By Jacqueline Kusserow
Abstract
Each year, 15 million girls are married before the age of 18. That is 28 girls every minute. 1 every 2 seconds. Child marriage is considered to be a human rights violation yet it is an age old tradition that persists in many parts of the world. Today around 1475 married children live in Germany due to the refugee movement – and are likely to stay in Germany. The issue is no longer confined to the originating countries but reaches “the West” and its courts. After a heated debate, the German coalition now agreed on a legislation declaring child marriages under 16 null even if they were rightly married in their country. The Canadian context could be equally suitable for such a legislative advance to further the fight against child marriage. The discussion on such a law goes to one of the core questions of the current refugee crisis: is cultural acceptance a one-way or two-way street? When it comes to child marriage, cultural acceptance could very well come off second best.
Table of Contents
Abstract i
Table of Contents ii
I. Introduction 1
II. Child marriage 2
a. Facts 2
b. Reasons and consequences 3
III. Clash of cultures in Germany: cultural acceptance? 5
IV. Child marriage: application of law and politics of law 8
a. The legal situation so far 8
b. New child marriage legislation in Germany 10
c. The debate 11
V. A law against child marriage: putting down a marker? 14
VI. What Canada could learn from the German example 17
VII. Conclusion 19
Child marriage among German refugees: how cultural acceptance is the casualty of a clash of cultures
I. Introduction
Each year, 15 million girls are married before the age of 18. That is 28 girls every minute. 1 every 2 seconds.[1] Child marriage is considered to be a human rights violation yet it is an age old tradition that persists in many parts of the world. During the refugee crisis, 1,170,000 refugees have entered Germany in 2015 and 2016.[2] Due to this, around 1,475 married children live in Germany[3] – and are likely to stay. The issue is no longer confined to the originating countries but reaches “the West” and its courts. After a heated debate, the German coalition agreed on a legislation draft declaring child marriages under 16 null even if they were rightly married in their country.[4] The discussion on this new law goes to one of the core questions of the current refugee crisis: is cultural acceptance a one-way or two-way street? When it comes to child marriage, cultural acceptance could very well come off second best.
This paper explores opposing perspectives on child marriage and its legal (and) cultural repercussions on a country like Germany. Besides being an issue of considerable controversy also in its originating countries, the problem of child marriage is even more elevated in a western country like Germany. Cultures clash and this highlights the relevant issues with child marriage in a pronounced way.
I will first set out facts, reasons, and consequences of child marriage (II.). Then I will elaborate on cultural acceptance in a general cultural sense and a legal cultural one (III.). Next, I will present the relevant legal and legal political considerations surrounding the question of child marriage among refugees in Germany, explaining the new legislation (IV.). Sub-chapter V. will discuss the merits of a legislative solution and how the new legislation walks this fine line. Finally, I will elaborate on what Canada could learn from the discussion in the German context (VI.).
II. Child marriage
a. Facts
The expression child marriage seems to be a contradiction in terms. “Marriage is a formalized relationship with legal standing between an individual man and woman, in which sexual relations are legitimate.”[5] One does not associate children with such a definition. This paradox displays the problematic notion of child marriage.
Throughout the world, “more than 700 million women alive today were married as children”, and one in three child brides were married before the age of 15.[6] Most of the child marriages happen in South-Asia with India accounting for one-third of all child marriages there.[7] However, child marriages do not only occur in developing countries but also for example in the United States.
