This section explores the role that laws can play within a broader holistic response to child marriage. It includes information on the minimum age of marriage, and the importance of including gender perspectives in child protection laws and youth perspectives in gender-based violence laws. You can also explore the complexities surrounding the criminalisation of child marriage.
The basics of legal responses to child marriage
Child marriage is any marriage or informal union where at least one of the parties is under 18 years old. Forced marriages are marriages in which one or both parties have not personally expressed their full and free consent to the union.[1] A child marriage is considered to be a form of forced marriage if one or both parties have not expressed full, free and informed consent.
The most widely accepted definition for a child is anyone under the age of 18, in line with the United Nations Convention on the Rights of the Child [2].
It is important for any country to have a minimum age of marriage as this legally protects children from abuse, harm, violence and exploitation. Laws to address child marriage should be part of a comprehensive legal and policy framework which addresses its root causes, including gender inequality. This framework should include issues such as:
- Marriage and divorce (including registration and solemnisation of marriages, alimony and custody of children).
- Harmful practices such as dowry, bride price, polygamy and female genital mutilation/cutting.
- Property and inheritance.
- Sexual and gender-based violence (including identification of girls at risk in schools and other community spaces and marital rape).
- Child labour and abuse.
- Trafficking, including sex trafficking and international marriage brokering.
- Access to education, healthcare and social securities.
- Mandatory birth and marriage registration (including registration of all marriages, including civil, religious and customary unions as a means to track marriages and age of marriage) [3].
Child marriage laws in different countries
Countries take different legal approaches to child marriage. Some make child marriage a crime, some ban or invalidate marriage below the legal minimum age and others merely prescribe a minimum age of marriage without expressly criminalising or banning it. In many countries, there may not be a single child marriage law, but it is instead regulated through other legislation such as civil law, criminal law and family law. There are also customary and religious laws which vary from country to country. These are often specific to a location at the sub-national level, and open to interpretation by individual chiefs and community or traditional tribunals.
In many countries there are legal provisions which allow exceptions to the minimum age of marriage. These loopholes can undermine the efficacy of legal protections for girls against child marriage. Examples include marriage upon parental consent or authorisation of the court, or where customary or religious laws that set lower minimum ages of marriage take precedence over national law.
To find out more about national legislative responses to end child marriage, check out our child marriage Atlas and look up your country’s profile to find out what the minimum age of marriage is in your country.
Working with local and traditional or religious leaders can be an effective strategy for ensuring customary and religious laws do not permit child marriage. For more information on working with religious leaders, check out our brief.
Child marriage and criminalisation
Laws alone are not enough to end child marriage. Too often governments use laws to respond to social issues without also putting in place the policies and programmes needed to support social change and address the drivers of the practice. Any implementation of child marriage laws should be based in consultation with civil society organisations – including the participation of youth and adolescents – put girls’ rights at the centre, and complement and support community-based efforts to change social and gender norms which drive child marriage.
Criminalisation is the act of turning an activity into a criminal offence by making it illegal. In the context of child marriage, criminalisation involves classifying the action as a criminal offence and attaching persecution and sanctions (such as jail or a fine). In many contexts, the law is used to punish as opposed to seeking justice and redressal. This can mean more emphasis is placed on stopping a marriage from happening, rather than protecting girls who choose not to marry or who have been married. When advocating for legal change, it is important to know that a punitive approach such as criminalising child marriage can lead to unintended negative consequences for girls, boys and their families.
In countries where criminalisation exists, there are a range of people who may be held accountable or criminally punished for child marriage. For example, parents or guardians for forcing underage girls and boys into marriage; adults who receive a dowry for the marriage of children; officials and religious leaders who solemnise child marriages; administrators who register or certify child marriages; wealthy individuals who sponsor weddings of children (some leaders fund mass weddings to gain popular support – some of the spouses may be children); and medical professionals, government employees or civil servants who are involved or complicit in carrying out child marriages.
The severity of the punishment for child marriage where it is criminalised can depend on a number of factors such as whether the marriage was forced, and how young the child is. Punishment also depends on how a state classifies the crime of child marriage – for example as a felony, a misdemeanour or infraction. The penalty doesn’t always mean a prison sentence, it could be a warning, community service or a fine, for example. Criminal law distinguishes between intent and motive.
Criminalisation can have a number of negative impacts. Girls themselves can be punished for not reporting the assaults they are victims of. They may face social stigma, retaliation and mental distress associated with putting family members in prison, and families and communities can be destabilised in cases where everyone that attended a wedding is imprisoned. There can be negative social impacts on families and children of the dissolution of child marriages, including stigma and ostracism. Other impacts include economic stresses on families and the complexities of reclaiming dowry payments and returning the bride price; girls’ separation from children and custody issues; and criminalisation of consensual sexual relations (and elopement) between adolescents and imprisonment of consenting adolescent boys and girls [4].
The legal prohibition of child marriage may drive the practice underground and beyond the reach of the law. In some countries, the intense focus on anti-child marriage laws diverts attention away from complementary and holistic approaches to engage families and communities, and support for health, sexuality, education and support services for girls. This holistic approach to ending child marriage is supported in the Human Rights Council resolution on child, early and forced marriage in 2019.
Sources
[1] As defined by the United Nations Office of the High Commissioner for Human Rights, 2020. Accessed 18 January 2021 from: https://www.ohchr.org/EN/Issues/Women/WRGS/Pages/ChildMarriage.aspx
[2] The United Nations Convention on the Rights of the Child (UNCRC) defines a child as everyone under 18 unless, "under the law applicable to the child, majority is attained earlier."
[3] From UNFPA-UNICEF Global Programme to End Child Marriage, 2020. ‘Child Marriage and the Law: Technical Note for the Global Programme to End Child Marriage’.
[4] Ibid.