Headnotes

to the Order of the First Senate of 1 February 2023

- 1 BvL 7/18 - Child marriages

1. Marriage within the meaning of Art. 6(1) of the Basic Law is a legally binding partnership that is in principle formed for the long term; it is based on the free will, equality and autonomy of the partners and involves special mutual obligations, with the official ceremony of marriage serving to substantiate the marriage through a formal and recognisable act.

1. Marriage-like partnerships concluded outside of Germany do not, as a rule, fall within the scope of protection of Art. 6(1) of the Basic Law if they contravene the structural principles of constitutional law.

2. The freedom of marriage requires and allows for ordinary law provisions that legally define and delimit marriage as a constitutionally protected partnership.

2. Such provisions must be compatible with the structural principles that determine the institution of marriage and satisfy the requirements of proportionality.

3. The legislator may provide for impediments to marriage in order to guarantee the essential structural principles that determine the institution of marriage under constitutional law. These may include requirements regarding the capacity to marry in order to ensure that the marriage is based on the autonomous decision of both spouses, such as minimum age limits.

FEDERAL CONSTITUTIONAL COURT

- 1 BvL 7/18 -

IN THE NAME OF THE PEOPLE

In the proceedings
for constitutional review of

the Federal Constitutional Court ‒ First Senate ‒

with the participation of Justices

President Harbarth,

Baer,

Britz,

Ott,

Christ,

Radtke,

Härtel

held on 1 February 2023:

1. Art. 13(3) no. 1 of the Introductory Act to the Civil Code in the version of the Act to Prevent Child Marriages of 17 July 2017 (Federal Law Gazette I p. 2429) is incompatible with Art. 6(1) of the Basic Law – apart from the exceptions set out in the transitional rule under Art. 229 § 44(4) of the Introductory Act to the Civil Code.

2. Art. 13(3) no. 1 of the Introductory Act to the Civil Code continues to apply as set forth in the reasons under D II 2 until the legislator has enacted new provisions, but in any case no longer than 30 June 2024.

R e a s o n s :

A.

The present judicial review proceedings concern Art. 13(3) no. 1 of the Introductory Act to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche – EGBGB, hereinafter: the Act) in the version of the Act to Prevent Child Marriages (Gesetz zur Bekämpfung von Kinderehen ) of 17 July 2017 (Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 2429). The provision, which has been in force since 22 July 2017, automatically qualifies any marriage involving a minor under the age of 16 concluded outside of Germany in a legal system that recognises the minor as being of legal age to enter into marriage as invalid under German law – subject to the exceptions in the transitional rule under Art. 229 § 44(4) of the Act. In principle, this also applies to marriages that were validly concluded outside of Germany before the provision entered into force and involve at least one spouse who had not yet reached the age of 16 at the time of marriage.

I.

Art. 13 of the Act is one of the central provisions on the domestic rules relating to international matrimonial law. Its section (1) primarily determines which law applies in determining whether a marriage exists (matrimonial statute). According to this provision, the requirements foreign nationals must meet to enter into marriage, even when they marry in the Federal Republic of Germany, are governed by the law of the state of which the respective persons engaged to be married are nationals. This also applies to the legal consequences if the marriage is not validly concluded. Art. 13(3) of the Act governs the domestic validity of marriages validly concluded under foreign law when at least one person was younger than 18 at the time of conclusion of the marriage, with differing outcomes depending on the age of the spouses at the time of marriage.

1. Given that Art. 13(1) of the Act – the matrimonial statute – makes reference to the law of the state of which the persons engaged to be married are nationals, foreign nationals who wish to marry in Germany must meet the prerequisites for entering into marriage that apply in their home country. These may include a minimum age requirement (capacity to marry). The application of foreign law requirements for entering into marriage to foreign nationals marrying in Germany is subject only to the essential principles of German law, in particular, fundamental rights (ordre public reservation, Art. 6 of the Act). If foreign nationals wish to marry in Germany, they must furnish a certificate of no impediment to marriage (§ 1309 of the Civil Code, Bürgerliches Gesetzbuch – BGB) to prove that they satisfy the applicable prerequisites for entering into marriage under the law of their home country.

The law of the state of which the spouses are nationals, which is made applicable by Art. 13(1) of the Act, also determines, in principle, the consequences of a legal defect in the conclusion of a marriage ([…]), such as a breach of the no-impediment-to-marriage requirement (as a marriage voidness statute – Ehebeseitigungsstatut ), including the prerequisites for addressing such a defect before the courts. Accordingly, the consequences of concluding a marriage with a person who had not yet reached the necessary minimum age at the time of the marriage, and therefore did not have the capacity to marry, are in principle to be determined by the applicable foreign law.

When the foreign nationals are refugees within the meaning of the Convention Relating to the Status of Refugees of 28 July 1951 (Geneva Convention), Art. 12(1) of that Convention provides, in deviation from Art. 13(1) of the Act, that the law of the country of domicile or residence applies. Pursuant to § 2(1) of the Asylum Act (Asylgesetz – AsylG), the Geneva Convention applies to all persons granted asylum status in Germany; their marriages are therefore governed by German law.

2. Art. 13(1) of the Act not only includes the matrimonial statute applicable to foreign nationals in Germany, it also governs the prerequisites for the domestic recognition of marriages concluded abroad. Such marriages are in principle considered to be valid in Germany, if they were validly concluded under the law of the place where the marriage occurred and the prerequisites for entering into marriage under the law of the state of which the spouses were nationals at the time of marriage were met ([…]). Under Art. 6 of the Act, the domestic recognition of marriages concluded outside of Germany is subject to the ordre public (see para. 3 above). A marriage is assumed to constitute a breach of the ordre public from the outset if at least one of the spouses is under 14 (cf. Bundestag document, Bundestagsdrucksache – BTDrucks 18/12086, p. 14). In enacting Art. 13(3) of the Act, the legislator has imposed further restrictions on the recognition of such marriages (see para. 8 ff. below). With regard to refugees within the meaning of the Geneva Convention, for whom the applicable matrimonial statute might change during the course of their refugee status as set out in Art. 12(1) of the Geneva Convention, Art. 12(2) of the Geneva Convention provides that rights previously acquired by a refugee that are dependent on personal status, and more particularly rights attaching to marriage, are to be respected.

German law does not provide for a formal procedure of judicial recognition for marriages concluded abroad. Any administrative body or person in Germany that must assess the validity of a foreign marriage as an incidental question for other legal relationships must independently examine the prerequisites for recognition in the case of a conflict of laws. While (putative) spouses may apply for the declaration of the existence or non-existence of a marriage under § 121(3) of the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarke it – FamFG), the general view is, however, that a judicial decision in this regard is only binding on the spouses concerned. The law does not expressly allow third parties, such as the youth welfare office or the immigration authority, to apply for such a finding; most experts therefore conclude that such a right does not exist ([…]).

3. Art. 13(3) of the Act – the provision in question in these proceedings – sets stricter limits than the previous law with regard to the domestic recognition of marriages concluded outside of Germany in which at least one of the spouses was a minor under German law. The marriage of a person who is under 16 at the time of marriage is – subject to the exceptions in Art. 229 § 44(4) of the Act – directly invalidated by Art. 13(3) no. 1 of the Act. A marriage concluded abroad in which (at least) one of the spouses is 16 or 17 years old at the time of marriage can be recognised in Germany, but it can also be annulled by judicial decision pursuant to Art. 13(3) no. 2 of the Act.

a) As the law stood until 21 July 2017, the validity of marriages of foreign nationals that were concluded outside of Germany was determined by the matrimonial statute of the respective state of which the spouses were nationals. This included the prerequisites for the capacity to marry. If the applicable matrimonial statute allowed persons under 16 years old to marry, the marriage was, in principle, also considered valid in Germany. The recognition of a marriage concluded under a foreign matrimonial statute was subject to Art. 6 of the Act (see para. 3 above). Under that provision, a marriage concluded outside of Germany and valid under foreign law that involved at least one underage spouse could be denied (full) validity in Germany if the recognition of the marriage was incompatible with the essential principles of the German legal order, in particular with fundamental rights (cf. Art. 6 second sentence of the Act). In order to prevent limping marriages, that is, marriages that are valid under the law of another state but invalid under German law, the threshold for an ordre public reservation in assessing whether a relationship valid under foreign law should be recognised in Germany in the case of a conflict of laws was, according to prevailing opinion, set high ([…]). When applying the ordre public reservation in individual cases, however, numerous questions remained unresolved in the case-law of the ordinary courts; these included the significance of the age of the spouses and the legal consequences of finding a breach of ordre public standards with regard to a marriage validly concluded under foreign law. The legislator considered the lack of uniformity in the application of the law to be unsatisfactory (cf. BTDrucks 18/12086, pp. 1, 15).

b) In order to establish legal clarity with regard to the domestic validity of marriages involving underage spouses concluded outside of Germany and to protect the minors concerned (cf. BTDrucks 18/12086, p. 1), the parliamentary groups supporting the Federal Government tabled a Draft Act to Prevent Child Marriages in the 18th parliamentary term of the German Bundestag in April 2017. This draft contained the legal consequences which are now applicable under Art. 13(3) of the Act, namely, that marriages concluded when at least one of the spouses had not yet reached the age of 16 are void without exception, and that marriages concluded when at least one of the spouses was 16 or 17 years old may in principle be annulled.

[…]

On 1 June 2017, the Bundestag adopted the Act to Prevent Child Marriages ([…]), which was based on the draft act and entered into force on 22 July 2017.

c) Under Art. 13(3) no. 1 of the Act, any marriage concluded outside of Germany in which either spouse had not yet reached the age of 16 is invalid in Germany. Marriages concluded when at least one of the spouses was 16 or 17 years old may be annulled under German law (Art. 13(3) no. 2 of the Act). This requires that the marriage not be invalid under the law of the foreign state. Foreign marriages with at least one minor at the time of marriage may not be invalidated or annulled if one of the exceptions under Art. 229 § 44(4) of the Act apply.

[…]

aa) […] A marriage that is valid under foreign law [involving at least one spouse under 16] has no legal effect in Germany. In terms of legal status, the persons concerned are considered to be unmarried in Germany and cannot – including vis-à-vis third parties – invoke their marriage status. Due to the difference in validity under foreign marriage law, on the one hand, and under domestic conflict of laws rules on the other, the referred provision results in limping marriages.

bb) Beyond the invalidation of a foreign marriage affected by Art. 13(3) no. 1 of the Act, the law does not regulate any implications for the legal consequences of the marriage and its invalidity under German law. For instance, the question of which legal framework applies when one of the spouses in a limping marriage intends to marry another person has not been resolved conclusively, as there are no specific provisions in this regard. If the intended marriage were to take place in Germany, it could be assumed that Art. 13(2) of the Act would apply. A possible prohibition of bigamy under the law of the state of origin of the person wishing to marry would then not apply. However, given that the state of origin considers the first marriage to be valid, it would not issue a certificate of no impediment to marriage pursuant to § 1309(1) of the Civil Code for what it would consider to be a second marriage. The person wishing to marry would then need an exemption pursuant to § 1309(2) of the Civil Code.

cc) The Act to Prevent Child Marriages ([…]), which inserted the referred provision into the Introductory Act to the Civil Code, contains no provision regarding the subsequent legal effect of the statutory invalidation of the marriages affected by Art. 13(3) no. 1 of the Act under German law. However, the invalid legal status of the marital relationship in the case of a conflict of laws does not automatically apply to all legal effects resulting from the marriage. Instead, private international law contains separate rules relating to the various situations.