Interestingly, in many of the countries affected the legal age for marriage is 16 or 18. Either, exceptions allow for the wedding at an earlier age, or the legal age of marriage is disregarded resulting in children being married nonetheless.[8] Also, there is the difference between normal state law and religious law. In India, child marriage is a criminal offense on the one hand, but it is valid under the religious law, on the other.[9] The Muslim Personal Law is based on the Sharia and sets the age of 15 as marriage age. Children or parents on behalf of their children can arrange earlier marriages though.[10] The Indian Child Marriage Restraint Act of 1929 is silent on the validity or invalidity of underage marriage.[11] In Syria, the general marriageable age is 18 for boys and 17 for women, but there is an exception allowing marriage at the age of 15 respectively 13.[12]
Internationally, no consensus exists so far as to when a marriage is a child marriage since there is no uniform consent age.[13]
Overall, child marriage is declining.[14] While it has been an issue in Bangladesh, for instance, this is not anymore the case, in the same way, today. However, to maintain this trend, “the rate of decline must accelerate.”[15]
b. Reasons and consequences
Child marriage is an age-old tradition in many parts of the world. One can highlight several reasons for this:
(1) Patriarchic hierarchies in society,
(2) the control over female’s sexuality to prevent improper sexual relationships,
(3) economic reasons,
(4) the idea that the wish of the girl does not matter,
(5) the belief that there is no alternative, and
(6) a lack of awareness of health issues and the law.[16]
Concerning number (2) the underlying reason is that the purity of a woman is seen as an honor for the family and the husband. The younger a bride is, the lower the risk that others contest her virginity.[17] Economic reasons perpetuate child marriage in so far, as the parents of the girls have to pay a so-called dowry to the bridegroom’s parents for the wedding. This amount of money rises the older the girl gets, and hence parents tend to marry their daughters off earlier to prevent high dowries.[18] Number (5) stems from the fact that certain societies see marriage as the ultimate purpose or role of a woman. Additionally, for some regions of the world access to education is limited for girls. Parents also fear sexual abuse or misbehavior if girls have a long way to school, so they keep them at home instead.[19]
Consequences of child marriage are a lack of education for girls (which further perpetuates child marriage), an early pregnancy which causes higher rates of mortality for girls at a young age[20], and higher risks of domestic and sexual violence.[21] They risk infections with STDs and HIV since young women are more vulnerable to transmission.[22] Child marriage is regarded as a human rights violation (the right to equality, the right to non-discrimination on the grounds of sex and gender, the right to liberty and security) [23] although it has to be kept in mind here, as mentioned above, that there is no minimum age of marriage in international conventions. Apart from this, girls are deprived of an unburdened childhood since they are (depending on the age) confronted with tasks of an adult life. Finally, child brides can suffer from mental health problems (“in India, child marriage (…) [has] been associated with depression”).[24]
III. Clash of cultures in Germany: cultural acceptance?
The refugee crisis – like every major immigration movement – causes a clash of cultures in Germany. The situation is especially elevated since so many refugees came in such a short period of time (and still keep on coming). Child marriage is only one facet of this clash of cultures. In Germany, the immigrating refugees and the political reaction to it have caused societal responses in every imaginable way (from outspoken support and high levels of volunteering projects to outright outrage). It is a topic that is not only discussed rationally, but that triggers many emotions as well. The underlying question is: how far can cultural acceptance go?
As is often the case, there is no one-fits-all answer. Different cultures can benefit from and enrich each other, and through new influences, a society can adapt and develop in unexpected ways (in a positive sense). Nevertheless, there are limits to this. A culture would lose its distinctiveness if it completely adapted to its immigrants. Persisting on these boundaries is not only vital for a society to maintain its character but also in the interest of immigrants. After all, many of them will have come to the other country because its cultural framework offers appealing differences to their originating countries. Additionally, it is a matter of respect to the host country to behave accordingly – when in Rome, do as the Romans do. An age old saying that has lost none of its applicability. If the host state offers services and shelter to an immigrant, it seems just to demand something in return. The counter example (or the extreme example of the Roman saying) is the absolute persistence on the host state’s cultural customs. Such an approach is probably not feasible in today’s world. When the Canadian town of Hérouxville adopted the Hérouxville Code, which obliged all newcomers to adhere to a very one-sided (discriminating) set of values, a public outcry followed.[25] The town revised the Code eventually. So cultural acceptance in this sense is a two-way and not a one-way street.
The legal culture of a country can rightly be seen as one of the biggest achievements of society. This fact raises a couple of questions. If it is part of the culture does the same reasoning as just developed apply here as well? On the other hand, if it is such a crucial part of society would it not be fitting to exercise more caution with legal cultural acceptance? Does legal cultural acceptance lead to a parallel society and one that is more “dangerous” for the dominating legal culture than a parallel society in general? Then again, when is integration truly successful: when immigrants have to adhere to the exact same legal standards as Germans or when they are allowed deference to their legal culture? Finally, can legal culture really be separated from general culture? The Constitution and laws, in general, could, after all, in most cases be called coagulated culture.
