Since 2017, all abroad, closed-end child marriages in Germany are ineffective. This is according to the German Federal court of justice against the basic law. Decide now needs to court, but the Federal Constitution.
It’s going to be a Couple from Syria, the fled, 2015 to Germany. Both partners are married to Syrian law effectively. The husband was at the wedding 21, the girl is only 14 years old.
The Federal court of justice submits to the marriage law of the Federal constitutional court for a decision.
In Germany, it was separated the Pair. The young woman was accommodated in a youth welfare institution for female minors, unaccompanied refugees. The youth welfare office has been appointed guardian. The husband did not know where his wife is staying. He applied to the district court of Aschaffenburg that he will be brought back together with his wife.
No evidence of forced not to see
indications of a forced marriage, the district court saw. It granted to the husband only a right of access on the weekends. In the second instance, the Oberlandesgericht noted Bamberg, then, that the marriage was valid in Germany and must be recognized. Therefore the youth welfare office could not determine where the minor have to stop year old. Against this decision, the youth welfare Department lodged a complaint with the Federal court of justice.
New law for 2017
Meanwhile, the German legislator changed the legal situation. Since July of 2017, the following applies: marriages concluded abroad, legally, in Germany are ineffective, if one of the spouses is under 16 years of age. The Federal court of justice (BGH) must apply the new provision.
He doubted, however, whether the new scheme is compatible with the basic law. “The Federal court complained that the law declares so-called child marriages are automatically null and void without any review in the individual case takes place,” says Dietlind Weinland, press a judge of the Federal court of justice. “This lack of Discretion is what the Federal court thinks is unconstitutional.”
Supreme court sees the basic law, violates
Also, professionals had to urgently warned that the new regulation allows for no exceptions. If the marriage was invalid, would have the affected girls, no claims, for example maintenance and property adjustment. This lack of protection is also one of the main reasons why the Family division of the Federal court of justice believes that the law violates the basic law – such as article 6, of the spouses and their rights arising from the marriage, under the special protection.
“raises An invalid marriage, a whole series of questions,” says the press judge in the wine country. “When children are born, the question is: How does it look with the custody of the children? Or with the handling right? How is it with maintenance claims of the wife? Here is a whole range of family law issues, and which are entirely unsolved.”
judges see the risk of Doppelehen
The Supreme court holds in the legal regulation of 2017 for fundamental violation of the law.
The new rules, criticized the Supreme court, could also lead to Doppelehen, if the husband finding a new wife. In order to protect minors in the best possible way, must therefore be explored in each individual case. This is also the human dignity and the right to free development of personality, will be able to rely on the minors also areas.
All of these aspects must now consider the Federal constitutional court and decide whether the automatic invalidity of child marriage will survive or not.
reference: XII ZB 292/16
