This post is part of the Digital Islamic Law Lab (DILL) series, in which a Harvard student analyzes a primary source of Islamic law, previously workshopped in the DIL Lab.
Abstract:
After fleeing worn-torn Syria, a married Syrian Sunnī couple, a fourteen-year old woman, A, and twenty-one-year old man, H, arrived in Germany. Because A was a minor, Child Protective Services assumed legal guardianship over A, which H subsequently contested. As a result, A and H were allowed to spend weekends together. Child protective services, however, sought to assume full custody over A, thereby prohibiting any further interaction between A and H. The Higher State Court of Bamberg determined that according to Germany’s Civil Code (BGB) § 1633, stating that a married minor may decide herself where she would like to live and with whom she wants to interact, Child Protective Services may remain the legal guardian of A but cannot control where she lives. In order to reach this conclusion, the Court had to establish whether or not A and H’s wedding was in fact valid. The Court referred both to Syrian civil law and the Ḥanafī madhhab, emphasizing how A and H’s wedding was valid under both. The Court further held there was no need to declare the marriage void under German law, as A and H’s marriage was also permissible in Germany. A and H are now reunited and continue to be married.
Source: Oberlandesgericht [OLG] [Higher Regional Court], May 12, 2016, Az. 7 F. 2013/15.
In August 2015, a married Syrian Sunnī couple, a fourteen-year old woman, A, and twenty-one-year old man, H, arrived in the German town of Aschaffenburg. The couple had fled war-torn Syria, making the treacherous journey from Syria to Turkey and Greece, eventually arriving in Germany by traveling through the Balkans. Soon after their arrival in Germany, German Child Protective Services separated the couple because A was a minor and not accompanied by her parents. Despite the couple’s protests and insistence on their marital status, Child Protective Services placed A in a youth welfare facility for female minors. A family court in Aschaffenburg subsequently granted legal guardianship over the fourteen-year-old to Child Protective Services, which then prohibited any interaction between A and H. H subsequently appealed the family court’s decision, contending that he was the legal spouse of A, as established through a civil marriage in Syria, and thus had the right to live with his wife. The family court, after consultation with A and social workers, ultimately provided visitation rights to H, allowing A to spend the weekends with her husband.[1]
Child Protective Services appealed the decision of the family court before the Oberlandsgericht, the Higher State Court. It contended that as the legal guardian of a minor, it had sole custody over A, meaning it could prohibit A from interacting and living with H. The question before the Court was therefore whether Child Protective Services had the sole right to custody over the married minor, A.[2]
The Court ultimately held that according to Germany’s Civil Code (BGB) § 1633, stating that a married minor may decide herself where she would like to live and with whom she wants to interact;[3] Child Protective Services may remain the legal guardian of A but cannot control where she lives.[4]
Restricting a guardian’s ability to hold custody over a married child is only permissible if the marriage is legally valid. The Court therefore first had to establish that the marriage between A and H was in fact valid. According to Syrian law, a marriage between a minor and an adult is permissible as long as a judge considers the minor to be emotionally and physically mature enough to get married and as long as the minor received permission from a male guardian.[5] Considering that H presented a valid marriage certificate, the Court held that it had no reason to believe that A and H’s marriage was invalid under Syrian civil law.[6]
The Court then turned to German law, BGB, which states that a person may not get married before the age of sixteen. Rather than declaring A and H’s marriage void under German law, the Court cautioned that non-compliance with BGB § 1303 does not automatically void a foreign-made marriage where a spouse is below the age of sixteen. Moreover, the Court stated that declaring A’s marriage with H to be against Germany’s public policy (ordre public) would require the non-application of Syrian law. In this case, the Court surmised, there was no reason to do so, as Syrian and German law reach the same outcome on the matter: they both acknowledge the validity of the marriage between A and H.
The Court referred back to Syrian civil law to analyze whether a marriage between a minor and an adult, which was not sanctioned by a judge and conducted without the permission of the minor’s male guardian, would automatically become voidable. In reviewing the Syrian Civil Code, it held that under the country’s laws a marriage would only become voidable if it were inter-religious, namely between a Muslim and non-Muslim, and if no sexual intercourse had taken place yet. Considering that A and H have already been intimate and that theirs was not an inter-religious marriage, their marriage, even without the adequate approval of a judge or a male guardian, was not voidable unless one spouse chose to annul it.
The Court further substantiated this finding by referring to the jurisprudence of the Ḥanafī madhhab, which Syrian civil law refers to as another source of authority regarding marriage law.[7] Since both A and H are Sunnī, the Court declared, referring to the Ḥanafī madhhab was appropriate.[8] By citing Wikipedia, which is an unusual source for German courts to cite, the Court further stated that according to Ḥanafī jurisprudence, a marriage is only voidable if it occurs between a Muslim and non-Muslim[9]: any other considerations, such as the age of a spouse, may allow a spouse to annul the marriage, but they do not make it voidable per se.
Under German law, the Court continued, a similar finding as to the validity of A and H’s marriage is reached. BGB § 1303 acknowledges the validity of a marriage even if one of the spouses is a minor, and is only voidable if one of the partners seeks to annul it.[10] Moreover, even though sex between an adult and a minor below the age of sixteen is a criminal offence, the Court held that this was a non-issue in this case. A appears to be a willing participant in the marital relationship with H: she made the arduous journey from Syria to Germany with him, and appears to have a strong bond with him. Moreover, the Court continued, A was not forced into a marriage with H. She appears keen to be reunited with H, constantly sneaking out of the youth welfare facility to meet him. As long as A did not want to divorce H, the Court saw no reason to render the marriage void, granting A the ability to live with H according to BGB § 1633.[11]
The Court’s ruling is striking for a number of reasons. First, by referring to Wikipedia, the Court declares that since the Ḥanafī madhhab is the most common source of jurisprudence among Sunnīs, A and H automatically come under its purview. It does not consider at all whether the Mālikī, Shāfi‘ī or Ḥanbalī madhhabs posit any other views regarding marriages involving minors. Second, it is astonishing that a German civil court seeks to interpret Islamic law – without, moreover, any consultation with Muslim jurists. Third, it is difficult to comprehend why the Court was so adamant in insisting that Syrian and Islamic law as well as German law reach the same outcome. Indeed, BGB § 1303 specifically refers to marriages where the minor is above the age of sixteen, whereas A was only fourteen when she got married to H. The Court provides scant reasoning, namely that A wishes to live with H and that after all A is now almost sixteen, to justify the application of BGB § 1633. Finally, it is important to note that the Court’s ruling was heavily criticized as legitimizing foreign-made child marriages. In fact, BGB § 1633, the basis of the Court’s ruling, became void in 2017 when Germany outlawed child marriages, even if the minor is above the age of sixteen. How a court would rule on the issue today is therefore a curious question.
Notes:
[1] Beschl. v. 12.05.2016, Az. 2 UF 58/16, pp. 2-6.
[2] Id. at pp. 4-5.
[3] 14-jaehrige wirksam verheiratet, Legal Tribune Online (June 20, 2019), https://www.lto.de/recht/nachrichten/n/olg-bamberg-2uf5816-jugendamt-aufenthalt-minderjaehrige-heirat-ehe-syrien/.
[4] Beschl. v. 12.05.2016, Az. 2 UF 58/16, p. 5.
[5] Id. at pp. 2-6, 6.
[6] Id.
[7] Id. at p. 7.
[8] Id.
[9] Id.
[10] Id. at p. 8.
[11] Id.