That the legal culture is of great significance can be seen by the fact that judges in Germany offered free introductory courses to the German Rechtsstaat and the constitutional rights and its values to refugees.[26] It was also discussed to provide each refugee with a translation of the Constitution. These are measures that are meant to highlight the dominance of the German legal culture vis-à-vis the foreign one (particularly regarding religious legal cultures such a Sharia law). They could be criticized for not being culturally sensitive or lacking deference to a minority legal culture in Germany. Other cultures perceive of justice in different ways and might teach us to reflect on the justifications of our culture and see different perspectives.[27] Accepting parts of another legal culture does not immediately lead to a complete change of German legal culture.[28] But conversely, in today’s society, there is also the risk of being too deferent just for the sake of cultural sensitivity.[29] Especially with Germany people in- and outside the country are fast to condemn national pride because of the Nazi history. The country might sometimes be more prone to be deferent to other influences just to dissociate itself from its past wrongdoings. In this vein of thought “reflexivity, not mere sensitivity,” could be appropriate.[30]
Child marriage can be said to lie at the border between general cultural/moral questions and legal issues. The question how far can legal cultural acceptance go, lies at the foundation of the discussion on how to deal with cases of married children in Germany. Can legal cultural acceptance be a two-way-street too or are we dealing with a one-way-street here (in that German law has precedence over foreign law)?
IV. Child marriage: application of law and politics of law
When talking about child marriage in Germany and its acceptance or non-acceptance two different things have to be distinguished: a pure legal reasoning and arguments of a “politics of law” nature (Rechtspolitik). These are considerations of different purpose and background despite them overlapping at some point. Rechtspolitik takes the broader picture into account and thereby ensures that a new law does not disrespect non-legal, yet important, aspects. Such a holistic approach is crucial for a topic like child marriage because, as we will see, there are many things to consider. Legal political aspects can also be especially helpful in determining the need for exceptions to a general rule.
a. The legal situation so far
The law in Germany so far allowed marriage at the age of 18 or with a special permit at the age of 16, §§ 1303, 2 Bürgerliches Gesetzbuch (civil code of Germany). Marriages undertaken at an earlier age are voidable, § 1314 (1) Bürgerliches Gesetzbuch. Germany is in general reluctant to interfere with foreign law. Marriages made abroad are evaluated according to the applicable foreign law, Art. 13 Einführungsgesetz zum Bürgerlichen Gesetzbuch (conflict of laws code of Germany). If, however, the relevant foreign law is contrary to public policy (Art. 6 Einführungsgesetz zum Bürgerlichen Gesetzbuch) this rule is not applied. It will then be checked whether the marriage is still valid under the foreign law without the application of the law breaching public policy. If the result leads to a still valid marriage and this result is not in contradiction to German law, the marriage will be recognized in Germany.
Based on this legal situation, German courts decided a case concerning two Syrian refugees. A 14-year-old girl and an 18-year-old boy (cousins) married in Syria before fleeing to Germany.[31] Upon arrival the lower court Amtsgericht Aschaffenburg separated the child couple due to child protection reasons.[32] The case was brought before the higher court Oberlandesgericht Bamberg which approved of the marriage adopting the above reasoning.[33] Even if a Syrian provision allowing for marriage at the age of 13 was left without application, the marriage was only voidable and not void. As mentioned above, German law stipulates the same result for marriages under 16, § 1314 Bürgerliches Gesetzbuch.
