Judgment No. CCZ 12/2015 28
Const. Application No. 79/14
on Consent to Marriage, Minimum Age of Marriage and Registration of Marriages 1962 (the
Marriage Convention).
The common feature of the many conventions was the failure to specify for
States Parties the minimum age of marriage as a means of protecting children. They left the
matter exclusively to domestic law. It is striking how poorly international human rights
conventions addressed the practice of child marriage. Apart from their general lack of vision,
the conventions, not being self executing, constituted promises by the adopting parties to enact
domestic legislation and adopt other measures to achieve the desired objectives.
Until 1990, almost all the conventions which contained provisions on marriage
avoided specifying a mandatory minimum age of marriage for the States Parties. While many
conventions provided that marriage must be freely consented to by the bride and groom, there
was no recognition of the special vulnerabilities of children where “consent” could be easily
coerced or unduly influenced by adults. (See Elizabeth Warner: “Behind the Wedding Veil:
Child Marriage as a Form of Trafficking in Girls”. Journal of Gender, Social Policy & the
Law: Vol. 12 Issue 2(2004) Article 1 p. 247.
Under Article 16(1) of the UDHR, the United Nations General Assembly
proclaimed that only men and women of full age, without any limitation due to race, nationality
or religion, have a right to marry and to found a family. The United Nations General Assembly,
by necessary implication, declared that a person who had not attained the age of majority could
not exercise the right to marry and to found a family. Article 16(2) proclaimed that marriage
shall be entered into only with free and full consent of the intending spouses. By necessary
implication, a person below the age of majority was not capable of giving free and full consent
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