The Federal Supreme Court of Germany ruled earlier this month that child marriage is constitutional so long as it takes place prior to entering the country.
According to the German publication Die Welt, the court ruled it unconstitutional for Germany to outright ban child marriages that were lawfully conducted abroad.
“In the specific case, it was about a Syrian refugee couple, who had fled in August 2015 over the Balkan route because of the war to Germany,” reports the outlet. “The couple had previously been legally married on 10 February 2015 in a Syrian Sharia court. The husband was 21 years old on his wedding day, his wife was at the age of 14.”
Upon immigrating to Germany from Syria, the couple was separated following registration in the Schweinfurt facility. The 14-year-old girl had been placed in a youth welfare facility for female underage refugees; her appointed guardian was the Aschaffenburg youth welfare office. Her 21-year-old husband had no contact with her and was not even informed of her whereabouts.
The Gatestone Institute reports that a family court in Aschaffenburg ruled against the husband after he filed suit; a Bamberg appeals court later overturned that ruling in 2016. Alarmed by the obvious consequences, the German parliament passed legislation in 2017 banning child marriages after German Interior Ministry revealed in 2016 that “1,475 married children — including 361 children under the age of 14 — were known to be living in Germany as of July 31, 2016.”
“The so-called Law to Fight Child Marriage set the minimum age of consent for marriage in Germany at 18 years and nullified all existing marriages, including those contracted abroad, where a participant was under the age of 16 at the time of the ceremony,” reports Gatestone.
The Federal Supreme Court has now ruled that law unconstitutional, arguing that it violates Germany’s Basic Law. Future child marriages will be examined on a case-by-case basis and will no longer be given a blanket ban. The court stated that the ban on child marriage violates Articles 1 (human dignity), 2 (free development of personality), 3 (equal protection) and 6 (protection of marriage and family) of the Basic Law, which serves as the German constitution.
Winfried Bausback, a Bavarian lawmaker who helped draft the law, denounced the court’s decision as an affront to basic child rights.
“Because of our Constitution and for the benefit of the child, in the present case, there should be only one answer: This marriage must be null and void right from the beginning,” said Bausback. “Germany cannot, on the one hand, be against child marriages internationally, and on the other hand be for such marriages in our own country. The best interests of the child cannot be compromised in this case. … This is about the constitutionally established protection of children and minors!”
Commentator Andreas von Delhaes-Guenther wrote in Bayernkurier that Germany is on the path to accepting foreign law completely contradictory to its own.
“In the end, it is a question of principle to what extent Germany wants to accept foreign law, which is completely contrary to our law on important issues,” said Von Delhaes-Guenther .”We must say that in Germany, German law applies to all, especially in important legal interests such as life, health — or just the welfare of the child, with an immutable age limit for marriages.”
“We should consider one more thing: judgments are made ‘in the name of the people.’ This people has clearly expressed through its representatives in the Bundestag that it no longer wants to recognize child marriage.”