This is a post for conflicts of laws nerds and lovers of legal policy – a lesson in symbolic politics and disregard for private international law expertise. And it takes me back to my days as a student assistant to Professor Schurig at Passau University where I learned the tools of the trade..
Following a referral by the Federal Supreme Court (Bundesgerichtshof), the Federal Constitutional Court (Bundesverfassungsgericht) has overturned the Law to Fight Child Marriages (Gesetz zur Bekämpfung von Kinderehe).
In 2017, in light of minor spouses amongst Syrian and Afghan refugees coming into Germany, the Bundestag had passed a highly symbolic piece of legislation, disregarding the advice of the private international law community. For even before this law was passed, foreign marriages involving minors were only recognised in Germany if they had been properly entered into and were not against the best interests of a minor spouse. Forced marriages were either null and void or could be annulled. With this set of instruments, German law was always able to deal with child marriages appropriately and, above all, according to the circumstances of the individual case.
Nevertheless, and without necessity, the then Grand Coalition passed a rigid Law to Fight Child Marriages in 2017, which amended Article 13 EGBGB and provided for automatic invalidity of the marriage of spouses below the age of 16. It did not contain any regulations on the consequences or continuation options for void foreign marriages under German domestic law.
It is obvious that the annulment solution has many disadvantages especially for the underage wife, whom the legislation purported to protect, such as the loss maintenance and inheritance rights, as well as possibly for children who were suddenly deemed to be illegitimate.
Bettina Heiderhoff put it this way: “In the Child Marriage Act that came into force in 2017, one can see that suppressed fears of foreign ways of life are currently breaking through in part with such force that any rationality on the part of the legislator is lost.”
Dagmar Coester-Waltjen wrote at the time in IPRax: “May this law not be given a long life!” (IPRax 2017, S. 429, 436).
And this fortunately is what happened: The Federal Supreme Court shared the doubts about the constitutionality of the law and submitted it to the Federal Constitutional Court. There, the short life of this law now ends: Parliament has until 30 June 2024 at the latest to “create a regulation that is constitutional in every respect”, as the Federal Constitutional Court puts it. It remains to be hoped that the legislator will act more rationally this time.