The court left the answer to the question whether or not the Syrian law was a violation of the public policy principle open.[34] There is so far no uniform jurisprudence whether or not underage marriage is against public policy.[35] However, the above case is pending before the Bundesgerichtshof, the supreme court of Germany, which may provide a guideline for courts in its decision. The court could also decide whether or not underage marriages could exceptionally be seen as null regardless of § 1314 Bürgerliches Gesetzbuch if a public policy violation is affirmed. Since German law can exceptionally allow marriages at the age of 16, a public policy violation can generally not be argued for if the spouses are 16+. For marriages under 16, it depends on a case-by-case decision. The younger the child, the more likely is it that a marriage will be a violation of public policy. This is not only true because of the marriageable age but also due to criminal provisions in Germany. Sexual acts with children under 14 are criminalized as sexual abuse of children, § 176 Strafgesetzbuch (German criminal code). Sexual acts with under 18-year-olds are criminalized as sexual abuse of youths, § 182 Strafgesetzbuch. However, there are further qualifications necessary. The criminalization of sexual acts with under 18-year-olds requires the exploitation of a plight, § 182(1) Strafgesetzbuch. For § 182(3) Strafgesetzbuch (sexual acts between over 21-year-olds and under 16-year-olds) the criminalization depends on the ability of sexual self-determination. Apart from that rape is of course criminalized in general, § 177 Strafgesetzbuch. The general criminalization for under 14 and the need for further qualifications for under 18 display the different standards that have to be applied.
b. New child marriage legislation in Germany
For future cases, the German legislator clarifies the situation with a law (Gesetz zur Bekämpfung von Kinderehen) that has passed the last legislative phase on 7 July 2017[36] and came into force on 22 July 2017.[37] The new law raises the marriageable age to 18 years without exception,[38] declares child marriages under 16 null,[39] and under 18 voidable.[40] This is the case regardless if the marriage was legally undertaken abroad.[41] With such a law an underage marriage would be a violation of public policy and any legal consequence short of nullity would be in contradiction to German law.[42] The new legislation allows two exceptions to the voidability of marriages from age 16 but under 18. First, if the minor spouse, after reaching the age of 18, confirms the will to continue the marriage or, second, if it would be such an exceptional hardship for the minor to declare the marriage void that it is indicated to uphold the marriage.[43]
The legal situation so far gave considerable weight to the foreign law. In general cases with a connection to foreign law were dealt with in a (to stick with the picture) two-way-street manner under German private international law. Foreign law was given preference, and its results had then to be weighed against German law and legal values. This way it was not only ensured that the foreign legal tradition is respected and not tampered with but also that no circumstances arise that violate or are in stark contrast to the German legal culture.
The changes that are brought about by the child marriage legislation do not in principle alter the perception of the German legal system towards other legal cultures. But it is a clear decision against one aspect of another legal culture: child marriage.[44] For this single topic, the German legislator chose a one-way-street option. And legal cultural acceptance is a casualty to a clash of cultures.
c. The debate
Below, I will now debate different views on child marriage.
The topic triggers strong opinions such as the one of a German politician who described the legal understanding allowing for child marriages as medieval.[45] For some politicians, the government’s decision for the draft legislation did not come fast enough. They criticized that Sharia law was ruling in Germany while the legislation was debated.[46] However, this is of course not a black and white matter. And one has to be prudent in not discussing topics of such stark contrast to the culture we know “in extremely simple, arid terms, terms that fit poorly within the complexity of actual situations (…) pushing us towards all-or-nothing solutions.”[47]
There are many fears connected to the child marriage question: will the acceptance of child marriage lead to some kind of marriage tourism?[48] Will child marriages be incentivized in Germany? And does the acceptance of child marriages send the wrong message? Because child marriage often deprives the girls of education at a very young age, they risk severe complications of early pregnancies when their bodies are not fully developed, and they are more likely to be a victim of domestic and sexual violence (concerning the latter see the respective criminal code provisions above which would apply in many cases).[49] Additionally, some argue that a distinction has to be made “between accommodating or respecting cultural customs and using culture as a pretext to deny equality.”[50] So again, close reflexivity instead of sensitivity leading to too fast and too many concessions to another legal culture? Furthermore, (especially) girls are often forced into the marriages without having a choice. This is contrary to the German understanding of marriage which is based on consent and the full understanding of all effects. For this reason, the German legislator set the consent age to marriage to 18.
