CHILD MARRIAGE & THE LAW
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| Girls Not Brides |
WHY IS IT IMPORTANT FOR COUNTRIES TO SET 18 AS THE MINIMUM LEGAL AGE OF MARRIAGE?
Laws that set a minimum age of marriage are an important way to safeguard boys and girls from being married before they are ready.
It is important that children are recognised in the law as being children and that they are accorded the full protection of the law.
Governments need to have clear and consistent legislation that establishes 18 as the minimum age of marriage. Adequate safeguards must be in place to ensure that parental consent or other exceptions are not used to force girls into marriage.
The existence of laws that set a minimum age for marriage is an important tool that helps those working to dissuade families and communities from marrying off their daughters as children.
DO ALL COUNTRIES HAVE A MINIMUM AGE OF MARRIAGE?
Most countries around the world have laws that set a minimum age of marriage, usually at age 18.
However, many countries provide exceptions to the minimum age of marriage, upon parental consent or authorisation of the court. Other exceptions allow customary or religious laws that set lower minimum ages of marriage to take precedence over national law. Such exceptions undermine the efficacy of legal protections against child marriage.
According to a 2013 mapping of minimum age of marriage laws by the World Policy Analysis Center, 93 countries legally allow girls to marry before the age of 18 with parental consent.
Legal frameworks can reinforce, rather than challenge, gender inequalities. [1] The World Policy Analysis Center found that 54 countries allow for girls to marry between one and three years younger than boys.
[1] World Policy Analysis Centre, Changing Children’s Chances: New Findings on Child Policy Worldwide, 2013
WHY SHOULD 18 BE THE MINIMUM AGE OF MARRIAGE?
Girls Not Brides members believe that 18 should be the minimum age for marriage in line with international human rights standards.
Setting the minimum age of marriage at 18 provides an objective rather than subjective standard of maturity, which safeguards a child from being married when they are not physically, mentally or emotionally ready. Why allow children to marry at an age when, for example, they do not have the right to vote or enter into other contracts recognised in law? The most widely accepted definition for a child is 18, in line with the Convention on the Rights of the Child.
A minimum age of marriage of 18 will also help to ensure that children are able to give their free and full consent to marry and have the minimum level of maturity needed before marrying.
WHAT DOES INTERNATIONAL LAW SAY ABOUT CHILD MARRIAGE?
Child marriage or marriage without the free and full consent of both spouses is a human rights violation and is not in line with several international and regional agreements, including:
- Universal Declaration of Human Rights
- Convention on the Elimination of Discrimination Against Women (CEDAW)
- Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriage
- Convention on the Rights of the Child (CRC)
- Protocol on the Rights of Women in Africa to the African Charter on Human and Peoples’ Rights (Also known as ‘The Maputo Protocol’)
- African Charter on the Rights and the Welfare of the Child
- Inter-American Convention on Human Rights
Many international instruments call for a uniform age of marriage and emphasise the importance of free, full and informed consent to marriage.
The CRC recommends that the minimum age of marriage be 18 years, while CEDAW obligates States to ensure, on the basis of equality between men and women, the right to freely choose a spouse and enter into marriage only with free and full consent.
A full list of provisions from International and Regional Instruments relevant to protection from child marriage, prepared by the Africa Child Policy Forum can be found here.
HOW USEFUL ARE INTERNATIONAL AND REGIONAL STANDARDS ON MINIMUM AGE OF MARRIAGE IN PROTECTING CHILDREN FROM CHILD MARRIAGE?
International and regional agreements prohibiting child marriage set standards that governments should adhere to in protecting children from being married before they are ready. These standards also act as an accountability measure: governments have to report to the committees that oversee them about how they are implementing the standards.
They can be used to hold governments accountable for failure to implement and enforce their obligations related to child marriage under these conventions.
Photo credit: Dominic Chavez | World Bank
WHAT ARE THE CHALLENGES IN ENFORCING LAWS THAT PROHIBIT CHILD MARRIAGE?
Even where strong legal frameworks exist, their enforcement is often weak. Here are some common problems – and possible solutions.
Problem: Age of marriage laws contradict each other. Solutions: Define a child as an individual under the age of 18, without exception. Set the minimum legal age of marriage for both males and females at 18. Harmonise all legal systems (civil, criminal, family and customary) to that standard.
Problem: Child marriages happen outside of the law. Solutions: Work with religious and traditional leaders to raise awareness of the law, the harmful impact of child marriage and alternatives for girls. Make sure they ask for proof of age before a wedding and report child marriage cases to the relevant authorities.
Problem: Birth and marriage registration is weak or non-existent. Solutions: Make birth and marriage registration mandatory and free (or low cost). Make sure there is an effective civil registration system by investing in the infrastructure and training of local authorities.
Different religions or traditions’ position on child marriage are misinterpreted. Solutions: Meet and create space for respectful dialogues with religious and traditional leaders. Promote alternative interpretations of religious texts to show that no religion promotes child marriage. Make religious and traditional leaders aware of the negative impact of child marriage.
Child marriage happens in rural areas with few resources to implement the law. Solutions: Create or strengthen child protection systems. Support legal aid systems and services.
Underage victims of child marriage struggle to take their case to court, due to their age, knowledge or resources. Solutions: Train local law enforcement authorities to respond to child marriage and gender-based violence cases. Strengthen access to free legal services for victims of child marriage.
IS MINIMUM AGE OF MARRIAGE LEGISLATION ENOUGH TO END CHILD MARRIAGE? WHAT ELSE IS NEEDED?
As well as having strong and enforceable minimum age of marriage legislation, it is imperative that to have strong supporting legislation which protects women and girls’ rights.
This would include, for example, laws related to marriage and divorce, consent, harmful traditional practices (e.g. dowry, bride price and female genital mutilation/cutting), citizenship, property, inheritance, alimony, custody of children, sexual and gender-based violence (including marital rape), child labour, slavery, child trafficking and sex trafficking among others.
However, law reform is only one part of the solution. In order to prevent child marriage, a holistic and comprehensive approach must be adopted which addresses the root causes of child marriage. Visit our ‘Theory of Change’ for an overview of what an effective response to child marriage entails.
