Has Germany just bowed to sharia law and institutionalized child marriage? That is the implication of a ruling by Germany’s highest court, which recently stated that a new law banning child marriage may be unconstitutional.
“The ruling, which effectively opens the door to legalizing Sharia-based child marriages in Germany, is one of a growing number of instances in which German courts are — wittingly or unwittingly — promoting the establishment of a parallel Islamic legal system in the country,” writes respected journalist Soeren Kern in a report for the Gatestone Institute.
Kern’s report details the back story to the ruling:
The case involves a Syrian couple — a 14-year-old Syrian girl married to her 21-year-old cousin — who arrived in Germany at the height of the migrant crisis in August 2015. The Youth Welfare Office (Jugendamt) refused to recognize their marriage and separated the girl from her husband. When the husband filed a lawsuit, a family court in Aschaffenburg ruled in favor of the Youth Welfare Office, which claimed to be the girl’s legal guardian.
In May 2016, an appeals court in Bamberg overturned the decision. The court ruled that the marriage was valid because it was contracted in Syria, where, according to Sharia law, child marriages are allowed. The ruling effectively legalized Sharia child marriages in Germany.
Recognizing the recurring issue of child marriage in Germany due to the influx of immigrants from Muslim countries (where there is oftentimes no age restriction on marriage due to sharia law), the German parliament passed a law in June 2017 setting 18 years old as the minimum age for marriage in Germany. In addition, the law nullified all marriages contracted under the age of 16, even those which were conducted abroad.
Yet, a little more than a year later, on December 14, 2018, German’s highest court, the Federal Court of Justice, ruled that the law maybe unconstitutional in that it violates a number of articles in the Basic Law (the equivalent of German’s constitution) – namely: Article 1 regarding human dignity, Article 2 regarding the free development of personality, Article 3 regarding equal protection and Article 6 regarding protection of marriage and family.
The court then deferred to the Federal Constitutional Court to determine whether the ban on child marriages was legal as well as whether the issue should be decided on a case-by-case basis.
As noted by Kern, “By insisting that the legitimacy of child marriages be examined on a case-by-case basis, the court has opened the door to so-called cultural exceptions, namely those enshrined in Sharia law, which does not set any age limit to marriage.”
Kern also pointed out that the court ruling ignored a basic principle in Germany’s civil law code which states:
“A legal standard of another State shall not be applied where its application results in an outcome which is manifestly incompatible with the essential principles of German law. In particular, it is not applicable if the application is incompatible with fundamental rights.”
This is not the first time Germany has considered (and ruled by) sharia law over German law. Dating back to the year 2000, a number of cases involving marriage, divorce, inheritance and polygamy have been adjudicated according to sharia law by German courts. Other rulings have made exceptions to German law for Muslims.
Kern also reports the widespread problem of child marriage in Germany: “In September 2016, the German Interior Ministry, responding to a Freedom of Information Act request, revealed that 1,475 married children — including 361 children under the age of 14 — were known to be living in Germany as of July 31, 2016.”