[…]

II.

In the initial proceedings before the family court, the applicant contested his separation from the minor concerned, which was ordered by the youth welfare office – her legal guardian – and only permitted contact between the two for an hour at a time accompanied by a third party. He requested that she be permitted to live with him, citing the marriage concluded in Syria.

The applicant, who was born on 1 January 1994, and the minor concerned, who was born on 1 January 2001, are Syrian nationals and Sunni Muslims. They are cousins. According to the findings available to the referring court, they were married before a Sharia court in Syria. As a result of the war in Syria, they fled together to Germany, where they arrived in August 2015. In September 2015, the competent youth welfare office took the minor concerned into care and placed her in a youth shelter for underage female refugees. The process of appointing a legal guardian was also initiated. The family court confirmed the suspension of parental custody for the minor concerned (§ 1674(1) Civil Code), issued an order for the appointment of a legal guardian and named the youth welfare office as the official guardian.

The applicant thereupon applied to the family court to contest the taking of his wife into care by the youth welfare office and to request that she be permitted to live with him, citing their valid marriage. The family court interpreted the application as an application to determine contact arrangements between the applicant and the minor concerned, and rendered a decision granting unsupervised contact to a certain extent. The Higher Regional Court (Oberlandesgericht ) reversed this order. It considered the marriage concluded under Syrian law to be valid under German law, meaning that the legal guardian was not authorised to determine the minor’s place of residence. The legal guardian filed a complaint on points of law (Rechtsbeschwerde ) with the Federal Court of Justice (Bundesgerichtshof ), applying for the reversal of the order of the Higher Regional Court and for a decision permitting three hours of supervised contact per week.

III.

The Federal Court of Justice stayed the proceedings and referred the question to the Federal Constitutional Court of whether Art. 13(3) no. 1 of the Act was compatible with Art. 1, Art. 2(1), Art. 3(1) and Art. 6(1) of the Basic Law (Grundgesetz – GG), given that the provision categorically classifies marriages concluded under a foreign legal system that recognises a minor as being of legal age to marry – subject to the exceptions in the transitional rule under Art. 229 § 44(4) of the Act – as invalid under German law if one or both of the parties had not yet reached the age of 16 at the time of the marriage.

[…]

IV.

Statements on the referral were submitted by the Federal Government, the Bavarian Land Government and the Hessian Land Government, as well as by the Federal Working Group of Land Youth Welfare Offices (Bundesarbeitsgemeinschaft Landesjugendämter ), the Federal Bar Association (Bundesrechtsanwaltskammer ), the Max Planck Institute for Comparative and International Private Law, the German Conference of Family Courts (Deutscher Familiengerichtstag e.V. ), the Academic Society for Family Law (Wissenschaftliche Vereinigung für Familienrecht e.V. ), the German Female Lawyers’ Association (Deutscher Juristinnenbund e.V. ), the German Institute for Human Rights (Deutsches Institut für Menschenrechte e.V.), the UNICEF German National Committee, the German Children’s Fund (Deutsches Kinderhilfswerk e.V. ), the German Society for Psychology (Deutsche Gesellschaft für Psychologie e.V .), the Professional Association of German Psychologists (Berufsverband Deutscher Psychologinnen und Psychologen e.V. ), the Professional Association of Child and Adolescent Psychotherapists (Berufsverband der Kinder- und Jugendlichenpsychotherapeutinnen und Kinder- und Jugendlichenpsychotherapeuten e.V. ; now: bjk ‒ Bundesverband für Kinder- und Jugendlichenpsychotherapie e.V. ) and the Central Council of Muslims in Germany (Zentralrat der Muslime in Deutschland e.V. ). Terre des Femmes (TERRE DES FEMMES – Menschenrechte für die Frau e.V. ) submitted a statement on its own initiative. The German Lawyers’ Association (Deutscher Anwaltverein e.V. ) made reference to a publication by two members of its Constitutional Law Committee. The parties in the initial proceedings were given the opportunity to submit statements.

The First Senate of the Federal Constitutional Court sent a comprehensive list of questions to the bodies asked to submit statements; the questions concerned, inter alia, the number of persons concerned by the referred provision, the way in which child and youth welfare organisations dealt with them and the consequences of invalidity for the persons concerned, as well as the application and interpretation of Art. 13(3) no. 1 of the Act by the authorities and courts.

[…]

17. The Federal Government, the Land Youth Welfare Office in Bremen and the Land Youth Welfare Office in Lower Saxony, the Professional Association of German Psychologists, the Professional Association of Child and Adolescent Psychotherapists, the German Institute for Youth Welfare and Family Law (Deutsches Institut für Jugendhilfe und Familienrecht ) and the German Society for Psychology answered individual questions of the Federal Constitutional Court (see para. 61 above).

[…]

B.

The referral satisfies the admissibility requirements following from Art. 100(1) first sentence, second alternative of the Basic Law and § 80(2) first sentence of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) (see I. below). Its admissibility is not precluded by the fact that the application in the initial proceedings has become moot (see II. below).

I.

[…]

II.

[…]

C.

Art. 13(3) no. 1 of the Act fails to satisfy all of the applicable constitutional requirements; insofar as the exceptions under Art. 229 § 44(4) of the Act do not apply, it violates the fundamental right of freedom of marriage under Art. 6(1) of the Basic Law.

I.

Art. 6(1) of the Basic Law protects the institution of marriage (see 1. below). Its scope of protection is affected by Art. 13(3) no. 1 of the Act (see 2. a) below). This is not justified under constitutional law. Nevertheless, Art. 13(3) no. 1 of the Act is compatible with the structural principles defining marriage within the meaning of Art. 6(1) of the Basic Law (see 2. b) below). While the legislator is authorised in principle to make the applicability of domestic law to marriages concluded outside of Germany subject to a minimum age, the lack of provisions addressing the consequences of invalidity and the absence of any possibility of the marriages becoming valid under domestic law once both partners have reached the age of majority render Art. 13(3) no. 1 of the Act in its present form inappropriate and therefore not proportionate in the strict sense (see 2. c) below).

1. Art. 6(1) of the Basic Law provides that marriage enjoys the special protection of the state. The Constitution thereby not only guarantees the institution of marriage, but, as a binding decision on values enshrined in the Constitution, it mandates special protection by the state for the entire body of private and public law concerning marriage (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 6, 55 <71 ff.>; 105, 313 <346>; 131, 239 <259>; 133, 377 <409 para. 81>, each with further references). In particular, in its dimension as a fundamental freedom, Art. 6(1) of the Basic Law protects fundamental rights holders from state interference with their marriage that is not justified under constitutional law (cf. Federal Constitutional Court, Order of the First Senate of 21 July 2022 - 1 BvR 469/20 inter alia -, para. 82 ‒ Proof of vaccination (measles), with further references; regarding the right to family life, which is also guaranteed by Art. 6(1) of the Basic Law, see also BVerfGE 151, 101 <124 para. 56> ‒ Stepchild adoption ).

a) aa) Marriage within the meaning of Art. 6(1) of the Basic Law is a partnership that is in principle formed for the long term; it is based on the free will, equality and autonomy of the partners, with the official ceremony of marriage serving to substantiate the marriage through a formal and recognisable act (cf. BVerfGE 10, 59 <66>; 29, 166 <176>; 62, 323 <330>; 105, 313 <345>; 112, 50 <65>; 121, 175 <193>; 137, 273 <342 para. 178>). The freedom of marriage as a fundamental right applies equally to German citizens, foreign nationals and stateless persons (cf. BVerfGE 31, 58 <67>; 51, 386 <396>; 62, 323 <329>).

The scope of protection of Art. 6(1) of the Basic Law is not limited to marriages concluded under German law. Rather, it extends in principle to all marriages, regardless of where or under which legal system they have been concluded or whether the legal effect of the marital or familial bond is determined by German law or foreign law (cf. BVerfGE 76, 1 <41>). Even so-called limping marriages that are valid in one legal order, but invalid in the other – for example, due to different matrimonial statutes applicable to the spouses – are protected by the fundamental right to marriage (cf. BVerfGE 62, 323 <330 f.>). However, marriage-like partnerships concluded under foreign law that are incompatible with the Basic Law’s concept of marriage and the family, and that thus contravene structural principles of constitutional law, do not, as a rule, fall within the scope of protection of Art. 6(1) of the Basic Law (cf. BVerfGE 76, 1 <41 f.>; […]).

bb) Art. 6(1) of the Basic Law guarantees the freedom to marry a person of one’s own choosing (cf. BVerfGE 29, 166 <175>; 31, 58 <67>; 36, 146 <161>). This freedom is a cornerstone of the free autonomous existence of human life that is guaranteed by fundamental rights (cf. BVerfGE 36, 146 <162>). Moreover, Art. 6(1) of the Basic Law encompasses a right to marital cohabitation (cf. BVerfGE 76, 1 <42>), a right to the protection of marital cohabitation (cf. BVerfGE 10, 59 <66>; 53, 224 <245>; 62, 323 <330>; 76, 1 <42 f.>; 114, 316 <335>) and the freedom to shape one’s marital or family life according to one’s own wishes (cf. Federal Constitutional Court, Orders of the Second Chamber of the First Senate of 6 June 2011 - 1 BvR 2712/09 -, para. 9 and of 9 November 2011 - 1 BvR 1853/11 -, para. 12). Art. 6(1) of the Basic Law also protects marriage as a community of shared responsibility and guarantees a sphere of private life that is beyond the reach of the state (cf. BVerfGE 107, 27 <53>; 121, 175 <198>). Given the general protection of marriage, the guarantee of access to the institution of marriage for those wanting to marry also encompasses the possibility of domestic recognition of a marriage validly concluded abroad.

b) Yet the freedom of marriage also requires and allows for ordinary law provisions, particularly provisions concerning the prerequisites for entering into a marriage. This follows from the inseparable link between the fundamental right and the guarantee of the institution of marriage, which mandates specification in ordinary law. Giving effect to the decision on values in Art. 6(1) of the Basic Law therefore requires that a general framework on family law be enacted which legally defines and delimits marriage as a constitutionally protected partnership (cf. BVerfGE 31, 58 <69>; 36, 146 <161 f.>; 81, 1 <6 f.>).

