Amendment proposed by Senator Jillian van Turnhout to abolish the possibility of a court ordered exemption to 18 years as the minimum legal age to marry.
22 October 2015
Copy of Amendment proposed below this speech
Speech on 22 October 2015 by Senator Jillian van Turnhout to propose amendment
My amendment seeks to abolish the possibility of a court ordered exemption to 18 years as the minimum legal age to marriage. As I emphasised on Second Stage on Tuesday last, my amendment stems from my concern about the exemption that can and is being granted by the Circuit Court in Ireland to allow children under the age of 18 enter into marriage. The Minister will be familiar with my concerns since they were the subject of a motion tabled by Senator Ivana Bacik and the Labour Party, and which I seconded, in June 2014.
The exemption to the ordinary legal minimum age of 18 years for entry into a contract of marriage is provided through section 31 and 33 of the Family Law Act 1995 and was more recently retained in section 2(2) of the Civil Registration Act 2004.
We know that the exemption is being applied. On the afternoon of our Motion the Minister of State had advised the House that between 2004 and 2013 almost 400 parties to marriages in Ireland were under the age of 19.
More specifically, according to CSO data kindly compiled by the Oireachtas Library and Research service in advance of our debate, 28 marriages registered in Ireland in 2012 involved a bride or groom or both who were under 18 years. In 21 of these marriages the bride was 16 or 17 years of age and the groom was 18 years or over. In 4 the groom was 16 or 17 and the bride was 18 years or over. And in the remaining 3 marriages both the bride and the groom were 17 years of age. Both children entering into the legal contract of marriage.
I find this quite remarkable and entirely undesirable in the context of the State’s duty to protect childhood.
Deciding to marry is a very serious matter, with potentially life-long implications. The obligations and responsibilities that arise from marriage are onerous.
It is ironic and seems inappropriate that we would trust children to make this decision when we prevent underage people from making other decisions. For instance, unless a person is married, he or she must be 18 or over in order to make a valid will.
Notably, you had to be 18 or over to enter into a civil partnership, and there is no provision made for exceptions.
A person under 18 also has limited capacity to contract. A contract with a person under the age of 18 cannot be enforced unless it is for ‘necessaries’ – items that are needed for the child’s basic sustenance (as opposed to luxury items) – or it is a beneficial contract of service. So a child’s capacity to enter into a simple contract or will is limited; yet we would allow a child under the age of 18 to take the equally if not more profound decision to marry.
International research demonstrates that there is a strong correlation between the age of marriage and the chances of divorce. Of course, lots of people marry young and stay together for life; but the odds are against them. One study suggests, for instance, that a person who marries aged 25 is half as likely to divorce as a person who married aged 20.
Ireland is bound by a number of international human rights laws and standards, the provisions of which are completely incompatible with child marriage. For example:
- International Bill of Rights.
- Convention on the Rights of the Child.
- CEDAW (which explicitly prohibits child marriage)
- Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.
More recently in September 2013, Ireland, along with its fellow EU Member States, supported the United Nations Human Rights Council Resolution on Strengthening efforts to prevent and eliminate child, early and forced marriage: challenges, achievements, best practice, and implementation gaps.
Minister, it’s such a glaring contradiction that we in Ireland speak out against child marriage in countries such as India, Nigeria, Malawi, Iraq, Nepal, Ethiopia and Bangladesh, while our statue books still allow for exemptions to the normal marriage age, which worse still fails to specify a minimum age for such an exception.
This is not just a question of child marriage. The exemption also raises concerns around the scope for coercion and forced marriages of children…here in Ireland, which again seems totally baffling when we consider our reaction to the horrific incidents of forced child marriages internationally (for example, Boko Haram).
Applications for exemptions are made to the Circuit Court in private. Senator Bacik made an important point about this in the debate of our Motion. There is no public record of the application or the arguments put forward in support of the application. There are no guidelines on the criteria for granting the exemption. Rather the standard language of section 33 gives the court wide discretion. And, worryingly, there is no provision for minors to be legally represented at the hearing or for the HSE and child protection authorities to be notified.
Our Motion specifically referenced the criticism levied by Justice McMenamin in the High Court in a judgment in June 2013 in a case concerning an “arranged” marriage.
The case concerned the annulment of a marriage between a 16 year old girl and a 29 year old man on the basis that the girl lacked capacity to give true consent in the first instance.
Justice McMenamin felt the case raised concerns of such magnitude that it warranted a general comment about the danger of the legal loophole for children.
He noted that “in certain circumstances such marriage exemptions may give rise to significant child welfare issues” and queried whether the HSE should be put on notice of such applications in order to inquire into the protection and welfare circumstances of the child concerned.
As the legislature we must provide guidance for the courts to implement statutory provisions as they are intended.
Or Minister, we can lead by example and remove the statutory provision currently allowing minors to marry.
When our motion was debated in June 2014 we were told that a small interdepartmental group would be established. I have not heard anything about it since. I appreciate the importance of today and the historic occasion that it is. As we are in the last few months here, I have tabled this amendment because it is an issue that is close to my heart. As I have said, I will not press the amendment but I wanted the issue to be raised and I wanted the Minister’s officials to hear the reasons we must address this gap for children. There is no lower age for this exemption, it is all done in the Circuit Court in private. We must protect children. Without representation, a decision can be made about their lives, a decision that we all take extremely seriously is what makes today so important.
Amendment Proposed
SECTION 7
On page 6, immediately after line 29, insert the following new section:
“Removal of court exemption to impediment on ground of age
(1) In this section “the Act of 1995” means the Family Law Act 1995.
(2) The Act of 1995 is amended by –
(a) the deletion of section 31(1)(b), and
(b) the deletion of section 33.
(3) Section 2 of the Civil Registration Act 2004 is amended by the substitution of the following for paragraph (c) of subsection 2 –
“(c) one or both of the parties to the intended marriage will be under the age of 18 years on the date of solemnisation of the intended marriage,”.
(4) This section shall not apply to a marriage in respect of which, prior to the enactment of this section, a court has made an order under section 33 of the Act of 1995.”