Marriage Bill 2015 Amendment re Marriage Age at 18, 21 October 2015

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.”

Protecting Childhood: Motion on the Marriage Age

Wednesday, 25th June 2014

“That Seanad Éireann:

– notes the need to ensure adequate protection of children and of children’s rights in our laws, and in particular to ensure that children are not coerced or forced into ‘arranged’ marriages;
– notes that sections 31 and 33 of the Family Law Act 1995 allow exemptions from the normal rule that parties to a legal marriage must be over 18; and that the possibility of seeking this exemption by way of court order was retained in section 2(2) of the Civil Registration Act 2004;
– notes further that this exemption was criticised by the High Court in a judgment in June 2013 in a case concerning an ‘arranged’ marriage; and
– proposes that the Government would consider whether to remove or amend the statutory provision allowing minors to marry on the basis of a court exemption.”

Senator Jillian van Turnhout:

I welcome the Minister of State to the House. I would like to thank Senator Bacik, who like me has worked on this issue, for initiating the motion before us. I am very happy to second the motion and thank her for her co-operation.

I raised this issue back in May during the Seanad debate on the abducted schoolgirls in Nigeria that Boko Haram had threatened to sell into forced marriage. Like many people, I felt helpless looking on at the situation and it made me wonder if there was anything we could do. For me, this is one area that we can do something about. We can send the clear message that the age for marriage is 18. That is something that we must take responsibility for doing. During the debate I made the worrying correlation between Nigeria and Ireland because, in certain court ordered special circumstances, exemptions to the ordinary legal age for marriage of 18 years can be made. That means Ireland does not currently prohibit all child marriages.

It is important to note that Ireland is bound by a number of international human rights laws and standards, the provisions of which are profoundly incompatible with child marriage, for example, the International Bill of Human Rights, the UN Convention on the Rights of the Child, CEDAW, the Supplementary Convention on the Abolition of Slavery, the slave trade, and institutions and practices similar to slavery.

In September 2013, Ireland, with its fellow EU member states, supported the United Nations Human Rights Council resolution, Strengthening Efforts to Prevent and Eliminate Child, Early and Forced Marriage: challenges, achievements, best practice, and implementation gaps. The European Union as a negotiating block at the international fora condemns the prevalence of child marriages yet makes provision for it in a number of its own jurisdictions, for example, in Germany and Italy. In Germany, if one of the parties to be wed is at least 16 years old, but not yet 18 years old, the German age of emancipation, that party needs to seek approval from the family court in order to be wed. Consent of the concerned party’s parents is not sufficient. In Italy, a sworn statement of consent to the marriage is required by the parents or legal guardian if the child is under the age of 18.

Exploitation of young girls through violence and abuse, including forced and arranged marriages, is a global problem. According to Girls not Brides, every year, approximately 14 million girls are married before they turn 18 across countries, cultures and religions. They are robbed of their childhood and denied their rights to health, education and security. According to UNFPA, by 2030, the number of child brides marrying each year will have grown from 14.2 million in 2010 to 15.1 million, a 14% rise if the current trend continue.

In March 2014, the Iraqi Justice Minister tabled a Bill to allow girls as young as nine years old to marry. While reports have indicated that it is unlikely that the law will pass, it represents a worrying trend toward religious tendencies usurping girls’ human rights. In response to the Bill, prominent Iraqi human rights activist Hana Adwar said: “The law represents a crime against humanity and childhood. Married underage girls are subjected to physical and psychological suffering.” This contention is known to be true. The more than 60 million girls married under the age of 18 worldwide have a higher risk of death and injury during childbirth, fewer marketable skills, lower lifetime income, a higher rate of HIV, exposure to domestic violence, and illness for themselves and their families than their unwed peers.

It is inappropriate and, frankly, contradictory that we in Ireland speak out against child marriage in countries such as India, Nigeria, Malawi, Iraq, Nepal, Ethiopia and Bangladesh while our Statute Book still allows for exemptions to the normal marriage age, and fails to specify a minimum age for such exemptions. As outlined by Senator Ivana Bacik in 2012, some 28 marriages were registered under the exemption. As stated by the Senator, the exemption threshold is very broad and it uses standard language giving the court wide discretion. This means that decisions pertaining to allowing children to marry are made behind closed doors, often subject to the in camera rule since the parties to the application are children. Yet, from the moment they are married, they become adults and are outside all the child protection laws. We never hear about those decisions and those vulnerable children. In this regard, the Family Law Reporting Project has come across many of these cases, and may be able to shine a light on the prevalence and general circumstances in which they occur.

There is no written judgment in the High Court case referenced in this motion. The case concerns the annulment of a 16 year old girl’s marriage to a 29 year old man on the basis of the girl’s lack of capacity to give true consent. How can a 16 year old girl give consent to a marriage to a 29 year old man? I am not speaking of a case in Iraq but in Ireland. This happened in Ireland. However, Mr. Justice MacMenamin felt the case raised concerns of such a magnitude that it warranted his making a general comment about the danger of the legal loophole to children. We are faced with a choice. As the Legislature, we must provide guidance for the courts to implement the statutory provisions as intended or, and this would be my preference, we can lead by example and remove or amend the statutory provision currently allowing minors to marry. I believe Ireland should send a clear signal to children here that we protect childhood and that the age for marriage is 18 years. We have had excellent debates here on protecting childhood. We are talking about consent, the age for which should be set at 18 years. That would mean that Ireland, as part of the European Union as a negotiating block, is not saying that it can understand cultural differences and our courts can adjudicate, but we do not trust the courts in other countries. We need to send out a message that we are setting the age at 18 years without exemption.

Link to full debate here.

The Lancet

In July 2021, Jillian co-authored an article in the world-renowned medical journal “The Lancet”