Such framework must adhere to the essential structural principles that determine the institution of marriage; these are informed by the pre-existing and established forms of living upon which Art. 6(1) of the Basic Law builds, combined with the freedom characteristic of this fundamental right and other constitutional guarantees (cf. BVerfGE 31, 58 <69>; 36, 146 <162>; 62, 323 <330>; see also BVerfGE 81, 1 <6 f.>). The content of the guarantee of the institution of marriage cannot simply be derived from existing ordinary law; rather, the individual provisions of the Civil Code must be seen in light of Art. 6(1) of the Basic Law as the higher-ranking provision that contains the fundamental principles and provides guidance in this regard (cf. BVerfGE 31, 58 <69 f.>; 36, 146 <162>).

One of the structural principles of marriage under constitutional law is that marriage is a legally binding, long-term partnership that involves special mutual obligations of the partners and is based on their free will, with the official ceremony of marriage serving to substantiate the marriage through a formal and recognisable act (cf. BVerfGE 10, 59 <66>; 121, 175 <193>; 124, 199 <225>; 131, 239 <259>; 137, 273 <342 para. 178>). A marriage protected under Art. 6(1) in conjunction with Art. 3(2) of the Basic Law is a partnership in which both spouses are equal and jointly responsible for determining their personal and economic life, which rules out the exercise of one-sided dominance by one spouse in determining legal arrangements (cf. BVerfGE 149, 86 <124 para. 105> with further references − Farm transfer ). This structural principle of equal partnership and shared responsibility of spouses does not deprive married couples of the freedom to determine the way in which their shared lives will be shaped. In principle, however, the legislator’s duty to observe constitutional structural principles rules out legislation that would lead to one-sided dominance by one spouse in determining legal arrangements that affect both spouses (cf. BVerfGE 149, 86 <124 para. 105>). In order to guarantee the structural principle of equal partnership, the legislator can even be required to enact legislation that would bring about such equality.

c) Provisions giving specific shape to the legal institution of marriage must be compatible with structural principles. If this prerequisite has been met, the question of whether provisions that affect the scope of protection of Art. 6(1) of the Basic Law are constitutional is determined by the principle of proportionality, which takes into account the respective latitude afforded to the legislator.

In its previous case-law on the freedom of marriage, the Federal Constitutional Court has taken this into account by differentiating between provisions giving specific shape to marriage and provisions interfering with the scope of protection of Art. 6(1) of the Basic Law, without expressly assessing proportionality (cf. BVerfGE 55, 114 <126 f.>; 81, 1 <7 f.>). Regardless of whether they are categorised as interferences or as elements giving specific shape [to the legal relationship], impediments to marriage must adhere to proportionality requirements.

d) In this regard, the legislator is in principle afforded latitude – which is nonetheless limited by the structural principles and proportionality requirements. The decision of how to give shape to marriage is part of the political decision-making powers of the legislator, provided that it does not disregard the protection mandated by Art. 6(1) of the Basic Law (cf. BVerfGE 31, 58 <69 f.>; 81, 1 <7>). Its latitude is not always the same, but greatly depends on the specific ways in which marriage may be shaped by legislation, which can affect the freedom of marriage guaranteed by Art. 6(1) of the Basic Law to differing degrees. For instance, when it comes to provisions concerning the manner of concluding marriage, the legislator is afforded wide latitude. Yet even in this respect, substantive or formal requirements for entering into marriage that are either too strict or too lax may be incompatible with the freedom of marriage or other structural principles of marriage arising from the Constitution (cf. BVerfGE 31, 58 <70>; 36, 146 <162>). When it comes to impediments to marriage, the legislator’s latitude is narrower than it is with regard to provisions concerning the manner of entering into marriage. This is because such impediments block access to the institution of marriage altogether. The freedom guaranteed by Art. 6(1) of the Basic Law requires that the state act with great restraint in this respect. Where two persons with the capacity to marry wish to enter into marriage, the legislator may only set limits to this wish if there are factual reasons for doing so that arise from the nature and form of modern marriage and follow from the structural principles determining the institution of marriage within the meaning of the Constitution (cf. BVerfGE 36, 146 <163>). These limits may also include requirements regarding the capacity to marry in order to ensure that the marriage is based on the autonomous decision of both spouses, such as minimum age limits. The structural principles guaranteed by the freedom of marriage limit the legislator’s latitude (cf. BVerfGE 31, 58 <69>; 53, 224 <245>; 62, 323 <330>), at least as long as no constitutionally significant change in the understanding of the concept of marriage has taken place ([…]).

e) The aforementioned standards regarding the freedom of marriage also apply to the provisions of German private international law. As these provisions are part of domestic law, fundamental rights are the applicable standard here (cf. BVerfGE 31, 58 <72 ff.>).

2. Art. 13(3) no. 1 of the Act, which does affect the scope of protection of the freedom of marriage (see a) below), is compatible with the structural principles defining marriage within the meaning of Art. 6(1) of the Basic Law (see b) below). However, in cases where the exceptions provided for under Art. 229 § 44(4) of the Act do not apply, Art. 13(3) no. 1 of the Act imposes inappropriate limitations on the freedom of marriage, in that it lacks provisions addressing the consequences of invalidity or any possibility for affected marriages to become valid under German law once the parties have reached the age of majority. It is therefore not proportionate in the strict sense (see c) below).

a) The statutory invalidation under German law of a marriage validly concluded outside of Germany resulting from Art. 13(3) no. 1 of the Act, subject to the exceptions under Art. 229 § 44(4), affects the scope of protection of Art. 6(1) of the Basic Law, regardless of whether a specific foreign marriage subject to the Act is in breach of the ordre public (Art. 6 of the Act). The referred provision also applies to foreign marriages that do not conflict with the structural principles under constitutional law and therefore fall within the scope of protection of the freedom of marriage.

Art. 13(3) no. 1 of the Act affects any marriage validly concluded under foreign law and involving at least one spouse who was not yet 16 years of age at the time of marriage, unless the exceptions under Art. 229 § 44(4) of the Act apply. The statutory invalidation of such marriages under German law interferes with the very existence of these marriages and precludes affected spouses from continuing their marriage as a community of shared responsibility in this legal form in Germany. It affects the scope of protection of Art. 6(1) of the Basic Law, especially in view of the fact that the legal consequence of the referred provision also applies to marriages concluded under foreign law that had been valid in Germany under the previous legal framework and could only have been annulled on the basis of an assessment in the individual case. Thus, the domestic effects of Art. 13(3) no. 1 of the Act resemble an impediment to marriage. Such an impediment generally affects the scope of protection of Art. 6(1) of the Basic Law.

Art. 13(3) no. 1 of the Act provides for the statutory invalidation under German law of even those marriages validly concluded under foreign law that do not contravene the constitutional structural principles of Art. 6(1) of the Basic Law. Marriage, as protected under constitutional law, is a partnership based on the free will and equality of both partners, with both spouses having shared responsibility in their communal life. This requires that each spouse has the ability to make the decision to enter into such a relationship for themselves (cf. Federal Constitutional Court, Order of the Third Chamber of the First Senate of 18 December 2002 - 1 BvL 14/02 -, para. 12 f.). Not only must there be no coercion in the decision to marry, there must also be a sufficient level of development of one’s personality, which minors might not yet have achieved. As a result, they lack the necessary capacity to enter into marriage.

The minimum age for which this is the case, or whether a lack of capacity to marry would result in a marriage validly concluded under foreign law to not fall within the scope of protection of Art. 6(1) of the Basic Law on the grounds that it is incompatible with the structural principle of marriage as an equal partnership entered into on one’s own free will, need not be decided here. This is because it cannot be assumed that the capacity to marry is – as an element of a constitutional structural principle – generally only present from the age of 16 ([…]). It should be noted that until 1 January 1975, and thus including the period of application of the Basic Law, German civil law permitted young women under the age of 16 to marry in certain circumstances (§ 1 of the Marriage Act, Ehegesetz – EheG). The constitutional understanding at the time did not automatically exclude the marriage of someone under 16 years of age from the scope of protection of Art. 6(1) of the Basic Law. There has not been significant constitutional change in this respect.

b) The statutory invalidation of specific marriages validly concluded under foreign law as set out in the referred provision does not violate the constitutional structural principles of marriage within the meaning of Art. 6(1) of the Basic Law. Instead, by preventing marriages concluded before the age of 16 from being legally binding under German law, it is specifically aimed at ensuring that marriages in Germany adhere to the structural principle of marriage as an equal partnership entered into on one’s own free will and allowing for joint responsibility of the spouses. Children are still in the process of developing. From a psychological and social perspective, children do not possess the same level of capability, skill, competence, knowledge or maturity as adults. They often lack the experience necessary to recognise the risks associated with legal declarations and to be able to assess them realistically ([…]). However, these qualities are indispensable for making an informed and autonomous decision to enter into marriage with awareness of the associated consequences and for being able to organise the marriage in such a way that there is at least the possibility of having an equal partnership. Whether Art. 13(3) no. 1 of the Act gives sufficient effect to the freedom, guaranteed by Art. 6(1) of the Basic Law, to enter into marriage on the basis of an informed and autonomous decision is not a question of its compatibility with the structural principle, but of the proportionality of the interference with freedom of marriage.

c) Art. 13(3) no. 1 of the Act interferes with the freedom of marriage guaranteed by Art. 6(1) of the Basic Law; this interference is not justified under constitutional law. The legislator is authorised in principle to make the domestic validity of marriages concluded outside of Germany subject to a minimum age at the time of marriage. Furthermore, the legislator is not precluded, from the outset, from classifying a marriage as legally void, without a case-by-case assessment, if the minimum age at the time of marriage is not met. Although Art. 13(3) no. 1 of the Act was enacted in pursuit of a legitimate aim (see aa) below), and is suitable (see bb) below) and necessary (see cc) below) to achieve this aim, it is nevertheless inappropriate in its current form and is therefore not proportionate in the strict sense (see dd) below).

aa) The statutory invalidation under German law of affected marriages validly concluded outside of Germany under Art. 13(3) no. 1 of the Act – subject to the exceptions under Art. 229 § 44(4) of the Act – pursues the legitimate aims of the protection of minors and legal clarity (cf. BTDrucks 18/12086, pp. 1, 14 f.).

