Judgment No. CCZ 12/2015 29
Const. Application No. 79/14
to marriage. Marriage was to be for adult persons only and consent to marriage given on behalf
of the intending spouses was prohibited.
The problem with Article 16(1) and (2) of the UDHR was not only that it was a
declaration with no binding force on Member States, it also did not specify what the age of
majority should be. In 1962 the Marriage Convention was expected to resolve the issue of the
standard age of majority for purposes of marriage. The Marriage Convention required States
Parties to take legislative action to specify a minimum age for marriage. It stipulated that no
marriage shall be legally entered into by a person under the minimum age, except where a
competent authority granted a dispensation as to the age, for serious reasons in the interest of
the intending spouses.
According to a non-binding recommendation accompanying the Marriage
Convention, States Parties were directed not to specify a minimum age for marriage less than
15 years. States Parties were permitted to specify a minimum age for marriage by reference to
what they considered to be the age of puberty.
The problem with the Marriage Convention is that it did not specify for States
Parties a minimum age of marriage. It left States Parties free to set their own minimum ages
for marriage. As a result States Parties set minimum ages of marriage as low as sixteen years
for girls whilst setting different and usually higher ages for boys. The other problem was that
the Marriage Convention created exceptions permitting marriages of girls below the minimum
age where government officials approved of the marriages. The effect of these provisions was
that once a girl was married, however young she was, she was treated under domestic law as
an adult. Laws for the protection of children no longer reached her.
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