Since 2017, marriages concluded abroad are automatically invalid if one of the partners was under 16. The Federal Court of Justice considers this to be problematic. What do the constitutional judges say about this?
How do you deal with very young people from abroad who are not allowed to marry in Germany? The black-red federal government decided in 2017 to take more consistent action against such child marriages – but there are concerns as to whether this is going too far.
The Federal Court of Justice (BGH) involved the Federal Constitutional Court in 2018. Now there is a decision, it will be published today (9.30 a.m.).
The grand coalition of CDU/CSU and SPD had seen a need for action because, against the background of the increased number of refugees, more and more underage married people had come to Germany. “Children don’t marry, children get married,” Federal Minister of Justice Heiko Maas (SPD) said at the time.
That’s exactly what it’s about
According to the legal situation that has been in force since then, one must be of legal age in order to be able to marry. If one partner was only between 16 and 18 years old, 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.
In Karlsruhe it is only about the last group, i.e. the under-16s. The BGH should have applied the new provision in the case of a Syrian couple, but considered it constitutionally problematic because the effectiveness 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.
Discussions about the Karlsruhe trial
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.
The Karlsruhe proceedings also sparked discussions because the President of the Constitutional Court, Stephan Harbarth, was still the Union’s parliamentary group leader in the Bundestag in 2017. Harbarth, who chairs the First Senate responsible for the process, said he was “intensively involved in the preparation and passage of the anti-child marriage law.” Nevertheless, his Senate colleagues saw no reason to doubt his impartiality. They decided in 2019 that he could work on the process. (Az. 1 BvL 7/18)
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