In protecting minors, the legislator gives effect to its constitutional responsibility for protection. According to the explanatory memorandum to the Draft Act to Prevent Child Marriages, the referred provision serves to counteract the harm to the best interests of the child that results from marrying too early and the associated diminished opportunities of underage spouses for personal development (cf. BTDrucks 18/12086, pp. 1, 15). The legislator thus clearly sought to advance the individual right of children to have the state support and promote their development to become self-reliant persons within society – a right derived from Art. 2(1) of the Basic Law. This responsibility of the state to protect children extends to all living conditions essential for the development of a child’s personality (cf. in this regard BVerfGE 159, 355 <381 f. para. 46> − Federal pandemic emergency brake II ; Federal Constitutional Court, Order of the First Senate of 21 July 2022 - 1 BvR 469/20 inter alia -, para. 79, each with further references). The legislator’s assumption that the previous legal framework did not provide adequate protection for minors with regard to the domestic recognition of marriages validly concluded outside of Germany (cf. BTDrucks 18/12086, p. 1) rests on a sufficiently sound basis. It is sufficiently established in developmental psychology that children under the age of 16 are generally incapable of assessing the consequences associated with entering into a marriage (regarding children’s stages of development see BTDrucks 17/12200 pp. 53 ff., 186 ff.). This puts their ability to make an informed and autonomous decision in this regard into question. Yet this ability is a necessary part of the structural principle of marriage as an equal partnership, which forms the basis of Art. 6(1) of the Basic Law (see para. 114 above).

The protection of minors is also a legitimate aim under constitutional law insofar as the referred provision is intended to contribute to international efforts to prevent child marriages (cf. BTDrucks 18/12086, pp. 1, 15). This legislative aim is consistent with the international efforts of the United Nations to combat the harmful practices of child marriage, early marriage and forced marriage, which negatively affect the chances of many children, above all girls ([…]). According to Art. 16(1) of the Universal Declaration of Human Rights (UDHR), “marriage shall be entered into only with the free and full consent of the intending spouses”, thus requiring that both spouses have the capacity to marry. Art. 23 of the International Covenant on Civil and Political Rights (ICCPR; cf. BGBl II 1973 p. 1533) and Art. 10 no. 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR; cf. BGBl II 1973 p. 1569 and BGBl II 1976 p. 428) contain similar requirements. In addition, Art. 16(1) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW; cf. BGBl II 1985 p. 647) does not just call for the elimination of discrimination against women in marriage and family relations. Its section (2) also provides that the marriage of a child has no legal effect and that countries should take steps to set a minimum age for marriage. The UN Committee on the Elimination of Discrimination against Women takes the view that Art. 16(2) of the Convention refers to all young people below the age of 18 years ([…]; regarding the significance of the legal views of committees, cf. BVerfGE 142, 313 <346 para. 90>; 151, 1 <29 para. 65>). In addition, with regard to the Convention on the Rights of the Child (UN CRC), which has been in force in Germany without restriction since 15 July 2010 (cf. BGBl II 1992 pp. 121, 990), the competent UN Committee on the Rights of the Child has repeatedly recommended a minimum age of 18 years for marriage ([…]). In light of the decision of the Basic Law in favour of international cooperation as expressed in Art. 24(1) (cf. BVerfGE 58, 1 <41>), it is constitutionally legitimate to also seek to have the law serve not only the protection of the minors (at the time of marriage) that might be directly affected by Art. 13(3) no. 1 of the Act, but also the worldwide protection of those affected by the practice of child marriage.

The referred provision’s further purpose of providing legal clarity following the inconsistent application of the previously applicable general clause of Art. 6 of the Act (cf. BTDrucks 18/12086, pp. 1, 14 f.) is also legitimate under constitutional law.

bb) Art. 13(3) no. 1 of the Act is suitable under constitutional law to achieve the aims pursued by the provision. Both the direct and indirect protection of minors sought as well as the legal clarity brought about by the domestic invalidity of the marriages subject to the provision can be furthered by the referred provision (regarding the standards cf. BVerfGE 159, 355 <406 f. para. 114> with further references).

(1) The statutory declaration of invalidity under German law can further the purpose of protecting those who are under 16 years of age at the time of marriage from the consequences of such marriage and the potentially associated loss of opportunities for personal development. In this way, the non-recognition of marriages which, due to the age and stage of development of the parties, were not entered into based on a fully autonomous decision, can restore the freedom of self-determination, in that the marriage has no legal force in Germany. The provision can also counter the impairment of a minor’s self-determination that occurs at the time of marriage and continues for the duration of marital cohabitation.

The invalidation of such marriages can also help protect minors from risks that may develop in the course of marital cohabitation. The nullity of such marriages in Germany results in more legal options for the competent guardian in exercising the right to determine the place of residence of married minors. Guardians can decide, without having to take into account that the person concerned is married, which type of accommodation – including separation from the (foreign law) spouse – is in the child’s best interests based on the guardians’ assessment. This may advance the protection of minors. The suitability of the provision is not called into question by the statements in these proceedings, in particular, the statements of the German Institute for Youth Welfare and Family Law and of the Land Youth Welfare Office in Bremen that in practice this option is exercised with caution, in that (foreign law) spouses are only separated if there is a risk to the child’s welfare. Given that the provision expands the legal instruments available to protect minors, the practice followed in individual cases does not alter the fact that the provision may further the legislative purpose.

The domestic invalidation of affected marriages provided for by Art. 13(3) no. 1 of the Act not only protects minors from risks arising from the legal status of marriage, particularly the obligation of marital cohabitation, but also from financial claims. Financial obligations and their accompanying economic risks are largely ruled out, at least when the preliminary question of the validity of the marriage is resolved on the basis of domestic choice of law rules ([…]). The suitability of the provision is not called into question by the fact that, in addition to potentially risky legal obligations of the minor, potentially advantageous entitlements and legal positions and additional protection provided by marriage also cease to exist.

Nor is the referred provision inappropriate under constitutional law because it does not provide for a case-by-case assessment ([…]). The Basic Law does not from the outset preclude provisions to protect minors or to ensure respect for the best interests of the child from relying on what the legislator assumes to be the typical case (cf. BVerfGE 107, 150 <178 f.>). Such typification is used, inter alia, for legal provisions regarding the contractual capacity of minors (§§ 104 f. Civil Code) that set rigid limits based on age in order to protect minors in the typical stages of development from the dangers of participating in legal relationships ([…]).

(2) When taking into account the legislator’s latitude with regard to the suitability of a law for achieving its purpose (cf. in this regard BVerfGE 159, 223 <305 f. para. 185> − Federal pandemic emergency brake I ; 159, 355 <406 f. para. 114>, each with further references), which is limited here, given that the domestic effect of the referred provision resembles an impediment to marriage (see para. 140 below), it is not constitutionally unsuitable to bar future marriages involving under 16-year-olds concluded under foreign law. This applies at least insofar as the law is aimed at preventing child marriages internationally and in a way that has a general preventative effect ([…]). The legislator’s underlying assumption that the referred provision may help raise international awareness of the harmful practice of child marriage has a sufficient basis in the rules of international law, which also contain provisions relating to child marriages (see para. 128 above). Given that states bound by international law have entered into obligations to eliminate child marriages, a national provision resulting in certain child marriages being declared void can help strengthen the resolve of other states to realise this goal (cf. in this respect BVerfGE 157, 30 <142 para. 203> − Climate change ).

(3) The referred provision is also suitable in that it serves to establish legal clarity with regard to the domestic status of affected marriages. Unlike the relevant criterion under the previous legal framework – the ordre public reservation, which was considered vague ([…]) and had led to diverging decisions ([…]) –, Art. 13(3) no. 1 of the Act relies solely on the criterion of age at the time of marriage, without any margin of assessment. This promotes legal clarity, at least with regard to the status of marriage. The provision is not rendered unsuitable for the aim of improving legal clarity by the fact that determining someone’s age may involve practical difficulties in the individual case ([…]), in particular for refugees. Problems in determining the factual prerequisites of constituent elements contained in legal provisions are not a specific phenomenon with regard to the referred provision.

Art. 13(3) no. 1 of the Act also does not run counter to the aim of legal clarity on the grounds that there are no express provisions regarding the legal consequences arising from the domestic nullity of marriages validly concluded outside of Germany (see para. 25 ff. above). The legislator aimed to create a clear framework regarding the status of marriages involving under 16-year-olds at the time of marriage. The provision can further this aim. Uncertainties as to the legal provisions applicable to the consequences of marriage do not alter this fact.

cc) The domestic statutory invalidation of affected marriages validly concluded outside of Germany resulting from the referred provision is necessary under constitutional law both to protect minors and to improve legal clarity with regard to the status of such marriages. It is not discernible that there were any other legal means available to the legislator that are less burdensome and clearly equally as effective in achieving the legislative purposes pursued.

(1) Interferences with fundamental rights must not go further than what is necessary to protect the common good. A measure falls short of this standard if an equally effective means is available that would be less intrusive for the affected fundamental rights holders and would not entail greater burdens for third parties or the general public. It must be clearly established that the alternative measure is equally effective for achieving the purpose pursued in every respect. The legislator has a margin of appreciation for the assessment of necessity. This margin of appreciation includes, among other things, appraising the effects of the chosen measures, including in comparison with other, less intrusive measures. The margin may be narrower depending on the fundamental right affected or the severity of interference (cf. BVerfGE 159, 223 <314 para. 203 f.> with further references; established case-law).

(2) (a) Based on these standards, the legislator had only a narrow margin of appreciation in this case. The statutory invalidation in Art. 13(3) no. 1 of the Act has domestic effects resembling an impediment to marriage for the spouses who are validly married under foreign law. They are prevented from continuing their partnership as a marriage, unless they re-marry in Germany. This, however, would likely involve factual and legal difficulties. The spouses falling within the scope of the referred provision are usually foreign nationals, who, pursuant to § 1309(1) of the Civil Code, need a certificate of no impediment to marriage from their country of origin to (re-)marry in Germany. This will be almost impossible to obtain, given that the affected persons are validly married under the law of the state in question. Instead, they can only seek to obtain an exemption from the requirement to furnish a certificate, which is subject to the narrow conditions of § 1309(2) third sentence of the Civil Code ([…]). This effect, which resembles an impediment to marriage, not only limits the legislator’s latitude in enacting such provisions (see para. 117 above), but also restricts the legislator’s margin of appreciation with regard to necessity, given that it encroaches on the spouses’ ability to have a marriage that is valid in Germany.

(b) That said, the referred provision is still necessary under constitutional law. Some of the alternatives to the invalidation of affected marriages directly resulting from the law are not clearly equally as effective, while others are not clearly less burdensome for the affected persons.

(aa) Art. 13(3) no. 1 of the Act is not rendered unnecessary by the fact that the invalidity of the marriages affected by the provision could also be declared with universal effect as to all third parties in individual court proceedings ([…]). This would not guarantee either a lower burden or equal effectiveness in achieving the purposes of the legislator.