But from what age on do children know what they want and where do you set the line? Is a 14-year-old Syrian girl who experienced war really comparable to a German girl of the same age? The Syrian may be much more mature due to its experiences and may also have a different perception of marriage and of what is normal if, for example, its mother was married early too. Also, some ask what happens to wife and possible children in their communities if the marriage is not accepted in Germany. After all, many children are married to maintain their moral and bodily purity. Being married may decide about their social standing. Even if they live in Germany, where divorced women have more rights than in some other countries, declaring a marriage null can have severe effects. If a woman were married in Syria at the age of 13 and immigrated to Germany with her husband and children, the marriage would be null according to the possible new legislation. The effect is that children would be born out of wedlock and the woman would not have a hereditary title and alimony claims.[51]
Why should Germany interfere with a rightful legal act with which it had nothing to do? Why should one country have the right to decide about the legal and personal relationships of a person which have been performed before that person set foot on German ground? Also, the marriage is a constitutionally protected right in Germany, Art. 6 Grundgesetz (German Constitution). Should this only apply to Germans? Wouldn’t this be a form of double-standard? On the one hand, we expect our immigrants to adhere to the Grundgesetz, but on the other hand, we deny them constitutional rights just because they are foreigners. This is particularly true since Art. 6 Grundgesetz is not a so-called Deutschen-Grundrecht, which means it is not a constitutional right that only applies to Germans. These are provocative questions.
They can be countered by saying that a child marriage is not comparable to any other marriage but a special case in which different constitutional rights and legal values have to be weighed and where the right to marriage does not prevail. Child marriage will often violate child protection principles. Child marriage will probably not fall under the definition of marriage in Art. 6 Grundgesetz and even if it does infringements on the Constitution protection of marriage can be justified by important legal values or other constitutional rights.
Another point to consider here is a comparison to cases where different legal traditions were given deference to or at least special adjustments were made. In the Bearwalker case, the court respected distinct indigenous cultural aspects in the legal evaluation of the case.[52] But ultimately I think that matters concerning indigenous people are not comparable to cases where the acceptance of the legal tradition of immigrants is in question. There is a stronger argument for respecting indigenous legal traditions because they were there beforehand. Immigrants join another legal tradition whose people could, with regard to the immigrants, be called the indigenous population.
V. A law against child marriage: putting down a marker?
Germany is a very liberal Rechtsstaat which takes great care in weighing different rights. Does this not speak for leaving the question of child marriage safely in the hands of the courts to evaluate on a case-by-case basis the various perspectives laid out above? While this may be advantageous in many cases, there are good reasons for a law too.
A political decision to promote one thing can be against individual interests; it lies within the nature of legislation that not all interests can be served. However, concerning child marriage, it has to be noted that there is also much opposition in the originating countries themselves. Girls stand up for their rights and parents give in to their wishes and gradually change their own view.[53] So the legislation might be in the interest of the most important person. A law can be empowering and promote social change.[54] It is hard to change behavior only through law, a multi-faceted approach is necessary.[55] But a law is sending the message: no to child marriage. Such a message from a country with worldwide political standing can help promote change elsewhere too. And in any case, legal protection is the basis for protection of children.[56]
The legislator would have to make a well-informed[57] decision to accommodate different cases. A possible law would need enough room for exceptions. Where the evaluation of a child reveals a greater level of maturity than would be guessed by the age (see above comparability between Syrian and German children) or where a marriage was not forced but was undertaken out of love (as was the case in the described case study above) other standards should be applied. This way the German legislator would put down a marker but at the same time remain open to a nuanced, case-by-case consideration of judges. A very thorough assessment of the facts is necessary since there may also be cases where girls seemingly consented but in reality only did so because they wanted to obey their families and tradition. Taking this risk into consideration, it may be safer to stipulate the nullity because even if a marriage would be voidable, a girl might not exercise its rights because this is not an allowable behavior in its community.[58]
A ban on child marriages could also harmonize the current legal situation between the private legal status and a possible criminal accountability. So far, a marriage could be legal under private law, but a spouse could still be charged with criminal offenses (as seen above).[59] Banning child marriages is more consistent with the existing criminal law provisions and prevents spouses from being charged with sexual abuse for a sexual relationship that the spouse might regard as normal. A harmonization of private and criminal law would provide for a clearly comprehensible legal situation.
