Early marriage: any need for action?

This article questions whether Scotland should follow England & Wales’s Marriage and Civil Partnership (Minimum Age) Act 2022 and raise the minimum age of marriage and civil partnership to 18. I follow Dempsey (Journal, July 2021, 5) and Norrie (“Equality and Capacity in Sex and Marriage”, Royal Society of Edinburgh Workshop on the Age of Marriage and Civil Partnership, Edinburgh Napier University, 5 May 2023) in preferring “early marriage” to “child marriage”, as the latter phrase infantilises young adults: 16 and 17 year olds in Scotland are not children.

Policy reasons for the 2022 Act include “to protect children from the scourge of forced marriage”, and “to address the practice of child marriage in England & Wales”, recognising the varied associated disadvantages, including interrupted education and poor outcomes for young women globally. Early marriage is undesirable in its own right, in addition to being a vehicle for forced marriage.

Early marriage globally

Child marriage, defined by UNICEF as “any formal marriage or informal union between a child under the age of 18 and an adult or another child”, is recognised as a major contributor to the inequality of women worldwide: early marriage impacts six times more girls than boys. Consequences for women include increased domestic violence; curtailed education; and inferior health and economic outcomes, which are transmitted to their children, impacting on a country’s health system.

The vast majority of early marriages worldwide take place in South Asia, Sub-Saharan Africa, and East Asia and the Pacific (UNICEF data). In Scotland, National Records of Scotland statistics show a 2011-15 average of 197 and 60 for young women and men aged 16-19, and for 2016-20, 91 and 35 respectively, including same-sex marriages. More granular information shows that from 2016-21 (excluding pandemic year 2020), there were an average of 17 marriages where one party was over 18 and the other 16-17, and 2.8 marriages where both parties were under 18. 2021 saw two marriages where both were under 18, and 14 where one party was, the other (male) party being aged 19-20 in eight cases, and 20-29 in six (National Records of Scotland freedom of information answer). By contrast, from 2005-21, there were three same-sex civil partnerships where one party was under 18. Information about same-sex marriages by age is not currently available. Clearly, early marriage disproportionately involves young women in different-sex relationships.

Though maybe not a major contributor to the global phenomenon of forced marriage, Scotland is now an outlier in the developed world, in that marriage (and civil partnership) remains possible from 16 (Marriage (Scotland) Act 1977, s 1), without parental consent.

Scots case law suggests that forced marriage is found in families whose ethnic origins are South Asian. Most cases concern the forced marriage of women, with the exception of Mahmud v Mahmud 1994 SLT 599. Forced marriage seems therefore to be a phenomenon attached to particular communities, and different-sex marriage specifically.

Issues to address

A number of issues need addressed if the Scottish Government is considering raising the age of marriage and civil partnership. First, Scotland’s 16 and 17 year olds are not children in law, unlike those in England & Wales. I suggest that restricting the right to marry would be more significant in Scotland for this reason – even though the restriction is temporary (Norrie, supra). Secondly, though global outcomes for those who marry early are poor, and this may be the case in the UK for young people from communities with particular cultural understandings of different-sex marriage, this may not be true for all young people: we need to understand more about these relationships. 

Thirdly, if marriage and civil partnership were made impossible, cohabitation would still be an option for 16 and 17 year olds: would this also be an evil? Fourthly, there is no evidence to suggest that early same-sex marriage and civil partnership carry the same undesirable circumstances and consequences. To raise the age of marriage and civil partnership would seem to be a particular injustice for this community (Norrie, supra). Finally, though raising the age of marriage might prevent some undesirable and/or forced marriages, there may be other ways of doing this – by education and support – that would not impact other voluntary and more beneficial early marriages.

Taking autonomy seriously

In sum, forced marriage is a global evil that disproportionately affects young women in different-sex marriages, and it should be eradicated. Forced marriages do occur in Scotland, as does early marriage and civil partnership – though these phenomena are not identical, and it is not clear how harmful early marriage or civil partnership is in Scotland: it may sometimes be neutral or beneficial. Research is needed to establish this. If we take our young people’s autonomy seriously – and we should, for 16 and 17 year olds in Scotland are not children – we ought to be wary of infringing their rights, even temporarily. This may be particularly important for young people in same-sex relationships, for whom there is no culture of forced marriage or civil partnership, but who may need to escape unsupportive families. Forced different-sex marriage, and the disadvantages attached to early marriage, seem to be the consequences of patriarchal cultures that do not value women, and these should be our primary target.