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The minimum age for marriage

Child marriage is repeatedly analysed not only as a harmful traditional practice involving great risks for children’s health and often exposing them to sexual abuse, but also as a significant factor impeding the realisation of the right to education. However, questions should also be raised about the impact of irrelevant or bad quality education on child marriage. The interconnections between the two areas demand a more accurate analysis that takes into account broader issues including: consent; cultural, religious economic and customary factors; the role of parents and families and gender/power dynamics. Furthermore, it is not uncommon for majority to be reached upon marriage, which raises the question of the applicability of the CRC to married children (girls are often singled out in such regulations and risk losing the protection of the Convention before boys). The need for effective protection of children is redoubled in such scenarios.

 

An overview comparative table summarising the findings of this research is available here – for the detailed excerpts these figures are drawn from please consult our country database, under the heading 'National law and policies on minimum ages'. The methodology employed in this research is described in detail here.
 
Marriage is not considered directly in the CRC. One must look to other rights (e.g. health, education, life, development and survival) or the CRC general principles (best interests of the child, non-discrimination, respect for the views of the child) for guidance on this. Nevertheless, it is clear that the Committee places a great deal of importance on ensuring that marriage should not be concluded too early. In fact, in its approach, the monitoring body has consistently recommended that States increase the minimum age for marriage when it is too low and has advocated that it “should be the same for boys and girls and closely reflect the recognition of the status of human beings under 18 years of age as rights holders, in accordance with their evolving capacity, age and maturity”.[i]In its General Comment No. 4 the Committee has also specifically recommended that this minimum age should be set at 18.[ii]In this they are also aided by
the most recent Guidelines for Periodic Reports which require that “[t]he State party should indicate the minimum marriage age for girls and boys”.[iii]
 
In general terms, States do indicate minimum ages for marriage in their reports. However, this is the area where precise or clear information is most lacking: almost half the world's countries - 91 in total - are currently unable to ensure the respect of the best interest of the child or the child’s point of view and consent when it comes to marriage, one of the most important steps in the transition from childhood to adulthood. Looking at the breakdown: 17 countries provide no or unclear information and 74 countries have no minimum age set for marriage. Analysis of those reports with clear responses shows that:
·                     18 is a much more common minimum age for marriage for boys than for girls;
·                     16 for both girls and boys is the most common minimum age for marriage (Figure 5).
 
Given the emphasis on 18 as the age limit for the end of childhood in the CRC and the CRC Committee’s General Comments and Concluding Observations, it is interesting to explore further how this ideal is implemented in reality. From a geographical point of view, one can notice a prevalence of no minimum ages or ages below 18 all around the world. Only a handful States set this age at 18 (again, in disparate regions) and only China stands out for setting it above 18, for both girls and boys (Figure 6). From a more conceptual point of view, one cannot avoid wondering if the discrepancy between ideal and reality has to do with contextual conditions, practices and perceptions of both ‘the child’ and ‘marriage’. In common with notions of child/childhood, conceptions of marriage are constructed and influenced by social, cultural, religious, economic and political factors. Differences pertain to the typology of marriage but also to institutional, societal and interpersonal relationships. Meanings and perceptions of marriage are not homogeneous (either in space or time) and are tightly linked to structural power dynamics and, frequently, inequalities, not only between men and women but also between adults and children.
 
 
 
What this research shows is that more attention to contextual particularities is needed to go beyond prevalent conceptions of child marriage and really understand it from a bottom-up perspective. While there is no denying the need for protection, and while there is no single form of autonomy within and/or outside marriage, the variations in both areas need to be carefully evaluated. Taking protection and autonomy, as well as marriage and context, as complementary allows a more balanced consideration. Understanding the role of education in such a space then becomes essential.
 
Research findings also make clear that in this area there are a large number of variables, with many countries having a plethora of rules but a lack of effective protection. This is especially important for girls. If one looks at Figure 7, it is concerning to note that the number of countries in which the minimum age for marriage is different between girls and boys is almost the same as the number of States where such a difference does not exist. A closer look at the data also shows that sex discrimination is widespread all around the world with 44 countries still specifying a lower age for girls (table 3).
 
 
In addition, data show that many problems arise not from general minimum ages but from exceptions to these, which are frequently very complex and rarely protective. Religious or other norms based on puberty or other such flexible criteria lack the necessary legal clarity to be considered protective. Similarly, parental consent is not protective when it is not regulated to ensure that it is applied in keeping with the principle of the best interests of the child. Dispensation by a competent administrative or judicial authority appears, prima facie, to pass a due process test, and it has here been interpolated that this is in fact based on the best interests of the child. However, when no absolute minimum age is included, even this exception proves insufficient to protect the child and has therefore been interpreted as “no minimum”. Where pregnancy can act as an exception to allow child marriage, it is extremely difficult to discern whether this criterion is protective or non-protective, and indeed it may be both, as the best interests of both mother and child must be considered. Marriage may better protect the interest of the pregnant adolescent, and it would bear analysis whether pregnant girls are permitted to continue their education or not.
 
Adding to this complexity is the fact that civil, religious, customary and traditional laws often exist side-by-side, with no clear hierarchy between them. Moreover, marriages may not be registered, which makes the relevance of law doubtful.
 
While our comparative table does not indicate whether minimum ages are regulated by customary, religious, common or statutory law, or whether the exception refers to pregnancy, court or parental consent or puberty, further explanation is provided in the relevant section of our country database, under the heading 'National law on minimum ages'. In the interests of consistency, interpretation has been given according to the indication of further guarantees. If a lower absolute minimum age was set and if it was explicitly mentioned that the CRC general principles were applied in decision making, then that lower age is recorded. Where no such guarantees are reported, “no minimum” is quoted in the summary table.
 