The biggest challenge of a legislative solution is the effect of nullity for refugees in Germany as set out above. Fleeing to Germany can then leave the refugees in a precarious situation. They would face tremendous legal challenges to achieve the same rights as German spouses have. And even if the nullity is principally in the interest of the woman she would, without any education, almost instantly be in extreme dependency of the state. For her, a nullity of the marriage could be a blessing but very well also a curse.
Ultimately, the decision for a law instead of regulation through courts has two main reasons: politics and ensuring legal certainty (Rechtsfrieden). It is important to understand both in the context of a country like Germany where child marriage is not a custom. A cynical argument could be that the custom persists in countries like India despite enactment of legislation setting the legal age of marriage for girls at 18. The question whether this is an argument against the force of law could be explored in a paper of its own. For the purposes of this paper, I believe that legislation against child marriage in Germany could be a bar against the custom establishing itself in Germany due to the refugee crisis.
The new law that is in force now walks this fine line with consequence as well as sensitivity. It is strict regarding marriages under the age of 16 by not providing any room for exceptions, but proves more flexible for marriages from 16 but under 18 years. The two stipulated exceptions ensure that cases of love or the ones where a dissolution would put the minor in a precarious situation are acknowledged. It will have to be seen how courts interpret the exceptional hardship that is required, that is, if they rather lean towards the general rule of a ban on child marriages or if they act in a more lenient way. The jurisprudence will play a major role in how effectively the legislation puts down a marker.
VI. What Canada could learn from the German example
The above considerations could equally be applied to a Canadian context since Canada is based on similar societal and constitutional values as Germany. According to the Civil Marriage Act, the legal age of (civil) marriage is 16 throughout Canada.[60] However, each province sets the majority age and can legislate whether marriages under 18 or 19 require parental consent.[61] Marriage under the age of 16 is a criminal offense.[62] Concerning marriages performed abroad, Canadian courts pronounce their validity regardless of the lower deviation of the age of 16 as long as the spouses are not married already, are mentally competent, and the marriage is not prohibited due to consanguinity or affinity.[63]
Canada is an active party to the fight against child marriage[64] and recently announced to invest $650 million.[65] Nevertheless, the legal situation in Canada is comparable to the one in Germany before the new legislation, and it is pointed out that the possibility of parental consent to a marriage under 18 can be abused for forced marriage.[66] Canada is traditionally a country with many immigrants, so child marriage is a question of importance here too. In fact, figures regarding Ontario and Québec and experiences by affected women indicate that child marriage is more common in Canada than one would think.[67] Canadian children are sent abroad to get married there, or child brides immigrate to Canada. To give even more credibility to the Canadian initiatives against child marriage worldwide a legislation such as the German one would be very welcome.
It has to be kept in mind, though, that the German legislation was triggered by the influx of refugees and increased numbers of child brides in Germany. The political situation in Germany required decisive actions and provided the necessary pressure to push the legislative process beyond debate. The debate in Canada is less heated since Canada has not been hit by the wave of refugees as Europe has.[68] While it could be critically claimed that Canada’s efforts to fight against child marriage are hypocritical if a stricter legislation does not prevent child marriages in Canada itself, the political environment might lack the necessary drive to bring about a change comparable to the German example.
VII. Conclusion
The above depicts a very complex situation. In countries like Germany and Canada, one is tempted to make a fast judgment; the gut feeling of Westerners says “this cannot be right and should be consequently forbidden.” We think of “archaic custom”, “backward tradition that deprives children of their childhood”, “sexual abuse”, and “psychological problems for the children”.[69] Accordingly, it might seem strange to even think about legal acceptance with regard to a practice as alien to us as child marriage. But a closer look reveals a more nuanced picture. Perhaps it is even too complex to make a final judgment here.
I am nevertheless of the opinion that child marriage is a point where legal cultural acceptance should find an end and be a one-way-street with deference to the dominating German or Canadian legal culture. A principle like “no condemnation without conversation” might be hard to apply to child marriage since the conflict between the respective principles behind marriage is so strong. However complex the issue is, it cannot be contested that it is incommensurable with German and Canadian legal values and contrary to what most of us would accept as being tolerable. Although it might not always be decisive for legislation what the society thinks, integration can only be successful if some practices that are contrary to what the broader community considers as “irreducible”[70] are forbidden. Otherwise, the gap between immigrants and host state would be too big to bridge. Accepting that legal cultural acceptance is in this case a casualty to a clash of cultures, therefore, might benefit both sides if a legislative solution is well thought through. Hence, the recent German advance in the fight against child marriage is to be welcomed and would be equally fitting for Canada.
