Act to Prevent Child Marriages is incompatible with the Basic Law due to the failure to address the legal consequences of the invalidation of child marriages concluded abroad and the lack of possibility for a marriage to be recognised as valid after the age of majority is reached

Press Release No. 36/2023 of 29 March 2023

Order of 1 February 2023
1 BvL 7/18

In principle, the legislator is authorised to make the applicability of domestic law to marriages validly concluded outside of Germany subject to a minimum age at the time of marriage. It may also generally classify marriages as void, if the minimum age at the time of marriage is not met, without a case-by-case assessment. However, it must then enact provisions addressing the consequences of invalidity, such as maintenance claims, and offering the possibility for a marriage concluded under foreign law and deemed invalid to become valid under German law once both partners have reached the age of majority. Because the Act to Prevent Child Marriages (Gesetz zur Bekämpfung von Kinderehen) does not contain such provisions, the First Senate of the Federal Constitutional Court has held in referral proceedings that Art. 13(3) no. 1 of the Introductory Act to the Civil Code is incompatible with the freedom of marriage under Art. 6(1) of the Basic Law (Grundgesetz – GG). The provision remains temporarily in force subject to the conditions specified by the Court relating to maintenance claims. The legislator has until 30 June 2024 to enact legislation that meets all of the constitutional requirements.

Facts of the case:

The present referral proceedings relate to Art. 13(3) no. 1 of the Introductory Act to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche – EGBGB, hereinafter the “Act”), which was added in 2017 by the Act to Prevent Child Marriages. This provision automatically classifies any marriage concluded under a foreign legal system that recognises a minor as being of legal age – subject to the exceptions in the provisional rule under Art. 229 § 44(4) of the Act – as invalid under German law if one or both of the spouses were not yet 16 years of age at the time of the marriage. The main question here is the extent to which constitutional requirements, in particular those arising from the freedom of marriage under Art. 6(1) of the Basic Law, apply to laws on the recognition of marriages concluded abroad in which at least one spouse was underage.

The initial proceedings in the family court concern a marriage concluded in Syria in 2015 before a Shari’a court under local law between a male born in January 1994 and a female born in January 2001, both Syrian nationals. As a result of the war in Syria, they fled together to Germany. Upon their arrival in Germany in August 2015, the competent youth welfare office took the then-14 year old female into care and placed her in a youth shelter for minor female refugees. The process of appointing her a legal guardian was also initiated. The family court confirmed the suspension of parental custody, issued an order for the appointment of a legal guardian and named the youth welfare office as the official guardian.

The husband thereupon applied to the family court to contest the taking of his wife into care by the youth welfare office and request that she be permitted to live with him, citing the validity of the marriage under Syrian law. The Federal Court of Justice, as the court of last instance in the initial proceedings, stayed the proceedings and referred the question to the Federal Constitutional Court of whether Art. 13(3) no. 1 of the Act was compatible with Art. 1, Art. 2(1), Art. 3(1) and Art. 6(1) of the Basic Law, given that it categorically classifies marriages concluded under a foreign legal system that recognises a minor as being of legal age – subject to the exceptions in the provisional rule under Art. 229 § 44(4) of the Act – as invalid under German law if one or both of the parties had not yet reached the age of 16 at the time of the marriage. The Federal Court of Justice considers the statutory invalidation of the marriages affected by Art. 13(3) no. 1 of the Actto be, above all, incompatible with Art. 6(1) of the Basic Law.

Key considerations of the Senate:

Art. 13(3) no. 1 of the Act fails to satisfy all of the applicable constitutional requirements; insofar as the exceptions under Art. 229 § 44(4) of the Act do not apply, it violates the fundamental right of freedom of marriage under Art. 6(1) of the Basic Law. While the legislator is authorised in principle to make the applicability of domestic law to marriages concluded outside of Germany subject to a minimum age, the lack of provisions addressing the consequences of invalidity and the absence of any possibility of the marriages becoming valid under domestic law once both partners have reached the age of majority renders Art. 13(3) no. 1 of the Act in its present form inappropriate and therefore not proportionate in the strict sense.

