Child marriages

CHILD MARRIAGE has been in the news of late and it is a worrying problem.

Child marriage is often associated with early and frequent pregnancies, which in turn are associated with higher rates of maternal and infant mortality.

It also interferes with girls’ development as they may drop out of school, and struggle to participate in economic, political and social activities.

Child marriage may also increase the risk of domestic violence, because of power imbalances or social isolation.

The Child Care and Protection Act forbids child marriages by making it a crime to give a child out in marriage or engagement if the child is below 18 years.

This prohibition applies to civil, customary and religious marriages. This crime is punishable by a fine of up to N$50 000 or imprisonment for up to 10 years, or both. The problem is that not all such crimes are reported.

Civil marriages are governed by the Marriage Act 25 of 1961. At the time of independence, that law prohibited civil marriage by boys under 18 or by girls under 15 years, unless they had permission from an appropriate government official or a court. Since the age of majority was 21 then, children under 21 also needed permission to marry.

This law was amended by the Married Persons Equality Act 1 of 1996.

The law set the minimum age for civil marriages at 18 years for both boys and girls, unless they had ministerial or court permission to marry younger.

Parental permission was also still required for children below 21. The law was adjusted again by the Child Care and Protection Act 3 of 2015, which set the minimum age for marriage at 18 for both civil and customary marriages.

Now the law is about to change again. The ministry of home affairs will soon table a new marriage bill in parliament to make it law that no under 18 person may enter a civil marriage. This law is also expected to amend the Child Care and Protection Act to apply to customary marriages. For any kind of marriage, the requirement of parental consent for all persons below 21 will remain.

The removal of marriage by children under 18 will bring Namibia in line with the African Charter on the Rights and Welfare of the Child, which requires that states set the minimum age of marriage at 18 years.

What happens if a child marriage takes place despite the legal rules forbidding it? At present, the marriage would be void if one or both parties are under 18 and did not have government consent for it.

In such cases, the marriage never legally existed – even if the problem is discovered only after one of the parties to the marriage has died. However, either spouse, or anyone else with an interest in the marriage may, if they wish, ask the High Court to make an order confirming that the marriage is void.

If one or both of the parties entered into the marriage in good faith, the court has the power to make adjustments to prevent hardship or unfairness, such as making an order about how to separate the couple’s property.

But the court does not have the power to make a void marriage into a valid marriage. A marriage is voidable if one or both parties are under 21 and did not have the required parental consent for the marriage. In this case, either the underage party or that party’s parent or guardian could approach the High Court to ask that the marriage be declared void if it is in the best interests of the underage spouse or spouses.

If the marriage is annulled, the consequences would be similar to those of a divorce. There are special rules about children born of a void or a voidable marriage. The key issue is protecting the best interests of the child, no matter the situation.

One positive bit of news is that child marriages in Namibia appear to be in decline.

In fact, Namibia has a low rate of child marriage that it is hoped we can eliminate this problem and give young boys and girls a fair chance to develop and mature before marriage and raising children of their own. Every child must have a chance to achieve his or her full potential.

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