Notes
[1] “Child protection from violence, exploitation and abuse” (29 August 2016) at “child marriage”, online: Unicef <https://www.unicef.org/protection/57929_58008.html> [Unicef].
[2] „Flüchtlinge in Deutschland“, online: Landeszentrale für Politische Bildung Baden-Württemberg <www.lpb-bw.de/fluechtlingsproblematik.html>.
[3] „1475 Minderjährige in Deutschland sind verheiratet“, Spiegel Online (9 September 2016), online: Panorama <www.spiegel.de/panorama/gesellschaft/kinderehen-1475-minderjaehrige-in-deutschland-sind-verheiratet-a-1111624.html>.
[4] Martin Lutz, “Koalition einigt sich auf das Verbot von Kinderehen” (14 February 2017), online: Politik Deutschland <welt.de/politik/deutschland/article162077069/Koalition-einigt-sich-auf-das-Verbot-von-Kinderehen.html> [Lutz].
[5] Jaya Sagade, Child Marriage in India (New Dehli, India: Oxford University Press, 2005) at xxvi [Sagade].
[6] Unicef, supra note 1.
[7] Ibid.
[8] Sagade, supra note 5at xl.
[9] Ibid at 73.
[10] Ibid at 79.
[11] Ibid at 52.
[12] Art. 16, 18 Syrian personal law; OLG Bamberg, Beschluss vom 12.05.2016 – 2 UF 58/16 at para 21 [OLG Bamberg Beschluss].
[13] Sagade, supra note 5 at 2.
[14] Unicef, supra note 1 at „child marriage“.
[15] Ibid.
[16] Sagade, supra note 5 at 7ff.
[17] Ibid at 9.
[18] Ibid at 11.
[19] Ibid at 11, 12.
[20] Ibid at 21, 15.
[21] “Child marriage” at “Because I am a girl”, online: Plan Canada <plancanada.ca/child-marriage>; Unicef, supra note 1 at „child marriage“.
[22] Sagade, supra note 5 at 18.
[23] Ibid at 132ff.
[24] Ibid at 21.
[25] Graeme Hamilton, “The Hérouxville Code” (30 December 2007), online: National Post <www.nationalpost.com/h%C3%A9rouxville+code/206887/story.html>.
[26] CDU will Vorrang der deutschen Gesetze vor der Scharia“ (28 November 2015), online: Politik Deutschland <welt.de/politik/deutschland/article149380959/CDU-will-Vorrang-der-deutschen-Gesetze-vor-Scharia.html>.
[27] Jeremy Webber, “Multiculturalism and the Limits to Toleration” in André Lapierre, Patricia Smart & Pierre Savard, eds., Language, Culture and Values in Canada at the Dawn of the 21st Century (Ottawa: International Council for Canadian Studies, 1996) 269 at 273-275 [Webber].
[28] Ibid at 274.
[29] David Howes, “Introduction: Culture in the Domains of Law” (2005) 20:1 Can. J. Law Soc. 9 at 10.
[30] Ibid at 10.
[31] OLG Bamberg Beschluss, supra note 8 at para 1.
[32] Ibid at para 4, 5.
[33] Ibid at para Leitsätze.
[34] Ibid at para 24.
[35] Ibid at para 23.
[36] „461/17 Gesetz zur Bekämpfung von Kinderehen“ (7 July 2017), online: Bundesrat <https://www.bundesrat.de/SharedDocs/beratungsvorgaenge/2017/0401-0500/0461-17.html>.
[37] Gesetz zur Bekämpfung von Kinderehen (2017) 2017:48 Bundesgesetzblatt Teil I, online: Bundesanzeiger <https://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&start=//*[@attr_id=%27bgbl111s2429.pdf%27]#__bgbl__%2F%2F*%5B%40attr_id%3D%27bgbl117s2429.pdf%27%5D__1502126129515> [Gesetz Kinderehen].