1. Marriage within the meaning of Art. 6(1) of the Basic Law is in principle a long-term partnership that is based on the free will, equality and autonomy of the partners, with the official ceremony of marriage serving to substantiate the marriage through a formal and recognisable act. The freedom of marriage as a fundamental right applies equally to German citizens and foreign nationals, and also to stateless persons. The scope of protection of Art. 6(1) of the Basic Law is not limited to marriages concluded under German law. Rather, it extends in principle to all marriages, regardless of where or under which legal system they are concluded or whether the legal effect of the marital or familial bond is determined by German law or foreign law.

However, the freedom of marriage is subject to specification in ordinary law: for example, provisions governing the conclusion of marriage and its prerequisites. These provisions must adhere to the essential structural principles that determine the institute of marriage – structural principles that are informed by the pre-existing and established forms of living upon which Art. 6(1) of the Basic Law builds, combined with the freedom characteristic of this fundamental right and other constitutional guarantees. This includes the notion that a marriage protected under Art. 6(1) of the Basic Law (in conjunction with Art. 3(2)) is one in which both spouses are equal partners and are jointly responsible for determining their personal and economic life, and that rules out the exercise of one-sided dominance by one spouse in determining legal arrangements. This structural principle of equal partnership and shared responsibility of spouses does not take away from the freedom of married couples to determine the way in which their shared lives will be shaped. In principle, however, the legislator’s duty to observe constitutional structural principles rules out legislation that would lead to one-sided dominance by one spouse in determining legal arrangements that affect both spouses. In order to guarantee the structural principle of an equal partnership, the legislator can even be required to enact legislation that would bring about such equality.

2. Art. 13(3) no. 1 of the Act, which does affect the scope of protection of the freedom of marriage, is compatible with marriage in the sense of the structural principles of Art. 6(1) of the Basic Law. However, in cases where the exceptions provided for under Art. 229 § 44(4) of the Act do not apply, Art. 13(3) no. 1 of the Act imposes inappropriate limitations on the freedom of marriage, in that it lacks provisions addressing the consequences of invalidity or any possibility for the foreign marriage to become valid under German law once the parties have reached the age of majority. It is therefore not proportionate in the strict sense.

a) The statutory invalidation under German law of a marriage validly concluded under foreign law also extends to foreign marriages that do not conflict with the structural principles of constitutional law and therefore fall within the scope of protection of Art. 6(1) of the Basic Law. Marriage as protected under constitutional law is distinguished by the free will of both partners, with both spouses having equal partnership and shared responsibility in their communal life. This requires that each spouse has the ability to make the decision to enter into such a relationship for themselves. Not only must there be no coercion in the decision to marry, there must also be a sufficient level of development of one’s personality. This can be lacking in minors due to their stage of development, who as a result lack the necessary capacity to enter into marriage. However, it cannot be assumed as a matter of constitutional law that the capacity to marry is – as an element of the constitutional structural principle – in all cases only present after the age of 16. It should be noted that until 1 January 1975, and thus including the period of application of the Basic Law, German civil law permitted young women under the age of 16 to marry in certain circumstances. The constitutional understanding at the time did not automatically exclude the marriage of someone under 16 from the scope of protection of Art. 6(1) of the Basic Law. There is currently no significant constitutional change in this respect.

b) A statutory invalidation of specific marriages validly concluded under foreign law does not violate the constitutional structural principles of marriage within the meaning of Art. 6(1) of the Basic Law. Instead, by preventing marriages concluded before the age of 16 from being legally binding under German law, it is specifically aimed at ensuring that married couples living in Germany are protected by the structural principle of marriage as an equal partnership entered into on one’s own free will and allowing for joint responsibility of the spouses. Children are still in the process of developing into adulthood. From a psychological and social perspective, children do not possess the same level of capability, skill, competence, knowledge or maturity as adults. They most often lack the experience necessary to recognise the risks associated with legal declarations and to be able to assess them realistically. However, these qualities are indispensable in order to make an informed and autonomous decision to enter into marriage with awareness of the associated consequences and to be able to structure the marriage in such a way that there is always the possibility of having an equal partnership.

