Statement by the Ombudsman for Equality on the memorandum concerning the need for regulations concerning child marriages (TAS 291/2018, issued on 6 September 2018)
The Ministry of Justice has requested that the Ombudsman for Equality provide a statement on the memorandum concerning the need for regulations concerning child marriages.
According to section 4(1) of the Marriage Act (234/1929), a person under 18 years of age is not allowed to marry. Section 4(2) of the Act decrees that the Ministry of Justice may for special reasons grant a person who is under 18 years of age a dispensation to marry. The Act does not specify an age limit for the applicant of the dispensation.
Section 115 of the Marriage Act contains regulations on the recognition of marriages that have been concluded abroad. According to section 115(1), a marriage that has been concluded in a foreign state in a valid manner is, in principle, also valid in Finland. However, according to section 139 of the Act, a marriage can be left unrecognised if recognising its validity would have an outcome contrary to Finnish public policy (ordre public).
In his statement, the Ombudsman for Equality supported the long-term international effort to prevent all child marriages. The Ombudsman for Equality stated that a marriage that is concluded when a person is underage and especially adolescent pregnancies can be harmful for the health of girls and have a negative impact on the higher education opportunities of both girls and boys. Raising the unconditional age limit to 18 years of age is justified also due to the fact that marriage is a legal act that is related not only to family law but also property law, and each party can become fully legally competent in both areas only after they have turned 18 years of age. The UN’s Committee on the Rights of the Child has recommended that the lower age limit for marriages be raised to 18 years of age for both girls and boys regardless of whether their parents have provided their consent for the marriage.
According to the Marriage Act, a person who is under 18 years of age cannot be married without a special permit. In this case, this principal rule in the Act expresses the legal position that can be considered the objective of family law. Marriage includes significant and challenging legal effects, and being responsible for these can be considered to be above the maturity level of a person who is underage. It is for this reason that marriage should be an agreement that is concluded only between two adults.
In Sweden and Denmark, the unconditional lower age limit is 18 years of age. Norway is also preparing a similar type of legislative change. The principles and recommendations expressed in international agreements concerning the rights of children as well as Nordic legislative developments for confirming the age of maturity as the lower age limit should be taken into account.
If the special permit procedure is left in the Act, the unconditional lower age limit should be set at 16 years of age (cf. the age of consent set in the Criminal Code of Finland). The special permit procedure should include consulting the child orally without the presence of any other persons related to the matter (parents, future spouse), so that they can express their own will without possibly being coerced.
On the matter of recognising marriages that have been concluded abroad, the Ombudsman for Equality noted that the policy adopted by Sweden and Denmark is justified. In this case, a child marriage that includes at least one party who is underage when they arrive in Finland should only be recognised if the consequences of not recognising the marriage would lead to unreasonable consequences.
The memorandum did not assess the alternative that is being considered in Sweden of no longer recognising any child marriages under any circumstances. The Ombudsman for Equality noted that Finland should also assess and consider this option. This would entitle all children in Finland, regardless of their nationality or domicile, to the same level of protection.