Background

Across the world, being young and female can be a potential source of intersectional discrimination, placing girls and adolescents at a high risk of gender-based violence, particularly child marriage, rape, sexual exploitation, abduction, and trafficking.  

Data reveals that globally, about one in six adolescent girls (aged 15 to 19) are currently married or in a union. The practice is a product of both social norms and state sanction: in over 50 countries across different regions, the minimum legal age of marriage is lower for women than men and 93 countries legally allow girls to be married off before the age of 18 years with parental consent or judicial authorization. Girls who find themselves in such unions are exposed to discriminatory personal status laws which deny them reproductive autonomy, inheritance, maintenance, and future social, economic, and political opportunities. In several of these countries, the age at which girls can vote tends to be higher than the age at which they can legally marry, creating the need to ensure that the law is not used as a vehicle for sustaining the practice of child marriage.

In the past five years, the General Assembly and Human Rights Council have issued annual resolutions on child, early and forced marriage, with a call to States to fix the statutory minimum age of marriage at 18 years without exceptions. These developments are taking place at a time when over 2.5 billion women and girls around the world are being affected by discriminatory laws and the lack of legal protection, often in multiple ways. The spaces in which laws have been designed, implemented, or even studied as a profession have historically excluded women and girls. As a result, their voices and perspectives continue to be largely absent from laws and legal practices.

While law reform forms only one component of the several ingredients that are essential for the elimination of child marriage, it remains a critical element. In recent years, reforms in minimum age of marriage provisions have been growing across many jurisdictions. These growing reforms, present opportunities for cross-country learning, for the benefit of countries which are taking steps to revise their standards in line the above resolutions. Such a learning process can be facilitated through research which explores “the how” of reforms as well as “the who” behind such processes, emphasizing entry points, opportunities and lessons learned. Such a study also presents an opportunity for revisiting global norms and standards which fall short of protecting girls from early marriage.

Context and justification

Equality in law is crucial to the achievement of gender equality, as women and girls look to the laws of their State to protect, fulfil, and enforce their rights. Laws that discriminate and deny them equal rights with men and boys betray their trust in society and signal that gender discrimination is acceptable, normal, and expected. Women and girls who are left behind as a consequence of laws which discriminate against them are often permanently excluded from the benefits of development. Conversely, the design and implementation of good laws that conform to the human rights principles of equality and non-discrimination can help sustain society’s efforts at moving towards justice, peace and inclusion.

The minimum statutory age of marriage is recognized as the age at which the law permits a person to marry and is to be distinguished from minimum age requirements under religious or customary laws unless these are codified in law. Some countries set their minimum age of marriage below 18 years, while others have opted for 18 years with authorized exceptions. A substantial number of countries also apply different minimum age of marriage standards for women and men. Such differential standards fuel child marriage, especially in contexts where social norms play a significant role in sustaining the practice. In 2020 alone, an estimated 20 per cent of women aged between 20 and 24 years globally, were married before 18 years of age.[1]

The first challenge with regards to addressing child marriage globally stems from the tensions that have historically emerged across international standards and norms. Beginning with the United Nations General Assembly Resolution 2018 (XX) of 1 November 1965 concerning the Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages which stipulates that ‘the minimum age for marriage shall under no circumstances be less than 15 years.” While the Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages urges Member States to take legislative action to establish a minimum age of marriage, it does not explicitly mention 18 years as the minimum age for marriage and permits exceptions.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) clearly prohibits child marriage under article 16 (2) providing that “the betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.” The absence of a stipulated minimum age of marriage in the Convention leaves a critical legal gap. While acknowledging that child marriage is a form of forced marriage, the 2014 Joint General Recommendation No. 31 of the Committee on the Elimination of Discrimination against Women/general comment No. 18 of the Committee on the Rights of the Child on harmful practices suggests that “As a matter of respecting the child’s evolving capacities and autonomy in making decisions that affect her or his life, a marriage of a mature, capable child below 18 years of age may be allowed in exceptional circumstances, provided that the child is at least 16 years of age and that such decisions are made by a judge based on legitimate exceptional grounds defined by law and on the evidence of maturity, without deference to culture and tradition.”

