bear additional and greater numbers of children, are less able to negotiate safe sex, face a greater risk for contracting HIV/AIDS and STIs, are at increased risk for obstetric fistula, are denied their rights and recognition as a person, and are less likely to obtain education. (See Is Teen Marriage a Solution, Center for Law and Social Policy, p.8; Early Marriage: A Harmful Traditional Practice, UNICEF, 2005, p.27; and A Time That Matters, UNICEF, 2002, p.27-28) Furthermore, the risks of maternal and infant mortality are greater when girls give birth as adolescents.

Illustrative Example: India: The Karnataka high court recently ruled that the Prohibition of Child Marriage Act (PCMA) has an overriding effect over Muslim law, which allows marriage of girls once they reach puberty  The PCMA prohibits marriage of males under the age of twenty-one and girls under the age of 18, making marriage voidable at the option of the party who was a child at the time of marriage.  Male adults who contract a child marriage can be punished with “rigorous imprisonment which may extend to two years,” a fine, or both.  In a case challenging the PCMA, a seventeen-year-old girl filed a petition for a declaration that the PCMA was not applicable to Muslims.  The court held that the PCMA was far-reaching and was applicable to all communities, including Muslims.