When Culture Overrides the Law: Challenges to Child Marriage Laws around the World

October 11th, is the International Day of the Girl Child. The BJIL Blog is grateful to have esteemed scholar Rangita de Silva de Alwis  contribute a piece to mark the occasion and highlight some of the important work she is doing to further women’s rights throughout the world. Rangita de Silva Alwis is currently Associate Dean for International Programs at the University of Pennsylvania Law School. Recently, her report to UNICEF on Child Marriage and the Law has helped spearhead law-reform initiatives.

Rangita de Silva de Alwis

On International Women’s Day last March, the United Nations announced an initiative to end child marriage by 2030. If nothing is done to accelerate change, UNICEF Executive Director Anthony Lake warned that “women married as children will reach one billion by 2030.” While child marriage is well-documented as a heinous crime against girls, from a development perspective, addressing the causes of child marriage should be more expedient than addressing the consequences of child marriage: vulnerability to violence, maternal mortality, HIV/AIDS, and the feminization of poverty among others. A year after nations have committed to a new development agenda, the Sustainable Development Goals, ending early child marriage must be defined as both a women’s rights issue and a development imperative.

An interlocking reading of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC) call for full and free consent in marriage. The CEDAW Committee in General Recommendation 21 (Article 16.2) states unequivocally that “the minimum age for marriage should be 18 years for both man and woman…marriage should not be permitted before they have attained full maturity and capacity to act.”

Many countries and localities, including several states in the United States have no minimum age of marriage. Saudi Arabia and Yemen too lack a minimum age of marriage.

Laws on the books reveal the legal loopholes that legally permit child marriage. Even in countries that seem to ban child marriage, culturally sanctioned underage marriage, and legal authorization of child marriage by a father or guardians contradict these anti-child marriage laws.  The consent of the guardian or the court to grant permission for child marriage provides a legal loophole that clearly undermines any good faith effort to harmonize national laws with international conventions.

Despite the fact that international norms prohibiting child marriage are indigenized in regional treaties like the 2005 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, which sets out the minimum age of marriage for women as 18 years of age, in several countries, customs and traditions can be interpreted to override the legal age of marriage. Below are several such laws:

Iran’s minimum age of marriage according to Section 1041 of the amended Civil Code is nine lunar years for girls and fifteen lunar years for boys. Further marriage below this age is also permissible by the permission of the Guardian and on condition of taking into consideration the ward’s interest is proper.

In the Ukraine, Article 23 of the Family Code specifies through the “application of a person that has attained 14 years, a court may grant him/her the right to marry if it is found that such a marriage satisfies his/her interests.”

Similarly, under Article 10 of the Family Code of the Republic of Azerbaijan, while the minimum age for men and women is now 18, this was only changed in November 2011. Prior to that time, women could be married as young as 17. However, the minimum marriage age can still be lowered by one year if granted permission by the local executive power.

Pakistan’s law too permits gender inequality in the age of marriage. The Child Marriage Restrain Act of 1929 defines a child as a male under the age of 18 and female as under the age of 16.

In Afghanistan, Article 70-71 of the Civil Code specifies that the legal age of marriage is 18 for males and 16 for females. However, an exception is allowed with the permission of the father or the court for females to marry as young as 15.

Although the Nigerian Child’s Right Act of 2003 prohibits child marriage, the CRC Committee has noted that contradictory laws set the age at 16 years and defines the child not by age but by “puberty.”

Similarly, Chad’s Article 144 of the Civil Code sets the minimum age of marriage as 15 years, while according to article 277 of the Criminal Code, customary law marriages of girls above 13 years are legal.

In Zambia, either party to a marriage, if below age 21, would need the written consent of the father, and at his death or if he is of unsound mind, the consent of the mother. However, the law allows for early marriage under customary law as “nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any African customary law, or in any manner apply to marriages so contracted.”

What is seen here is that traditional practices, patriarchal power, and economic need are some of the push and pull factors that drive families to sacrifice their daughters to early marriage and erode and dilute the laws on the books. An understanding of the underlying reasons for child marriage must complement the actual enforcement of laws. Several countries like Bangladesh have adopted mandatory educational policies which provide financial and in-kind incentives to families to keep their daughters in school and delay marriage. Increasing women’s economic participation also supports the independence of women and helps to delay marriage.  Finally, it takes strong political will to change deep-seated traditions and social mores that undermine the personal security of women and impede social and economic development.  When rights are seen to collide with traditional practices, governments must be on the side of rights.

The historic UN Resolution on Child, Early and Forced Marriage co-sponsored by 116 countries and adopted in 2014, marked the first time that UN member states recognized that child, early and forced marriage violates girls’ human rights and is a cause and a consequence of extreme poverty, gender inequalities, and harmful practices. The Resolution provides a road map to address harmful cultural practices through education. Under the Resolution, countries have agreed to not only enact, enforce, and uphold laws and policies to end the practice of child, early, and forced marriage, but recognize that education is one of the most powerful tools to prevent and end such practices.

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