c) Art. 13(3) no. 1 of the Act interferes with the freedom of marriage guaranteed by Art. 6(1) of the Basic Law in an unconstitutional manner. The legislator is authorised in principle to make the applicability of domestic law to marriages concluded outside of Germany subject to a minimum age at the time of marriage. Furthermore, the legislator is not precluded, from the outset, from classifying a marriage as legally void, without a case-by-case assessment, if the minimum age at the time of marriage is not met. Although § Art. 13(3) no. 1 of the Act was enacted in pursuit of a legitimate goal, and is suitable and necessary to achieve such a goal, it is nevertheless inappropriate in its current form and is therefore not proportionate in the strict sense.

aa) The protection of minors and the establishment of legal clarity are legitimate goals under constitutional law. With the aim of protecting minors, the legislator clearly sought to advance the individual right of children to have the state support and promote their development to become self-reliant persons within society – a right derived from Art. 2(1) of the Basic Law. The legislator’s assumption that the then-existing law did not provide adequate protection for minors with regard to the domestic recognition of marriages concluded outside of Germany rests on a sufficiently sound basis. It is sufficiently established in developmental psychology that children under the age of 16 are generally incapable of assessing the consequences associated with entering into a marriage. This puts their ability to make an informed and autonomous decision in this regard into question.

The protection of minors is also a legitimate goal under constitutional law insofar as the referred provision is intended to contribute to the international prevention of child marriages. This legislative goal is consistent with the international efforts of the United Nations to combat the harmful practices of child marriage, early marriage and forced marriage, which negatively affect the chances of many children, above all girls. According to Art. 16(1) of the Universal Declaration of Human Rights, “marriage shall be entered into only with the free and full consent of the intending spouses”, thus requiring that both spouses have the capacity to marry. The International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Discrimination against Women all contain similar requirements. In light of the decision of the Basic Law in favour of international cooperation as expressed in Art. 24(1), it is constitutionally legitimate to also seek to have the law serve not only the protection of the minors that might be directly affected by Art. 13(3) no. 1 of the Act, but also the worldwide protection of those affected by the practice of child marriage.

bb) Art. 13(3) no. 1 of the Act is suitable and necessary under constitutional law to achieve the goals pursued by the provision. Both the sought-after direct and indirect protection of minors as well as the legal clarity brought about by the domestic invalidity of the marriages subject to the provision can be furthered by the referred provision. The statutory declaration of invalidity under German law can further the purpose of protecting those who are under 16 at the time of marriage from the consequences of such marriage and the associated loss of chances for personal development. In this way, the non-recognition of marriages which, due to the age of the participants, were not entered into with full legal capacity, can restore the freedom of self-determination, in that the marriage validly concluded under foreign law has no legal force in Germany. The provision can also counter the impairment of a minor’s self-determination that occurs at the time of marriage and continues for the duration of marital cohabitation.

Nor is the referred provision inappropriate in the constitutional sense because it does not provide for a case-by-case assessment. It is not discernible that there were any other legal means available to the legislator that are less burdensome and clearly equally as effective in achieving the sought-after legislative goals. In particular, the fact that the invalidity of the marriages affected by Art. 13(3) no. 1 of the Act could also be declared in individual court proceedings does not render the provision unnecessary in a constitutional sense. This would not guarantee either a lower burden or equal effectiveness in achieving the goals of the legislator. It is not certain that a declaration of invalidity in a court proceeding could bring about the same protection of minors as a statute that directly invalidates the marriage in Germany. As only the court decision on the status of the marriage would be decisive in this case, no one could invoke the invalidity of the underage marriage prior to the decision being issued. Until the decision became final and binding, the legal consequences of the underage marriage would continue to unfold. It is exactly these legal consequences that underage spouses, who have a higher need for protection due to their generally underdeveloped capacity for self-determination, need to be protected against. Given the amount of time necessary for a court decision to become final and binding, having a declaration of invalidity made by a court cannot guarantee the same results as a direct statutory invalidation.

cc) Nevertheless, the statutory invalidation in Art. 13(3) no. 1 of the Act of marriages that are otherwise validly concluded under foreign law is not proportionate in the strict sense. The resulting interference in the freedom of marriage under Art. 6(1) of the Basic Law is inappropriate, due to a failure to address the legal consequences of invalidity and the lack of any possibility for a marriage entered into when one of the partners was under 16 to become legal under German law once both partners reach the age of majority.

