Why lowering the age of marriage lacks legal logic

Although until 2012 there was a provision in family law that allowed children to marry from the age of 14 under certain circumstances, its return to Ukrainian law would contradict international obligations and the logic of criminal law.

Svitlana Savitska, deputy chairman of the UNBA Committee on family law, commented on the legal aspects of the amendment in the draft of the new Civil Code, registered in parliament on January 22 under No. 14394, which MPs have already promised to remove, on the air of Suspilne.Novyny.

Recall that Article 1479 of the draft Civil Code proposed establishing a minimum age for marriage for women and men. Persons wishing to register a marriage must be at least eighteen years of age on the date of registration. However, upon application by a person who has reached the age of sixteen, a court may grant them the right to marry if it is determined that this is in their best interests. In the event of a woman's pregnancy or the birth of a child, the right to marry is proposed to be granted from the age of fourteen (Article 1478 of the draft). It was this last provision that caused discontent and a flurry of criticism in society, after which one of the co-authors of the draft, Verkhovna Rada Chairman Ruslan Stefanchuk, promised to remove it from the draft during its finalization.

S. Savitska explained that family law previously allowed marriage from the age of 14, but in 2012 the approach was changed and the minimum age was raised to at least 16 by court decision.

The advocate noted that the UNBA Committee on family law had studied the draft Civil Code as part of its public discussion.

In particular, the Committee referred to Presidential Decree No. 722/2019 of September 30, 2019, which supported the global sustainable development goals for 2030, proclaimed by UN General Assembly Resolution No. 70/1 of September 25, 2015. These include ensuring gender equality, empowering all women and girls, including the elimination of all harmful practices, such as child, early, and forced marriages.

In addition, according to the Convention on the Rights of the Child, a child is defined as a person under the age of 18. Therefore, marriage by a person under the age of 18 is considered child marriage and does not comply with international law. Democratic countries are improving their legislation by prohibiting marriage under the age of 18. In the United Kingdom, the Marriage and Civil Partnership Act 2022 was passed, setting the minimum age for marriage at 18 and eliminating the possibility of marriage even at 16.

Separately, S. Savitska emphasized the conflict of laws effect of the norm in combination with criminal law regulation. According to her, a situation where a child becomes pregnant by an adult man constitutes a crime under Article 155 of the Criminal Code (sexual acts with a person under the age of sixteen).

According to the lawyer, the state's response to the problem of early sexual relations and pregnancy among minors should be prevention: through the systematic introduction of sex education and the formation of a responsible attitude towards the consequences of such relations. After all, in situations where minors become parents, the actual burden of support and care still falls on their legal representatives.

The full comments and proposals of the UNBA Committee on Book 7 «Family Law» of the draft new Civil Code can be viewed at this link.