What emerges clearly is that while exceptions to a general minimum age for marriage may be valid, these should coexist with an absolute minimum age below which marriage is never permitted. The complexity of these experiences demands rigorous analysis of the multiple factors mentioned above, as well as attention to exceptions and their link with both protection and autonomy. In addition, it is important to recognise that quantitative data on the statutory minimum age for marriage reveal only one part of the legal landscape. Human rights standards for education and marriage demand attention to qualitative aspects, too. For instance, the fact that this is the only area under study in which there is widespread legalized gender-discrimination raises important questions concerning the impact that this could have on gender equality in education and power dynamics in specific contexts.
 
The link between the minimum age for completion of compulsory education and the minimum age for marriage
 
Almost all studies, surveys, statistics and research [iv] dealing with child marriage confirm that the practice entails the abandonment or denial of education, especially for girls. This may happen for a variety of reasons, including religious or cultural views, negative perceptions of education or simply economic necessity. Boys, too, may be married at a young age due to societal and cultural pressures and therefore pushed out of the education system in order to cater for their new family. Whatever the reason, the impact is always the same: these children's mental, social and emotional development is halted or impaired and with it their future, too. This is why it is important to understand how cultural and social perceptions of both marriage and education interact with each other and if and how the relationship is mono- or multi-directional.
 
Whether child marriage involves a girl, a boy, or both, if it results in a lack of education, removal from school or limited access to educational opportunities, children’s prospects of securing an adult life in dignity are severely threatened. Even more than that, child marriage often amounts to a denial of opportunities for children to develop their intellectual and social skills and to blossom in their own sense of self and autonomy, which are arguably the principal aims of education. On the other hand, if children are given educational and vocational opportunities, they will tend to delay marriage, postpone and space child-bearing and develop increasingly fuller participation in the life of the local and wider community. Therefore, as for the case of employment, here as well it is important to acknowledge the inherent interconnectedness of the different factors, attitudes, and values which affect the impact that schooling and early marriage have on each other. What needs to be discussed and understood further in this case is the fact that this relationship does not always follow a one way path as the above logic seems to imply.
 
Firstly, gender discrimination in this area has a particularly detrimental impact on the education of girls. If girls can marry at a younger age than boys, and if this age is below the end of compulsory education, they are placed at greater risk than boys. As shown in Table 4, out of 27 countries that report clear ages for the end of compulsory education and marriage (with a difference between girls and boys), only 8 set the former higher than the latter, thus guaranteeing nominally more protection against child marriage. However, questions in this case arise with regard to the concrete enforcement of attendance as actual practices of child marriage may indeed contravene the law on the ground. What signal is the State giving to parents and children if they are supposed to comply with compulsory education until 18 but another law allows marriage at 14 for a girl and 16 for a boy? Those families who cannot afford to maintain their children in school for so long or who do not believe in the value of education would find in child marriage a more immediate solution to economic or societal pressures. This is where child marriage impacts as a pull factor on compulsory education.
 
At the other end of the spectrum, 19 countries set the age for marriage higher than the age for the end of compulsory education. A higher age for marriage in principle could be good, but in reality it could also put children, especially girls, at risk of being married illegally. What are the prospects for a girl who finishes compulsory education at 10 but cannot marry before she is 18? Or, in the same country, for a boy who also finishes at 10 but cannot marry until 20? And, even worse, what happens if education is not compulsory at all or there is no clear age for its completion (as is the case in another 18 countries)? It is in such situations as these that the lack of availability, accessibility and acceptability of education impacts as a push factor into child marriage. This is also where the role of relevant, good quality post-compulsory education is fundamental.
 
 
While there is near-universal consensus on the negative impact of child marriage on education, especially for girls, little has been said about the negative impact of bad education or lack of educational prospects on the choice of getting married before 18 years of age. By looking at the positive, ideal side only (of good quality education as a prevention strategy) one risks neglecting negative educational practices that are currently taking place. Moreover, in the case of girls, many other elements need to be examined, especially in terms of parental attitudes towards their daughters’ education. In families where investing in school for a daughter is still seen as a waste of money and time if the girl will in any case only become a wife and mother, it is not so much education but rather the perceptions and beliefs of gender roles that need to be challenged and changed. Once again, quantitative analysis is important but not sufficient to identify strategies and action for change.
 
Looking at the issue through the 4A framework allows a better and more nuanced understanding: when availability and accessibility of education are supplemented with acceptability and adaptability, the relationship between education and child marriage can be understood and addressed in a more comprehensive manner.
 

[i] CRC Committee, General Comment No. 4: adolescent health and development in the context of the Convention on the rights of the Child, 2003, UN document CRC/GC/2003/4, paragraph 9.
[ii] Idem, paragraph 20.
[iii]CRC Committee, Treaty-specific guidelines regarding the form and content of periodic reports to be submitted by States parties under article 44, paragraph 1 (b), of the Convention on the Rights of the Child, UN document CRC/C/58/Rev.2, 2010, paragraph 22.
[iv] UNICEF, Early Marriage: Child Spouses, Innocenti Digest No. 7 (Florence: Innocenti Research Centre, 2001); Office of the United Nations High Commissioner for Human Rights, Harmful Traditional Practices Affecting the Health of Women and Children, Fact Sheet No.23 (Geneva: OHCHR); S. Mathur, M. Greene, A. Malhotra, Too Young to Wed: The Lives, Rights, and Health of Young Married Girls (Washington: International Center for Research on Women, 2003); International Planned Parenthood Federation, Ending Child Marriage: A Guide for Global Policy Action (London: International Planned Parenthood Federation, 2006); A. Bunting, ‘Stages of Development: Marriage of Girls and Teens as an International Human Rights Issue’, Social and Legal Studies 14(1): 17-38, 2005.