Despite this stance, the CRC Committee[2] and CEDAW Committee have consistently recommended 18 years as the minimum marriageable age for both men and women in their concluding observations and recommendations to State Parties to their respective conventions.[3]

In more recent times, GA Resolution A/C.3/73/L.22/Rev.1 has called for “States to enact, enforce and uphold laws concerning a minimum age of marriage, to monitor their application and to progressively amend laws with lower minimum ages of marriage and/or ages of majority to 18 years and engage all relevant authorities to ensure that these laws are well known”.

Important developments have also taken place at regional level where the African Union, has expressly stipulated 18 years as the minimum age of marriage in all African countries through its African Charter on the Rights and Welfare of the Child and the Protocol to the African Charter on the Rights of Women in Africa (the Maputo Protocol) and where to date, 16 countries in Africa have fixed their age of marriage at 18 years without exceptions. Furthermore, the Kathmandu Call for Action to End Child Marriage in South Asia was unanimously adopted by South Asian Association for Regional Cooperation in 2014 with a call on governments to commit to ending child marriage through legal reforms and support for a regional action plan, stipulating 18 years as the minimum age of marriage.

[1] See: https://data.unicef.org/topic/child-protection/child-marriage/

[2] https://www.girlsnotbrides.org/child-marriage-law/#how-useful-are-international-and-regional-standards-on-minimum-age-of-marriage-in-protecting-children-from-child-marriage

[3] UN Committee on the Elimination of Discrimination against Women, ‘General Comment No 21: Equality in Marriage and Family Relations’ (1994) UN-Doc A/39/38, para 36.

Duties and Responsibilities

Purpose and Objectives

The study serves as a frame of reference for two areas of change, namely (1) legal reforms at national level; (2) dialogue with relevant Treaty Bodies with the aim of a potential review of internal norms and standards in the light of those emerging from General Assembly and Human Rights Council resolutions on child/early marriage.

The study will specifically:

1. Outline international and regional norms and standards which directly and indirectly impact on minimum age of marriage agenda setting;
2. Present a mapping of the statutory minimum age of marriage across the globe (including annexing such data to the report);
3. Identify promising practices, challenges and lessons associated with reform efforts, based on experiences in undertaking legislative reforms in other countries;
4. Provide an analysis of key players and stakeholders in legal reforms and strategies adopted;
5. Propose policy recommendations for accelerating change in countries where legal reforms are pending or are yet to be initiated.

Scope and Methodology

The study will focus on 10 countries where reforms in statutory minimum age of marriage have successfully been executed. These countries will consist of a sample of countries from different regions, using UN Women’s geographical areas of operation (Africa; Americas and the Caribbean; Arab States and North Africa; Asia and the Pacific and Europe and Central Asia) as frames of reference. Study countries will also reflect a representative sample of monolithic and plural legal systems; religious and cultural settings; political systems, including monarchies, federal systems, decentralized systems; variations of punishment regimes (criminal, civil or both); comprehensive complementary legal and policy interventions which address risk factors for child marriage (e.g. age of consent to sex, child rights or girl child-centered/gender policies which promote educational enrolment, retention and completion; those which address teenage pregnancy, child labour etc.); and responsive justice systems.    

As mentioned above, the study will also undertake a stakeholder analysis to determine the actors who have been involved in the reform process and will furthermore highlight the various opportunities and entry points which have been used e.g. family laws or child rights legislation and which trajectories have proven to be more successful or less successful and why. In terms of approach, the study will combine both qualitative and quantitative methods of data collection, including desk reviews of existing literature, focus group discussions and in-depth interviews.

Deliverables

Under the guidance of a reference group led by Rule of Law Unit within the Leadership and Governance Section of UN Women. The consultant will deliver the following products:  

1. An incept report and workplan which includes a comprehensive bibliography and interview schedule;
2. Research instruments: questionnaires, conceptual framework, and methodology to be used for the study;
3. A comprehensive desk/literature review, including tracking of advances and retrogression in human rights norms and standards;
4. First draft of the report;
5. Facilitation of a consultative meeting;
6. Second draft of the report;  
7. Final report with feedback incorporated.

Competencies

Required Skills and Experience