The Federal Court of Justice (Bundesgerichtshof), Germany’s highest court, has ruled that a new law that bans child marriage is unconstitutional because all marriages, including Sharia-based child marriages, are protected by Germany’s Basic Law. Pictured: The Bundesgerichtshof building in Karlsruhe, Germany. (Image source: Andreas Praefcke/Wikimedia Commons)
The Federal Court of Justice (Bundesgerichtshof, BGH), Germany’s highest court of civil and criminal jurisdiction, has ruled that a new law that bans child marriage is unconstitutional because all marriages, including Sharia-based child marriages, are protected by Germany’s Basic Law (Grundgesetz).
The ruling, which effectively opens the door to legalizing Sharia-based child marriages in Germany, is one of a growing number of instances in which German courts are — wittingly or unwittingly — promoting the establishment of a parallel Islamic legal system in the country.
The case involves a Syrian couple — a 14-year-old Syrian girl married to her 21-year-old cousin — who arrived in Germany at the height of the migrant crisis in August 2015. The Youth Welfare Office (Jugendamt) refused to recognize their marriage and separated the girl from her husband. When the husband filed a lawsuit, a family court in Aschaffenburg ruled in favor of the Youth Welfare Office, which claimed to be the girl’s legal guardian.
In May 2016, an appeals court in Bamberg overturned the decision. The court ruled that the marriage was valid because it was contracted in Syria, where, according to Sharia law, child marriages are allowed. The ruling effectively legalized Sharia child marriages in Germany.
The ruling — described as a “crash course in Syrian Islamic marriage law” — ignited a firestorm of criticism. Some accused the Bamberg court of applying Sharia law over German law to legalize a practice banned in Germany.
“Religious or cultural justifications obscure the simple fact that older, perverse men are abusing young girls,” said Rainer Wendt, head of the German police union.
Monika Michell of Terre des Femmes, a women’s rights group that campaigns against child marriage, added: “A husband cannot be the legal guardian of a child bride because he is involved in a sexual relationship with her — a very obvious conflict of interest.”
The Justice Minister of Hesse, Eva Kühne-Hörmann, asked: “If underage persons — quite rightly — are not allowed to buy a beer, why should the lawmakers allow children to make such profound decisions related to marriage?”
Others said the ruling would open the floodgates of cultural conflict in Germany, as Muslims would view it as a precedent to push for the legalization of other Islamic practices, including polygamy, in the country.
In September 2016, the German Interior Ministry, responding to a Freedom of Information Act request, revealed that 1,475 married children — including 361 children under the age of 14 — were known to be living in Germany as of July 31, 2016.
In a bid to protect girls who were married abroad but sought asylum in Germany, the German parliament on June 1, 2017 had passed legislation banning child marriages. The so-called Law to Fight Child Marriage (Gesetz zur Bekämpfung von Kinderehen) set the minimum age of consent for marriage in Germany at 18 years and nullified all existing marriages, including those contracted abroad, where a participant was under the age of 16 at the time of the ceremony.
Germany’s Federal Court of Justice, in its ruling, published on December 14, 2018, stated that the new law was unconstitutional because it violated Articles 1 (human dignity), 2 (free development of personality), 3 (equal protection) and 6 (protection of marriage and family) of the Basic Law, which serves as the German constitution.
The court also ruled that the new law cannot be applied retroactively, and therefore cannot apply to the Syrian couple, who were married in February 2015.