(1) For those marriages that fall within the constitutional scope of protection, the invalidity of a marriage that is validly concluded under foreign law gives rise to an interference of not inconsiderable weight, as the structural principles of Art. 6(1) of the Basic Law are affected. Those affected by the law who have already lived together outside of Germany as a married couple and who wish to keep their relationship in this legal form have no means of doing so under German law in the current state of affairs under Art. 13(3) no. 1 of the Act. In assessing the weight of the interference, it should also be considered that the partners in those marriages that do fall within the scope of protection of the freedom of marriage have no possibility of having their marriages that were validly concluded under foreign law become valid under German law on the basis of an informed and autonomous decision once both partners have reached the age of majority. This affects the freedom to marry a person of one’s own choosing, which is guaranteed under Art. 6(1) of the Basic Law. This freedom is a cornerstone of the free autonomous existence of human life that is guaranteed by fundamental rights. Thus, the interference at issue here affects central components of the freedom of marriage. In addition, the right to marital cohabitation in a marriage that is validly concluded under foreign law is ruled out entirely. And yet, if a minor wishes to continue the relationship and wants the marriage to become valid on the basis of an informed and autonomous decision, this can be an expression of their autonomous will – which assumes increasing significance as the minor becomes older.

The weight of the interference with the freedom to marry is increased by the fact that the persons affected are in principle denied the legal advantages associated with the status of marriage. In the context of the partners’ relationship with one another, this interference affects all of the rights and duties that pertain to a marital union in property law and non-property law (such as marital cohabitation, maintenance and inheritance law), including all claims that arise after the end of a marriage. Unlike in the case of a divorce or annulment, in the case of a separation due to the invalidity of a marriage pursuant to Art. 13(3) no. 1 of the Act, there are no specific legal claims that would allow a person to obtain compensation for the arrangements made within the framework of ‘married’ life together – arrangements which are usually made in reliance on the legal validity of the marriage. At most, compensation under Paragraph 812 of The German Code does not appear to be entirely excluded. That notwithstanding, there is no specific court proceeding to resolve the financial consequences of a marriage that is invalidated. Moreover, the persons whose marriages are invalidated are denied all further entitlements associated with the status of marriage.

The considerable weight of the interference with the freedom of marriage must be balanced against a significant interest of the common good, namely the protection of minors on a national and international level. As an important interest of the common good, the protection of minors has its constitutional foundation in the right of children to have the state support and promote their development to become self-reliant persons within society – a right derived from Art. 2(1) in conjunction with Art. 6(2) of the Basic Law. This special responsibility of the state to protect children extends to all aspects of a child’s life that are essential for their personality to develop. It is not limited to safeguarding the primary parental responsibility for the development of the child, but also extends to supplemental and supportive duties of the state in areas that are critical to the development of the child’s personality. The urgency of the need to protect minors who are involved in child marriages is expressed in the numerous international agreements that directly or indirectly concern child marriages and their eradication. It is underlined by the fact that eradicating the practice of child marriages worldwide is one of the 17 Sustainable Development Goals (SDGs) that the countries participating in the United Nations Summit on Sustainable Development agreed to achieve by 2030 in September 2015. At the EU level, the resolution of the European Parliament of 4 October 2017 on “Ending Child Marriage” references the considerable negative effect of child marriage on the rights of children, in particular those of girls who are affected by the practice.

(2) The fact that the legislator – in enacting a provision first and foremost for the protection of minors – has not provided for a case-by-case assessment and has not therefore provided for the involvement of the individuals affected does not make the purpose pursued by the statutory invalidity in Art. 13(3) no. 1 of the Act disproportionate to the severity of the interference with the fundamental right in Art. 6(1) of the Basic Law. Even without these two elements, the conflicting interests can be appropriately reconciled. In the pursuit of such objectives, neither constitutional law nor the requirements of international law oblige the legislator to provide for the individual minor’s need for protection to be assessed in a judicial or administrative procedure. The Constitution does not oblige the legislator to design legislation for the protection of minors and the best interests of the child in such a way that the specific interests and the specific need for protection must be reviewed in each individual case. Both the protection of minors and the protection of the best interests of the child are founded on the concept of individuality, in that they are based on the assessment that every child is a being with its own human dignity and its own right to develop its personality within the meaning of Art. 1(1) and Art. 2(1) of the Basic Law. But in practice, this merely means that when reviewing individual measures relating to a specific child – judicial decisions in particular – the best interests of the child may not be determined on a general and abstract basis, but can and must be assessed in relation to the individual child in question. It does not mean that the tools available to the legislator are generally restricted in such a way that would prevent it from enacting provisions with ipso jure effect. The need to protect minors and ensure the best interests of the child permit the legislator to make generalised assessments when evaluating the need for protection in particular constellations and to use these assessments in designing a legal framework that applies to all such cases.