It is true that individual court proceedings would have the advantage of the universal effect of a declaration of (in)validity. The authorities and courts concerned with the marriage in question would then not have to conduct an individual assessments of domestic validity on the basis of the statutory elements. Diverging decisions on the same marriage regarding its validity in Germany would be ruled out ([…]). However, it is not certain that a declaration of invalidity in a court proceeding could bring about the same protection of minors as a statute that automatically invalidates the marriage in Germany. As only the court decision would be decisive for determining the status of the marriage, no one could invoke the invalidity of the underage marriage prior to the decision being issued. Until the decision became final and binding, the legal effects of the underage marriage would continue to unfold. It is exactly against these legal effects that underage spouses, who have a greater need for protection due to their generally underdeveloped capacity for self-determination, need to be protected. Given the amount of time necessary for a court decision to become final and binding, having a declaration of invalidity made by a court cannot guarantee the same results as a direct statutory invalidation.

Moreover, it is not guaranteed that such court proceedings would be less burdensome than the framework chosen by the legislator. In qualitative terms, the severity of interference is determined by the extent to which the actions and legal positions protected by fundamental rights are curtailed (cf. BVerfGE 30, 292 <316>), including the associated economic consequences (cf. BVerfGE 123, 186 <239>). In quantitative terms, the severity of interference is determined by the number of those affected. Neither the qualitative nor the quantitative aspect of the burden would change in the case of court proceedings that declare the marriage to be invalid based on the same statutory elements. Both the overall number of persons affected and the weight of the legal consequence (invalidity) would remain the same.

Even if court proceedings were only conducted in the event of a request to waive the invalidity of a marriage and all other affected marriages were to remain invalid by operation of the law, it is not sufficiently guaranteed that this would be less burdensome than the referred provision. It is true that it could mitigate the effects of the provision, in that the overall number of unrecognised marriages would be lower than the blanket statutory invalidation of all affected marriages. However, the burdens that would result from the court proceedings themselves must be taken into account and weighed against a law providing for a legal consequence that applies directly to all affected persons without distinction. Little information is available on such burdens and such information that does exist is inconclusive. It is occasionally reported that affected minors might find themselves in a situation where they are pressurised and influenced – much like their situation at the time of marriage – and might then feel compelled “to defend” their marriage against encroachment by the state ([…]). They might be faced with blame in their home country if they are unsuccessful in preventing dissolution of the marriage by the courts. However, the Land Youth Welfare Office in Bremen submitted in its statement in these proceedings that the persons affected did in fact wish to contribute their views in proceedings concerning the validity of their marriage (in Germany) ([…]). In view of these inconclusive findings and assessments regarding the possible burdens of court proceedings, the assumption that such proceedings would be burdensome still falls within the legislator’s – in this case narrow – margin of appreciation. It is also apparent from the various provisions enacted to protect child and youth witnesses in criminal proceedings ([…]) that the legislator plausibly considers that the involvement of children and youths in court proceedings gives rise to specific burdens, especially when the proceedings concern their own rights, interests and experiences. There is a certain degree of similarity between these types of proceedings and the framework proposed here as a potentially less intrusive alternative to the referred provision, i.e. court proceedings resulting in an individual decision on the basis of the respective need for protection, and thus the best interests of the child.

(bb) The referred provision is also not rendered unnecessary by the fact that the legislator could have chosen a framework with constituent elements that, like Art. 6 of the Act, merely set out constellations in which minors need to be protected from the dangers of early marriage in abstract and general terms, rather than providing for a rigid age limit.

In this respect, too, it is not clear that such a framework would be less burdensome than Art. 13(3) no. 1 of the Act. It is true that the interference might be less severe than that of the referred provision, since marriages would not be declared invalid if the persons involved no longer were in need of such protection. Fewer marriages would be declared invalid in Germany overall. However, this quantitative aspect must be weighed against the additional burdens on those affected by the provision that would follow from the proceedings necessary to determine the circumstances of the individual case. Based on the experience with the application of Art. 6 of the Act, an investigation of the aspects relevant to the need for protection in an individual case will typically require more time and effort than establishing the age of the spouses at the time they married. A determination of these aspects would generally involve the investigation of highly private circumstances, most notably the circumstances of the marriage in question. This would entail burdens on affected spouses, and thus also on the affected minors or those who were minors at the time of marriage, whom the framework seeks to protect ([…]).

In any case, there are doubts as to whether a legal framework requiring a case-by-case assessment on the basis of an abstract and general criterion is equally suitable for achieving the legislative purpose as the direct statutory invalidation in Art. 13(3) no. 1 of the Act. The success of a case-by-case assessment of the need for protection hinges on the ability to investigate, in a sufficiently robust manner, the relevant circumstances in administrative or court proceedings. Such proceedings have limitations, in particular when it comes to investigating or ruling out potential inadequacies regarding self-determination at the time the marriage was concluded abroad and the existence of an objective risk to the affected underage partner at that time. Given the situation in a not inconsiderable number of states of origin, it will hardly be possible to reliably investigate whether a marriage involving under-16-year-olds was based on a self-determined decision ([…]). The circumstances of a marriage and the consequences of marital cohabitation for the affected minor before they enter Germany can often only be examined on the basis of the statements given by the minor and by the other spouse. Determining the actual motives of affected persons at the time of marriage will often be particularly difficult ([…]). This calls into question whether a case-by-case assessment as to the need for protection is clearly equally as effective.

This is not altered by the more favourable conditions for a sufficiently reliable investigation of the need for protection of persons who were under 16 years old at the time of marriage that are available once the spouses reside in Germany. An entire range of possible means of obtaining information, in particular the assessment of the experts involved, would be available to determine the current situation of affected persons with regard to their ability to live in a marital relationship in self-determination as well as other circumstances relevant for the protection of minors. But a case-by-case assessment that only looks at the need for protection of affected persons at the time of decision on the validity of their marriage in Germany would not be sufficient to pursue all of the legislative purposes of the referred provision. It would neither give full effect to the interest in banning foreign marriages in Germany in which the autonomous decision of the minors concerned to enter into such marriages is not ensured, nor would it reflect the international goal of eliminating child marriages worldwide in the same way as the referred provision. A framework that would make the invalidity of such marriages in Germany subject to a case-by-case assessment likely will be less suitable for achieving the latter objective. This is because such a framework would suggest that not all of these marriages, possibly not even the majority, are considered harmful to the best interests of the child ([…]).

With regard to the legislative aim of improving the legal clarity of the domestic status of a marriage that was concluded under foreign law involving under 16-year-olds, it is also not clear that a framework involving a case-by-case assessment would be as suitable as statutory invalidation based solely on the criterion of age at the time of marriage.

(cc) Finally, the necessity of the statutory invalidation in Art. 13(3) no. 1 of the Act also cannot be called into question on account of the currently available alternative under Art. 13(3) no. 2 of the Act of the potential annulment of marriages that involve spouses between the ages of 16 and 18 rather than rendering them immediately invalid. Contrary to the view of the referring court and the statements submitted in these proceedings by the German Conference of Family Courts and the Academic Society for Family Law – views that are also frequently expressed in legal scholarship ([…]) –, the legislator may presume that this legal consequence is not as certain to achieve all legislative purposes.

It is true that the interference with Art. 6(1) of the Basic Law that results from an annulment of the marriage which only applies once an annulment decision has been rendered is less severe than invalidation that is effective as of the time of marriage abroad. This is supported by the fact that, pursuant to § 1318 of the Civil Code, an annulled marriage entails certain legal consequences benefitting spouses that merit protection under the law governing the consequences of divorce, in particular post-marital maintenance claims ([…]). However, doubts exist from the outset as to the equal suitability of annulling marriages involving minors as compared to statutory invalidation, because in the case of annulment, the marriage continues to be valid in Germany until a decision is rendered ([…]). The ongoing validity of the marriage, even if temporary, results in a legal situation that is disadvantageous to affected minors – the very situation from which they are supposed to be protected.

Moreover, the limited and inconclusive findings regarding the need for protection of spouses who were minors at the time of marriage do not clearly show that an annulment would be equally suitable for achieving, in all respects, the legislator’s aim of protecting minors. Even though the annulment provision obligates youth welfare offices to file a request for annulment (§ 1316(3) second sentence Civil Code) and only allows courts to decide against annulment in narrowly limited exceptional cases, the number of actual annulments on grounds of the involvement of underage spouses at the time of marriage has remained very low. According to figures published by Terre des femmes, annulment has occurred in 10 out of 813 known cases ([…]). The association presumes that the reasons for this are that marriages involving underage spouses are not identified or reported as such, that counselling centres and authorities are unaware of the procedures available, or that the spouses concerned have reached the age of majority while the process was pending. Regardless of the reasons for the low number of annulments under Art. 13(3) no. 2 of the Act, the provision as it is applied in practice results in a weighting of the criteria with regard to the autonomy of minors, their need for protection and the suitability of annulment as a protective measure that deviates from the fundamental legislative decision. The legislator presumed that spouses married outside of Germany who were under the age of 16 at the time of marriage have a greater need for protection – an assessment that is not objectionable under constitutional law. Based thereon, the low rate of annulments of marriages involving 16 or 17-year-olds provides sufficient grounds for calling the equal effectiveness of this framework into question. Even though the legislator’s margin of appreciation regarding the effectiveness of the legal provision and possible alternatives is narrow in this case, it can be assumed that annulment is not clearly equally as effective for achieving the aim of protecting minors. The number of annulments certainly suggests that the desired worldwide prevention of child marriages cannot be achieved on an equally effective basis through a legal framework that only results in the annulment of such marriages in exceptional cases as compared to statutory invalidation.

dd) The statutory invalidation in Art. 13(3) no. 1 of the Act of affected marriages that have been validly concluded under foreign law is not proportionate in the strict sense. The resulting interference with the freedom of marriage under Art. 6(1) of the Basic Law is inappropriate, due to a failure to address the legal consequences of invalidity, apart from the consequence for legal status, and the lack of any possibility for a marriage entered into when one of the partners was under 16 years old to become valid under German law once both partners reach the age of majority.

(1) In order for a measure to be appropriate, and thus proportionate in the strict sense, the purpose pursued by a measure and its likelihood of achieving that purpose may not be disproportionate to the severity of the interference. It is the task of the legislator to strike a balance between, on the one hand, the extent and severity of the interference with fundamental rights and, on the other hand, the provision’s importance for achieving legitimate aims. The prohibition of excessive measures (Übermaßverbot ) requires that the more severely individual freedom is restricted, the more significant the pursued interests of the common good must be. When assessing whether a measure is appropriate, too, the legislator in principle has a margin of appreciation (cf. BVerfGE 159, 223 <318 f. para. 216 f.>; 159, 355 <413 para. 134 f.>; established case-law).

