Raising the legal age – helping the fight to end global underage marriage

Plans which have been long in the making to raise the minimum legal age of marriage in the UK to 18 have made further progress in recent weeks. On 19th November 2021, the Marriage and Civil Partnership (Minimum Age) Bill went through the House of Commons and passed its second reading and is now sitting in the committee stage.

In a drive to prevent underage marriage, and safeguard children, the bill plans to introduce serious penalties for adults facilitating underage marriages. The crackdown will also come heavily on arranged marriages, making it much easier to prosecute the adults involved.

The bill itself has received cross-party backing. Tory MP Pauline Latham introduced the Bill to the government, stating that children aged 16 and 17, who are currently allowed to marry with parental consent, are too young to make those decisions. The Private Members bill is seeking to put a stop to the deeply anachronistic status of these teens who, whilst still legally children, are allowed to marry.

Child marriage is defined as any marriage or informal union where one or both parties is under the age of 18. Forced marriages are those unions where at least one of the parties has not expressed explicitly their full and free consent.

The law currently in place is undeniably outdated and unsustainable. The Marriage Act 1949 means that legally, children can get married with the consent of their parent or guardian. In 1929, in a response to a campaign by the National Union of Societies for Equal Citizenship, the government raised the minimum age to 16 in the Ages of Marriage Act. Thus, anyone over this age, although technically still a child, could marry.

At the time, these pieces of legislation would have been distinctly progressive, and were intended to be a strong move towards safeguarding children.

However, when speaking in the debate of the bill to raise the legal age to 18, Robert Buckland, the former Lord Chancellor and Secretary of State said that whilst parental consent was originally intended to be a safeguard for children, it “has sadly become a vehicle for abuse” and that it was “no secret” he supported the bill, which should enforce prevention of misuse of parental consent.

What the Marriage Act of 1949 does, in reality, is legitimise child marriages, hidden behind the curtain of parental consent. There is legislation in place under which forced marriage is a criminal act. This is relevant when the child, or adult, does not consent to the marriage. However, to be considered illegal, there must be evidence of coercion and, notably, this fails to consider the parent-child relationship where, in most cases, there is a significant power imbalance. In these scenarios, children are often unduly pressured and cannot voice their unwillingness or even to understand that they have the right to do so.

A marriage can legally go ahead if the 16- or 17-year-old does not actively object to it and their parent consents.

This outdated notion of parental consent can very easily become a mechanism for parents to exert their authority in an abusive way.

Furthermore, campaigners fighting for the end of child marriage have emphasised the harsh reality that educational opportunities, employment prospects and independence are all but destroyed for many young people who are married at 16. Domestic abuse in these marriages, as well as early pregnancy, in many cases, will lead to the individual suffering mental and physical health problems. Organisations that work with victims of child marriages report that the young person will experience life-long harm.

Laws currently in place against forced or child marriages only apply to those ceremonies which are registered. There is, as it stands, no legal protection against religious ceremonies which are unregistered, for any age limit, unless they are forced, which, as we have seen, requires proof of duress.

Statistics have shown recently that 125 legal marriages of children under 18 were registered in 2019, it is impossible to know how many unregistered, religious, underage marriages are entered into. Estimates are, sadly, much higher than 125. In 2020, around 26% of victims of forced marriage were under 18, according to statistics from the Forced Marriage Unit (FMU).

Thus, steps are being taken with the Marriage and Civil Partnership (Minimum Age) Bill to amend the legislation relating to unregistered marriages. In addition, the amendments will also make it a criminal offence for any person to facilitate the marriage of a child, i.e., anyone under the age of 18, and will criminalise the failure of a responsible person to protect the child from any kind of marriage. Offenders will be given up to seven years in prison.

The law itself will only apply in England and Wales. Nevertheless, it aims to deter parents or guardians from taking their child abroad to be married. This is by making it an offence to facilitate a child marriage abroad as it will be treated as though it had been performed in England and Wales.

Family courts, as a result of planned amendments to the Family Law Act 1996, will be given the ability to make child marriage protection orders, which are similar to forced marriage protection orders (FMPO). As an injunction which will prevent perpetration of underage marriage, this will aim to safeguard children.

Back in 2016, a joint initiative was launched in order to tackle the global issue of child marriage, joined by UNICEF and the UN population fund. At present, the UK provides funding and support for the programme and, on the 16th November 2021, just before the Marriage and Civil Partnerships (Minimum Age) Bill went for its second reading, the Foreign Secretary announced a further £18 million of new funding.

As underage marriage is known to be a global problem, the new bill will help the UK to live up to its ‘international obligations’ as Pauline Latham has argued. There have been those who have pointed out the double standards under current laws. Whilst the UK is asking other countries to stop underage marriage, the current laws in this country still allow for 16- and 17-year-olds to be victims of child marriage.

The UK government is now committed itself to achieving the UN’s sustainable development goals by 2030. As part of this, the government will be planning ways to ‘eliminate all harmful practices, such as child, early and forced marriage’.

Until it is no longer legal for a child to be lawfully married in England and Wales, which the bill is striving to achieve, it is difficult for the government to champion the elimination of such practices. The devolved governments of Scotland and Northern Ireland will be making individual decisions as to introducing similar legislation. It is hoped, however, that revising the law will give the UK the leg to stand on to fight for a global end to underage marriage. 

Nicky Hunter is a Partner at Stowe Family Law. Nicky has extensive experience in all aspects of family law, with a particular focus on assisting clients, both married and unmarried, to resolve the issues that arise on separation and divorce in relation to their financial arrangements and living arrangements for children.

Photo via PxHere.