(3) Nevertheless, the referred provision is not proportionate in the strict sense because, despite the considerable interference with the freedom of marriage arising from Art. 6(1) of the Basic Law, the legislator has failed to address the legal consequences of the invalidation of the marriage or provide for any legal way in which a minor could, after reaching the age of majority, seek to have the marriage deemed valid. While the protection of minors who have been affected by child marriage is of great importance, it is nonetheless inappropriate for the legislator not to have provided for any specific provisions addressing the consequences of invalidity, given that Art. 13(3) no. 1 of the Act also affects existing marriages validly concluded under foreign law that fall within the scope of protection of Art. 6(1) of the Basic Law. Among other things, socio-economic considerations relating to the protection of minors lead to the conclusion that a statutory invalidation that lacks provisions for post-marital claims is not proportionate to the sought-after protection. The circumstances and reasons for entering into such a marriage often indicate that the younger spouse is economically dependent on the older spouse. The most commonly cited factors that have an impact on the age at which people enter into marriage are where the person lives, their educational level and the economic status of their family. The economic reasons that lead a minor to enter into marriage in their home country may lose significance once they resettle in Germany. However, it is not evident that these reasons typically cease to apply altogether and that minors are no longer in need of protection in socio-economic terms. Even when post-marital claims may not have any value due to the adverse economic situation of both spouses, the failure to provide for such claims in the case of the invalidation of a marriage poses an inappropriate burden on the very minors who are to be protected, especially since there are no other specific provisions addressing the legal consequences. As a result, those whose marriage is affected by Art. 13(3) no. 1 of the Act because they were under 16 at the time of marriage are in a worse legal position than those who were 16 or 17 at the time of marriage and who can make post-marital claims.

Art. 13(3) no. 1 of the Act also amounts to inappropriate interference in the freedom of marriage in that it lacks a provision that would permit a person who entered into a marriage as a minor to have the marriage deemed valid in Germany on the basis of a decision made on their own free will after reaching the age of majority. The only available option of re-marrying the same partner in Germany does not strike an appropriate balance between the legislative goal of the protection of minors on the one hand, and the severity of the interference with Art. 6(1) of the Basic Law on the other. The referred provision’s intended purpose of protecting minors no longer applies once the spouse who was under 16 at the time of marriage reaches the age of majority.

3. The referred provision’s violation of Art. 6(1) of the Basic Law does not result in it being declared void ab initio. Unlike a declaration of incompatibility, a declaration of voidness cannot be combined with an order of continued applicability. As such, it would lead to a situation where the legal relationships are left unclarified and thus further from a constitutional state of affairs than if Art. 13(3) no. 1 of the Act continues to apply temporarily despite its incompatibility. In addition to the order of continued application, a transitional provision is required, which is limited to avoiding the circumstances that lead to the unconstitutionality or, at a minimum, to mitigating their effects in order to counteract a state of affairs that would be more unconstitutional than if the unconstitutional provision were void and inapplicable. In light of the foregoing, temporary provisions regarding the question of maintenance for those marriages deemed invalid in Germany are needed. In order to comply with this, § 1318 of the Civil Code should be applied, subject to the condition that the provisions on divorce that are made applicable by this provision shall apply whenever the separation of the spouses is not merely temporary. Insofar as the relevant provisions use the duration of the marriage as a decisive criterion, the applicable period in cases where the spouses affected by Art. 13(3) no. 1 of Act are separated on a not merely temporary basis is the duration of the cohabitation. During the duration of cohabitation, §§ 1360 and 1360a of the Civil Code apply accordingly on a provisional basis to claims for maintenance by the affected persons.