(2) The referred provision amounts to a significant impairment of the freedom of marriage guaranteed by Art. 6(1) of the Basic Law, since its effect resembles an impediment to marriage in Germany (see para. 140 above). To the extent that affected marriages fall within the scope of protection of Art. 6(1) of the Basic Law, Art. 13(3) no. 1 of the Act interferes with the very existence of such marriages and impedes the right to recognition of marriages validly concluded outside of Germany under German law. This is reinforced by the fact that there is no possibility for a marriage validly concluded under foreign law to become valid under German law once both partners have reached the age of majority. In some cases, this can affect the legal relationship with children born of the union.

(a) For those marriages that fall within the constitutional scope of protection (see para. 122 f. above), the statutory invalidation in Art. 13(3) no. 1 of the Act of a marriage that is validly concluded under foreign law gives rise to an interference of considerable weight, as the structural principles of Art. 6(1) of the Basic Law are affected. Those affected by the law who have already lived together outside of Germany as a married couple and who wish to keep their relationship in this legal form have no means of doing so under German law in the current state of affairs under Art. 13(3) no. 1 of the Act. In assessing the weight of the interference, it should also be considered that the partners in those marriages that do fall within the scope of protection of the freedom of marriage have no possibility of having their marriages that were validly concluded under foreign law become valid under German law on the basis of an informed and autonomous decision once both partners have reached the age of majority. This affects the freedom to marry a person of one’s own choosing, which is guaranteed under Art. 6(1) of the Basic Law. This freedom is a cornerstone of the free autonomous existence of human life that is guaranteed by fundamental rights. Thus, the interference affects central elements of the freedom of marriage protected by Art. 6(1) of the Basic Law. In addition, the right to marital cohabitation for a marriage that was validly concluded under foreign law is ruled out entirely. And yet, if a minor wishes to continue the relationship and wants the marriage to become valid on the basis of an informed and autonomous decision once they have reached the age of majority, this can be an expression of their autonomous will – which assumes increasing significance as the minor becomes older.

The severity of the interference with the status of the marriage itself is reduced to a certain extent by the exceptions set out in Art. 229 § 44(4) of the Act. In particular, in cases covered by no. 2 of that provision, the law takes into account that the spouses in affected marriages lived as a married couple until they reached the age of majority. This likely rests on the legislator’s assessment that the marriage, at least from the point when they have reached the age of majority, is typically based on the autonomous decision of the spouses.

By contrast, the severity of interference is only negligibly reduced insofar as it is possible to conclude a valid marriage in Germany at a later date with the same partner of the marriage concluded abroad and previously declared invalid in Germany. It is left up to the affected persons whether to render their marriage valid in Germany – at least with prospective effect – once they have reached the age of 18. However, for factual and legal reasons, this only gives limited effect to the freedom to marry. Firstly, marrying in Germany in such cases is subject to formal constraints. The certificate of no impediment to marriage, which is required in principle (§ 1309(1) first sentence Civil Code), will usually not be issued by the state of origin, and the waiver that is then required is subject to the strict conditions set out in § 1309(2) of the Civil Code, and in particular its third sentence (see para. 140 above). Secondly, even if the partners were nonetheless able to get married again due to the prior invalidity of the foreign marriage in Germany being considered a “special case” within the meaning of § 1309(2) third sentence of the Civil Code, in substantive terms, claims resulting from the marriage (such as maintenance claims or marital property rights) would generally be based only on the time of (re-)marriage in Germany. This may lead to disadvantages regarding such claims, if and insofar as their amount depends on the duration of the marriage.

(b) The severity of interference is also increased by the fact that the persons affected – insofar as the specific legal consequences are not governed by the law of their home country and the validity of the foreign marriage as a preliminary question to other issues is then resolved on the basis of domestic choice of law rules ([…]) – are precluded from enjoying the advantages associated with the status of marriage. In the context of the partners’ relationship with one another, this interference affects all of the rights and duties that pertain to a marital union in property law and non-property law (such as marital cohabitation, maintenance and inheritance law), including all claims that arise after the end of a marriage. Unlike in the case of a divorce or annulment, when it comes to separation due to the invalidity of a marriage pursuant to Art. 13(3) no. 1 of the Act, there are no specific legal claims that would allow a person to obtain compensation for the arrangements made within the framework of ‘married’ life together – arrangements which are usually made in reliance on the legal validity of the marriage. At most, compensation under § 812 ff. of the Civil Code does not appear to be entirely excluded ([…]). That notwithstanding, there is no specific court proceeding to resolve the financial consequences of a marriage that is invalidated ([…]). Moreover, the persons whose marriages are invalidated are denied all further entitlements associated with the status of marriage. The severity of this interference is not significantly altered by the lone provision addressing the consequences of invalidity, which concerns family asylum ([…]).

The dearth of provisions addressing the consequences of invalidity is especially significant if the persons affected have previously lived together as spouses before moving to Germany and were accustomed to this cohabitation. They often will have, at least until the time of their change of country of residence, relied in good faith upon the assumption that their marriage and the associated legal consequences would be recognised. From the perspective of those concerned, their interest in continuing their marriage is affected, even if, under German conflict of laws rules, there was no point at which the marriage had been considered valid. This interest becomes more pronounced for the persons affected if, after moving to Germany, they have lived together as a married couple and it was only determined years later that the marriage was invalid. The lack of a possibility to continue the marriage as a valid one in Germany on the basis of an informed and autonomous decision after reaching the age of majority also increases the severity of interference. The referred provision is based on the assumption – which is not objectionable under constitutional law – that marriages affected by Art. 13(3) no. 1 of the Act are not based on an informed and autonomous decision, as under-16-year-olds have not yet fully developed the capacity to make such a decision. However, according to § 1303 first sentence of the Civil Code, persons having reached the age of majority have developed the capacity to marry. Even at that point, however, it is still not possible for them to continue a previous marriage that was validly concluded under foreign law as a valid marriage in Germany.

(3) The considerable weight of the interference with the freedom of marriage must be balanced against a significant interest of the common good, namely the protection of minors on a national and international level.

As an important interest of the common good, the protection of minors has its constitutional foundation in the right of children to have the state support and promote their development to become self-reliant persons within society – a right derived from Art. 2(1) in conjunction with Art. 6(2) of the Basic Law. This special responsibility of the state to protect children extends to all aspects of a child’s life that are essential in order for their personality to develop. It is not limited to safeguarding the primary parental responsibility for the development of the child, but also extends to supplemental and supportive duties of the state in areas that are critical to the development of the child’s personality (cf. BVerfGE 159, 355 <381 f. para. 46> with further references).

(b) The legislator could presume that the protection of minors in marriages affected by Art. 13(3) no. 1 of the Act is of great significance. There are robust findings supporting the presumption that those affected by the provision are typically in need of protection, which follows in particular from the adverse effects that child marriages have on development opportunities and the dependencies they create. Early marriage is described as an abrupt and premature transition from childhood to adult life for the affected minors, who are predominantly girls (cf. Parliamentary Assembly of the Council of Europe, Forced Marriage in Europe, Resolution 2233 of 28 June 2018, para. 2); it often means that affected girls are separated from their families and drop out of school ([…]). Early marriage thereby typically leads to restricted opportunities for education and economic development of women, who are mostly affected ([…]). Early marriage increases the likelihood of early, frequent and high-risk pregnancies. Early sexual contact, pregnancy and childbirth in turn pose major health risks for girls and young women ([…]). In light of the above, the protection of minors from early marriage gives effect to both the state duty to protect life and physical integrity following from Art. 2(2) first sentence of the Basic Law (cf. Federal Constitutional Court, Order of the First Senate of 27 April 2022 - 1 BvR 2649/21 -, para. 155 – Proof of vaccination (COVID-19), with further references) and the requirement to eliminate disadvantages for women following from Art. 3(2) second sentence of the Basic Law (cf. BVerfGE 126, 29 <53>; 138, 296 <354 para. 144>; 153, 358 <387 para. 68> − Pension sharing following divorce – external division , each with further references; established case-law).

The urgency of the need to protect minors who are involved in child marriages is expressed in the numerous international agreements that directly or indirectly concern child marriages and their elimination (see para. 128 above). It is underlined by the fact that ending the practice of child marriages worldwide is one of the 17 Sustainable Development Goals (SDGs) that the countries participating in the United Nations Summit on Sustainable Development agreed to achieve by 2030 in September 2015 ([…]). At the EU level, the resolution of the European Parliament of 4 October 2017 on “Ending Child Marriage” (OJ 2018 C 346/66 of 27 September 2018) references the considerable negative effects of child marriage on the rights of children, in particular those of girls affected by the practice.

(c) The legislator’s aim of bringing about legal clarity is likewise of considerable significance. Legal clarity is not just a matter of public policy – as a legislative aim, it is also rooted in the fundamental rights of those affected. Given the many legal consequences associated with marriage, this public policy interest of the legislator is considerable. The interest in preserving the principle of clarity of marital status is of increased significance due to the constitutionally protected interest of the affected spouses to not have permanent uncertainty as to the recognition of their marriage or different assessments made by different bodies applying the law. Permanent uncertainty regarding the recognition or non-recognition of a marriage would constitute a serious interference with the personal life circumstances of those affected ([…]).

(4) Although the legislator pursues important interests of the common good – particularly by protecting minors in marriages affected by Art. 13(3) no. 1 of the Act and by contributing to the global efforts to end such marriages –, the referred provision is inappropriate, and thus not proportionate in the strict sense. This does not result from the fact that the law provides – subject to the exceptions set out in Art. 229 § 44(4) of the Act – for the direct invalidation of all affected marriages in Germany without a case-by-case assessment. The legislator is not precluded, under constitutional or international law, from creating rules concerning the protection of minors and the best interests of the child that do not require a case-by-case assessment (see (a) below). However, the referred provision amounts to an inappropriate impairment of the freedom of marriage of the affected partners in marriages validly concluded under foreign law and falling within the scope of protection of Art. 6(1) of the Basic Law (see para. 122 f. above), given that the legislator – apart from the provision concerning family asylum (cf. § 26(1) second sentence of the Asylum Act) – has not provided for provisions addressing the consequences of the invalidation of such marriages in Germany and has not provided spouses who were minors at the time of marriage with the opportunity to continue the marriage as a valid marriage in Germany after reaching the age of majority (see (b) below).

(a) The fact that the legislator – in enacting a provision first and foremost for the protection of minors – has not provided for a case-by-case assessment and therefore has not provided for the involvement of the individuals affected, does not make the purpose pursued by invalidity in Art. 13(3) no. 1 of the Act disproportionate to the severity of the interference with the fundamental right in Art. 6(1) of the Basic Law. Even without these two elements, the conflicting interests can be appropriately reconciled. In the pursuit of such objectives, neither constitutional law (see (aa) below) nor the requirements of international law (see (bb) below) oblige the legislator to provide for the individual minor’s need for protection to be assessed in a judicial or administrative procedure.