[38] Ibid at Art. 1 (2).
[39] Ibid.
[40] Ibid at Art. 1 (4).
[41] Ibid at Art. 2 (1); Lutz, supra note 4.
[42] The discussion is connected to the aim of raising the age of consent to marriage to 18 in all cases.
[43] Gesetz Kinderehe, supra note 27 at Art 1 (5).
[44] Especially for marriages under 16 since there are no exceptions possible.
[45] Julia Niemann, “Hochzeit mit 14“ (27 January 2017) at 2, online: Gesellschaft <zeit.de/2017/03/kinderehen-fluechtlinge-integration-religion>.
[46] Lutz, supra note 4.
[47] Webber, supra note 26 at 272
[48] „Kinderehen unter Flüchtlingen? Deutsches Recht sagt: „Gehören geschieden.“ –Anwältin“ (2 June 2016), online: <https://de.sputniknews.com/gesellschaft/20160602310325998-kinderehen-fluechtlinge-deutschland/>.
[49] Unicef, supra note 1.
[50] Sagade, supra note 5 at 223.
[51] Hans-Otto Burschel, “Die sogenannte “Kinderehe”” (4 November 2016), beck-community beck-blog (blog), online: <https://community.beck.de/2016/11/04/die-sogenannte-kinderehe>.
[52] R v Jacko (1997), [1998] 1 CNLR 164 at page 14, 15.
[53] “Girls stand up to stop child marriage”, online: Because I am a Girl Movement < https://plan-international.org/what-we-do/because-i-am-girl/priorities/child-marriage/girls-stand-stop-child-marriage>.
[54] Sagade, supra note 5 at xxix.
[55] Ibid at xxixx, 225.
[56] Ibid at 221.
[57] Ibid at 99.
[58] Ibid at 55.
[59] On the other hand it may also be questionable whether a marriage can be deemed to not violate public policy when criminal misconduct is in question. In the case study a sexual abuse was not in question.
[60] Civil Marriage Act, SC 2005, c 33, s 2.2.
[61] See e.g. Justice Québec, “Legal age for marriage”, online: <https://www.justice.gouv.qc.ca/en/couples-and-families/marriage-civil-union-and-de-facto-union/marriage/conditions-of-marriage/legal-age-for-marriage/>.
[62] Criminal Code, RSC 1985, c. C-46, s 293.2.
[63] „Marriage“ (2 February 2017), online : Canada International <www.canadainternational.gc.ca/united_kingdom-royaume_uni/consular_services_consulaires/marriage.aspx?lang=eng>.
[64] There are many successful initiatives like “Canada – Working to End Child Marriage” (www.canadainternational.gc.ca/ci-ci/eyes_abroad-coupdoeil/child_marriage-mariages_enfants.aspx?lang=eng) and “PlanCanada” (plancanada.ca/).
[65] “Child Marriage in North America”, online: Girls Not Brides <www.girlsnotbrides.org/region/north-america/>.
[66] Sonia Puzic, “Child Marriage in Canada “more prevalent” than thought: ex-child bride”, CTV News (22 June 2017), online: <www.ctvnews.ca/canada/forced-marriage-in-canada-more-prevalent-than-thought-ex-child-bride-1.3471441>.
[67] Ibid; Kirsty Duncan, “Canada Must Act to Stop Child Marriages Now” (4 October 2014), Huffington Post The Blog (blog), online: <www.huffingtonpost.ca/kirsty-duncan-/child-marriage_b_4747810.html>.
[68] A certain influx of refugees crossing the US border to Canada (Anna Maria Tremonti, “Does Canada have a looming refugee crisis with influx of illegal border crossings?”, CBCRadio (23 February 2017), online: The Current <www.cbc.ca/radio/thecurrent/the-current-for-february-23-2017-1.3994457/does-canada-have-a-looming-refugee-crisis-with-influx-of-illegal-border-crossings-1.3994459>) does not reach the extent of the European refugee crisis.
[69] Survey by the author among fellow students for associations with the phrase „child marriage“.
[70] Webber, supra note 26 at 277.