Contrary to the views expressed by the referring court, by several legal scholars, and also made in several statements submitted in these proceedings, such as those from the Land Youth Welfare Offices in Bremen and Lower-Saxony, the German Conference of Family Courts ([…]) and the German Children’s Fund, the Constitution does not oblige the legislator to design legislation for the protection of minors and the best interests of the child in such a way that the specific interests and the specific need for protection must be reviewed in each individual case. Both the protection of minors and the protection of the best interests of the child are founded on the concept of individuality, in that they are based on the assessment that every child is a being with its own human dignity and its own right to develop its personality within the meaning of Art. 1(1) and Art. 2(1) of the Basic Law (cf. BVerfGE 24, 119 <144>). But in practice, this merely means that when reviewing individual measures relating to a specific child – judicial decisions in particular – the best interests of the child may not be determined on a general and abstract basis, but can and must be assessed in relation to the individual child in question (cf. BVerfGE 55, 171 <179>; 64, 180 <190 f.>; established case-law). In the context of such individual measures, the minor’s rights to have their will taken into consideration and to be heard, which follow from the right under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law, also come into play. However, this does not mean that the tools available to the legislator are generally restricted in such a way that would prevent it from enacting provisions with ipso jure effect (cf. BVerfGE 107, 150 <178 f.>). The need to protect minors and ensure respect for the best interests of the child permits the legislator to make generalised assessments when evaluating the need for protection in particular constellations and to use these assessments in designing a legal framework that is not specific to individual cases. This is what the legislator has done when setting out rigid age limits – differentiated according to different age groups – for contractual capacity in §§ 104 ff. of the Civil Code (see para. 134 above). Both Art. 13(3) no. 1 of the Act and § 1303 of the Civil Code, which applies to marriages concluded under German law, are based on a permissible general assessment of the ability, based on age and the degree of development typically associated with that age, to enter into marriage based on self-determination and with awareness of the consequences, and to be able to lead a married life on the basis of equality according to one’s wishes ([…]).

(bb) It also does not follow from the rules of international law that are to be taken into account by the legislator that provisions for the prevention of child marriages, which serve to protect minors and ensure respect for their best interests, always require a case-by-case assessment. Nor are these rules incompatible with a statutory non-recognition of marriages concluded under foreign law that is based on a strict age limit.

In particular, this conclusion cannot be inferred from Art. 3(1) and Art. 12(1) of the UN Convention on the Rights of the Child, regardless of the question of whether this Convention is binding. It does not follow from Art. 3 of the Convention that the legislator must provide for an individualised procedure, in which the circumstances of the individual case are determined and taken into account in the decision, for every action affecting the lives of children. In particular, there is no such obligation with regard to the legal framework governing the recognition of child marriages concluded outside of Germany. It is true that the directly applicable general clause of Art. 3(1) of the UN Convention on the Rights of the Child ([…]) provides that in all state laws or decisions concerning children, the best interests of the child shall be a primary consideration. According to the analysis of the UN Committee on the Rights of the Child (CRC), even a rule of procedure must ensure that whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact of the decision on the child or children concerned (cf. CRC, General comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration [art. 3, para 1], UN Doc. CRC/C/GC/14 of 29 May 2013, paras. 6, 23 f., 32; […]). If the legislator sets a minimum age, this must be appropriate and based on correct assumptions regarding the abilities children generally have at a certain age ([…]).

The requirement of an individual procedure also cannot be inferred from Art. 12 of the Convention on the Rights of the Child. The right to be heard enshrined in Art. 12 of the Convention guarantees – as does Art. 3(1) of the Convention – the right of children and youths to express their views in all matters concerning them, both as the right of an individual child and as that of a group of children or youths affected by a law. The States parties are required to ensure appropriate participation of children and youths in the legislative process (cf. CRC, General comment No. 12 on the right of the child to be heard, UN Doc. CRC/C/GC/12 of 20 July 2009, paras. 9, 12, 73). To what extent this applies to the present case need not be decided here. Art. 12 of the Convention does not restrict the legal means available to the legislator in such a way that would require measures concerning children and youths to be designed from the outset as individual measures rather than abstract and generalised measures.

(b) Nevertheless, the referred provision is not proportionate in the strict sense because, despite the considerable interference with the freedom of marriage arising from Art. 6(1) of the Basic Law, the legislator has failed to address the legal consequences of the invalidation of the marriage and has failed to provide for any legal way in which a minor could seek to have the marriage declared valid after reaching the age of majority.

(aa) When assessing whether the statutory invalidation in Art. 13(3) no. 1 of the Act is reasonable (zumutbar ), it is of considerable importance that its effect resembles an impediment to marriage (see para. 140 above). At least until they have reached the age of majority, those affected by the provision are prevented by law from continuing their partnership as a marriage in Germany. Given the consequence of invalidation, there is also the possibility that the guardian of the underage spouse will separate them from the other spouse, and thus prevent them from living together. However, the few findings available on the practice of the youth welfare offices, which most frequently serve as legal guardians in such situations, suggest that this is only done when a risk to the child’s welfare is found to exist (see. para. 132 above). The Land Youth Welfare Offices in Bremen and Lower-Saxony confirmed this approach in their statements in these proceedings. It also follows from the evaluation carried out in the context of the implementation of the Act to Prevent Child Marriages that spouses generally are not separated if the underage spouse, in practice almost always the wife, does not want a separation. Regardless, even the possibility of separation is burdensome.

This does not in and of itself render the referred provision inappropriate. This is because the legislator’s aim is to insist on the capacity to marry as a prerequisite for making a self-determined decision to enter into marriage in order to protect minors. It is entitled to do so because this is based on factual reasons arising from the nature and form of modern marriage (cf. BVerfGE 36, 146 <163>). It is not inappropriate to completely deny the possibility of marriage to those who have not yet reached the age of majority, even if they have already married under foreign law, in order to guarantee adherence to the structural principle of marriage based on a self-determined decision that forms the basis for Art. 6(1) of the Basic Law, which enables those involved to be equal partners and to assume shared responsibility for their personal and economic life. This applies especially when taking into account the international efforts to eliminate child marriages. The disapprobation of such marriages is expressed more clearly through automatic invalidation than through a case-by-case solution, which could be interpreted as considering child marriages to be legally acceptable under certain circumstances.

(bb) While the protection of minors who have been affected by child marriage is of great importance, it is nonetheless inappropriate for the legislator to have failed to provide for any specific provisions – apart from § 26(1) second sentence of the Asylum Act – that address the consequences of invalidity, given that Art. 13(3) no. 1 of the Act also affects existing marriages validly concluded under foreign law that fall within the scope of protection of Art. 6(1) of the Basic Law (see para. 122 f. above).

Statutory invalidation, which applies retroactively to the time of the marriage, has the effect that the persons affected are only confronted with the invalidity of their marriage in Germany after they have validly concluded their marriage, on the basis of the law of their country of origin, and have lived together as a married couple. There are no provisions for the reversal of any arrangements made during this time or for protection in regard to claims for restitution arising from the new situation ([…]). A reference to the general principles set out in §§ 812 ff. of the Civil Code is not sufficient in this case, as these do not take sufficiently reliable account of mutual protection and entitlements arising from marriage that are otherwise addressed through differentiated rules in the law on the consequences of divorce.

It is particularly disadvantageous for the minors affected by the provision that, according to the prevailing opinion on the applicable law, they have no post-marital claims whatsoever, given the inapplicability of § 1328 of the Civil Code to marriages declared invalid in Germany ([…]). It is true that the concept of post-marital solidarity, which is rooted in and protected by Art. 6(1) of the Basic Law (cf. BVerfGE 118, 45 <69>), does not necessarily require the recognition of post-marital claims such as maintenance or pension sharing claims for spouses whose marriages were invalid from the outset. However, the referred provision also affects marriages concluded outside of Germany that are not incompatible with the structural principles underlying Art. 6(1) of the Basic Law and that therefore fall within its scope of protection for the freedom of marriage (see para. 122 f. above). The lack of provisions for post-marital claims therefore cannot be based on the assertion that the affected marriages did not fall within the scope of protection of Art. 6(1) of the Basic Law.

Socio-economic considerations relating to the protection of minors likewise lead to a conclusion that a statutory invalidation without provisions for post-marital claims is not proportionate to the protection sought. The circumstances and reasons for entering into such a marriage often indicate that the younger spouse is economically dependent on the older spouse. The most commonly cited factors that have an impact on the age at which people enter into marriage are where the person lives, their level of education and the economic status of their family. According to the United Nations Population Fund (UNPFA), girls from poor families living in rural areas with no or a low level of education are most frequently affected by early marriage; they tend to marry at twice the rate of their urban counterparts ([…]) The economic reasons that lead a minor to enter into marriage in their home country may lose significance once they resettle in Germany. However, it is not evident that these reasons typically cease to apply altogether and that minors are no longer in need of protection in socio-economic terms. Even when post-marital claims may not have any value due to the adverse economic situation of both spouses, the failure to provide for such claims in the case of the invalidation of a marriage poses an inappropriate burden on the very minors who are to be protected, especially since there are no other specific provisions addressing the legal consequences (see para. 26 ff. above). As a result, those whose marriage is affected by Art. 13(3) no. 1 of the Act because they were under 16 years old at the time of marriage are in a worse legal position than those falling within the scope of protection of Art. 13(3) no. 2 of the Act [because they were 16 or 17 at the time of marriage], who can make post-marital claims ([…]).

(cc) Art. 13(3) no. 1 of the Act also amounts to inappropriate interference with the freedom of marriage in that it lacks a provision that would permit a person who entered into a marriage as a minor to have the marriage deemed valid in Germany on the basis of a self-determined decision after reaching the age of majority. The only available option of re-marrying the same partner in Germany does not strike an appropriate balance between the legislative aim of the protection of minors on the one hand, and the severity of the interference with Art. 6(1) of the Basic Law on the other. The referred provision’s intended purpose of protecting minors no longer applies once the spouse who was under 16 years old at the time of marriage reaches the age of majority. The purpose of protecting minors can thus no longer justify a provision restricting the freedom of marriage. According to the legislator’s own assessment made in regard to § 1303 first sentence of the Civil Code, persons who have reached the age of majority have developed the capacity to marry. This is reflected in the possibility granted to partners in marriages concluded outside of Germany and declared invalid under Art. 13(3) no. 1 of the Act to re-marry in Germany. However, given the impediments to concluding such a marriage, in light of the requirement to comply with the prerequisites of § 1309 of the Civil Code (see para. 140 above), this possibility is for all practical purposes irrelevant, especially since the legal effects of re-marriage, unlike the possibility of confirming an existing marriage advocated by many scholars ([…]), only applies from the time of re-marriage. This can lead to disadvantages with regard to the amount of potential post-marital claims, to the extent that the amount of such claims depends on the duration of the marriage. Moreover, it will be hard to convey the necessity of re-marriage to some of the persons concerned, given that they are married under the law of their country of origin – possibly for quite some time – and view themselves as married in Germany, too.

The provision’s appropriateness also cannot be based on the potentially ongoing need for protection of the formerly underage spouse. It is true that, according to the evidence available, as set out by, amongst others, Terre des femmes in their statement in these proceedings, it cannot be ruled out that a spouse who was under 16 years old at the time of marriage might still be, even after having reached the age of majority, in a situation, that would affect their ability to make a self-determined decision to continue the marriage. This may be due to the influence exerted by their family, cultural or religious traditions, fear of repayment claims or of loss of social status. However it is designed in the individual details, the legal framework for the confirmation of a marriage concluded abroad that was initially declared invalid in Germany must ensure – so far as it is possible – that the conditions for guaranteeing a self-determined decision to continue the marriage are met. It is, however, inappropriate in any case to continue to rule out a self-determined decision in favour of marriage once those affected have developed the capacity to marry and wish to continue their marriage. This particularly applies to spouses who have been married under foreign law for a considerable amount of time and who then resettle in Germany.

The lack of any possibility of confirmation in any legal form is not appropriate, even when taking into consideration the intended general preventive effect of invalidity and the international prevention of child marriages. It cannot be assumed that the impact of the prohibition of child marriages and their invalidity in the case of persons under 16 years old – and the intended message under international law that such marriages are condemned – would suffer in the case of a possibility of confirmation with requirements that are less strict than in the case of marriage. According to the statement submitted in these proceedings by the Max Planck Institute for Comparative and International Private Law, a significant number of states that consider marriages involving minors to be generally invalid also provide for various possibilities to confirm a marriage or other remedies. In light of this, it is not plausible that a domestic provision that deviates from this practice by not allowing for any possibility of confirmation would lose its general preventive effect.

The aim of bringing about legal clarity also does not merit a different assessment as to the provision’s appropriateness. While the possibility of confirmation may be less well-suited to bring about legal clarity regarding the status of the marriage, it is left to the legislator to design the legal framework in such a way that there is no permanent uncertainty regarding the existence of a marriage and the associated legal consequences. When weighed against the resulting considerable interference with the freedom of marriage, the complete lack of a legal framework is not appropriate to give effect to the interest in legal clarity regarding the status of the marriage.

(5) Art. 13(3) no. 1 of the Act places unreasonable burdens on affected fundamental rights holders, given that no provision was made for the consequences of statutory invalidation, and above all for the possibility – which would be to the advantage of the minors affected – to continue the marriage as a valid marriage in Germany after reaching the age of majority.

II.

Given that the referred provision violates Art. 6(1) of the Basic Law, it is not necessary to decide whether the entire Art. 13(3) no. 1 of the Act or parts thereof have retroactive effects or whether such retroactive effects would be permissible by reason of the lack of legitimate expectations meriting protection on the part of those affected.

D.

The provision reviewed in these proceedings violates Art. 6(1) of the Basic Law, given that it does not specify the consequences of the invalidation of affected marriages. To the extent that the exceptions set out in Art. 229 § 44(4) of the Act do not apply, Art. 13(3) no. 1 of the Act is incompatible with the Basic Law. It continues to apply until the legislator has enacted new provisions, but no longer than 30 June 2024, in accordance with the following:

I.

Pursuant to § 82(1) in conjunction with § 78 first sentence of the Federal Constitutional Court Act, the Federal Constitutional Court will generally declare a law void in judicial review proceedings if it concludes that it is incompatible with the Basic Law. However, in view of § 31(2) second sentence, § 79(1) and § 93c(1) third sentence of the Federal Constitutional Court Act (cf. BVerfGE 127, 293 <333>), the Court may declare an unconstitutional law to be merely incompatible with the Basic Law [rather than void] under certain conditions. This is usually the case where the legislator has different options to remedy a violation of the Constitution (BVerfGE 149, 222 <290 para. 151>; established case-law). A mere declaration of incompatibility can also be considered if the violation of constitutional law does not affect Art. 3(1) of the Basic Law (for a violation of Art. 1(1) in conjunction with Art. 20(1) of the Basic Law, cf. BVerfGE 152, 68 <149 para. 212>). A declaration of incompatibility, combined with an order to temporarily continue the application of the unconstitutional provision, can be issued if the immediate invalidity of the objectionable provision would eliminate the statutory basis for the protection of exceptionally significant public interests or could result in a legal vacuum, and if a balancing of these interests against the affected fundamental rights requires that the interference be tolerated for a transitional period (BVerfGE 141, 143 <180 para. 84> with further references; established case-law). The Court can also issue a mere declaration of incompatibility if a declaration of voidness would lead to a state of affairs that would be more unconstitutional than if the unconstitutional provision were to temporarily continue to apply (cf. BVerfGE 109, 190 <235 f.>; 127, 293 <333>).

II.

1. Both the various possibilities of remedying the violation of constitutional law available to the legislator (see a) below) and the state of affairs that would result from declaring Art. 13(3) no. 1 of the Act void (see b) below) mandate that the Court limit itself to a declaration of incompatibility in this case.

a) The legislator may stand by its decision to deny marriages concluded abroad involving at least one spouse who was under 16 years old at the time of marriage validity in Germany if it remedies the violation of constitutional law. The legislator has various possibilities in which to do so. For instance, the legislator could enact separate provisions for post-marital claims that take into account the previously existing state of marriage and that spouses who were minors at the time of marriage may have a need for financial protection. Such claims can be designed in different ways. The legislator could create separate claims for marriages declared invalid in Germany. It could also make reference to claims applicable to annulled marriages as the law currently stands (cf. Art. 13(3) no. 2 of the Act, § 1318 of the Civil Code). With regard to the lack of a possibility for those married prior to age 16 to continue a marriage once they have reached the age of majority if they wish to do so, the legislator likewise has various possibilities to address the constitutional defect. These may include the elimination of legal obstacles, such as the requirement to furnish a certificate of no impediment to marriage under § 1309 of the Civil Code. According to the statement submitted by the Max Planck Institute for Comparative and International Private Law, many states provide for remedies with regard to invalid marriages involving minors.

b) Unlike a declaration of incompatibility, a declaration of voidness cannot be combined with an order of continued applicability. As such, it would lead to a situation where the legal relationships are left unclarified and which is thus further from a constitutional state of affairs than the current situation. It would lead to the applicability of the law as it previously stood. Given that the unconstitutional provision here directly results in the statutory invalidation of affected foreign marriages in Germany, the principle, set out in § 79(2) first sentence of the Federal Constitutional Court Act, that a declaration of incompatibility or voidness does not affect matters that were already finally adjudicated at the time of the declaration would not apply here. The marriages affected would no longer be invalid, but instead – pursuant to Art. 13(1) of the Act – would usually be valid, since they are in principle measured against the right of the spouses’ country of origin. Such marriages could be denied recognition in the individual case, under the ordre public reservation (Art. 6 of the Act), and they could then be annulled. However, it cannot be ruled out that (at least) one of the spouses affected by Art. 13(3) no. 1 of the Act has since re-married in Germany as a result of the statutory invalidation of their foreign marriage. This could include spouses who had already reached the age of majority when the marriage was concluded outside of Germany, and thus not those in need of protection as a minor. Given that a declaration of incompatibility of the referred provision applies as of the provision’s entry into force, such second marriage could have been concluded even though the first marriage was still valid. This would amount to bigamy, which is impermissible in Germany and in many other legal orders. Such a bigamous marriage could not readily be dissolved in a manner that sufficiently protects the interest of the spouse who was not yet 16 at the time of conclusion of the first marriage outside of Germany. Dissolution typically takes place by either filing for divorce or annulling the first or the second marriage. Under German law, this second marriage could be annulled under § 1314(1) no. 2 and § 1306 of the Civil Code. An annulment of the second marriage would be particularly ill-suited to give sufficient effect to the interests of the partner who was a minor when the first marriage was concluded if they were the one who married a different partner in the second marriage. Despite the fact that the second marriage would in fact be based on a self-determined decision, its dissolution would be required due to impermissible bigamy, which would interfere with the freedom of marriage of the spouse who was under 16 years old at the time of conclusion of the first marriage and entitled to protection. In order to avoid such consequences, the Court must limit itself to a declaration of incompatibility, combined with an order to temporarily continue the application of the unconstitutional provision and a transitional framework (cf. BVerfGE 125, 175 <259>; 132, 134 <178 f.>; 152, 68 <150 f.>) in order to guarantee the necessary protection of those who were under 16 years old at the time of marriage in foreign marriages that are affected by the unconstitutional provision.

2. The order of continued application is necessary. Otherwise, even a mere declaration of incompatibility would lead to the inapplicability of Art. 13(3) no. 1 of the Act from the time of the provision’s entry into force (cf. BVerfGE 55, 100 <110>; 61, 319 <356>; cf. also BVerfGE 133, 377 <423 para. 107 f.>). This would then be the same state of affairs as the one described for a declaration of voidness. In addition to the order of continued application, a transitional framework is required, which must be limited to avoiding the circumstances that lead to the unconstitutionality or, at a minimum, to mitigating their effects in order to counteract a state of affairs that would be more unconstitutional than if the unconstitutional provision were void and inapplicable.

In light of the foregoing, transitional provisions are only needed regarding the question of maintenance for marriages deemed invalid in Germany. The transitional framework should be aligned as closely as possible with the concept developed by the legislator. Pursuant to § 1318 in conjunction with §§ 1589 ff. of the Civil Code, the legislator provides for post-marital maintenance claims for marriages that can be annulled under Art. 13(3) no. 2 of the Act. In order to mitigate the unconstitutional situation brought about by the lack of such provisions for marriages involving minors affected by Art. 13(3) no. 1 of the Act to the benefit of the spouses who were not yet 16 at the time of marriage, § 1318 of the Civil Code should be applied to such marriages, subject to the condition that the provisions on divorce that are made applicable by this provision shall apply whenever the separation of the spouses is not merely temporary. Insofar as the relevant provisions use the duration of the marriage as a decisive criterion, the applicable period in cases where the spouses affected by Art. 13(3) no. 1 of Act are separated on a not merely temporary basis is the duration of their cohabitation. During the duration of cohabitation, §§ 1360 and 1360a of the Civil Code apply accordingly on a provisional basis to claims for maintenance by the affected persons.

There is no need to enact transitional provisions regarding the recognition of the legal father of children born of affected foreign marriages. Since § 1592 nos. 2 and 3 of the Civil Code are applicable regardless of whether affected couples are married, the possibilities of the biological father to be recognised as the legal father are sufficiently guaranteed for a transitional period.

E.

In accordance with § 4(4) and § 15(3) first sentence of the Federal Constitutional Court Act, this decision was rendered by the First Senate of the Federal Constitutional Court sitting with seven Justices.