Peer-reviewed article

Legal Progress and Socio-Economic Reflections on Child Marriage in Latin America

Denise Wiedemann · 1 Jan 2021

Abstract

Most Latin American countries have increased the legal age of marriage to 16 or 18 years during the last years. However, the numbers of child marriages in Latin America do not reflect those reforms so far. Some reforms might be too recent. But furthermore, the legal age of marriage is only one factor out of many. The legislative reforms regulate civil marriage leaving informal unions and religious or indigenous marriages unaffected. Thus, the reforms might prevent early civil marriages, but they have not eliminated early informal unions and early religious or indigenous marriages and the socio-economic factors that can promote them. While child marriages1 have declined in the entire world since the 1980s, Latin America2 has not yet witnessed a decreasing trend.3 According to statistics published by the United Nations International Children's Emergency Fund (UNICEF), in Latin America one woman in four aged between 20 and 24 was married before reaching the age of 18 (but after the age of 15). Five per cent of women were married before reaching the age of 15.4 With those numbers, Latin America ranks above the global average5 but below South Asia and the sub-Saharan countries in Africa. The dispersion of child marriages varies considerably between the individual Latin American countries and within the countries. The statistics are led by the Dominican Republic, Nicaragua, and Honduras, with more than 30 per cent of women being married before reaching the age of 18. Brazil is positioned in the middle with 26 per cent.6 Furthermore, child marriages are more common in rural areas than in cities.7 From a legal vantage point, almost all Latin American countries reformed their marriage laws restricting child marriages during the past years. The first part will outline reform tendencies as well as areas where legislation stagnates. As the above numbers show, the legislative reforms have not, so far, reduced child marriages in Latin America. With that in mind, the second part will sketch sociological findings. There are four important reform tendencies (a): the increase in the legal age of marriage, the equalization of the legal age for men and women, the abolition of exemptions, and the reduction of parental influence. At the same time, the legal framework on the consequences for non-compliance with age requirements stagnates (b). First of all, there is a tendency to increase the legal age of marriage. For the purpose of this article, ‘legal age of marriage’ is to be understood as the age from which people can marry without requiring the permission or exemption from a public authority (e.g. a court). But people who reached the legal age of marriage might still need the consent of their legal representative (e.g. their parents). Many early civil law codifications (e.g. Bolivia,8 Chile,9 Colombia,10 Paraguay,11 Uruguay,12 and some Mexican states13) reflected Canon Law, which allowed marriage for girls from the age of 12 and for boys from the age of 14.14 Other countries required a higher age for marriage in their first civil codes (e.g. Argentina,15 Brazil16) but allowed for judicial exemptions.17 As of today, almost all states have raised the age limit to 16 or 18 years—mostly through legislative amendment, sometimes through constitutional decisions. In Argentina,18 Bolivia,19 Brazil,20 Chile,21 Nicaragua,22 Paraguay,23 Uruguay,24 and Venezuela,25 marriage is considered to be legal upon reaching the age of 16. In Costa Rica,26 Ecuador,27 El Salvador,28 Guatemala,29 Honduras,30 Panama,31 and Peru,32 the legal age of marriage is linked to reaching the age of 18 years. In Mexico, where the civil law rules vary regionally, the federal legislature called on all territories to set the legal age of marriage at 18 years in the General Law on Girls, Boys, and Young People of 2014.33 Subsequently, all territories complied with this order.34 Very recently, also the Dominican Republic raised the legal age of marriage to 18 years.35 Only Cuba and Colombia have lower age limits: Cuba sets an age limit of 14 years for women and 16 years for men.36 Colombia has treated women and men equally ever since a constitutional court decision in 200437; the age limit is 14 years (previously 12 for women and 14 for men).38 In 2019 a proposal to increase the legal age to 18 years without exception failed.39 In the same year, a further proposal was launched.40 The second tendency concerns the distinction between men and women. While early civil law codifications distinguished between men and women, by now, almost all countries have evened the age limits for men and women to achieve equality. Most countries have raised the legal age of marriage for women to bring it into line with the legal age of marriage for men. Brazil, in contrast, reduced the legal age of marriage for men from 18 to 16 years.41 Only Cuba still distinguishes between men and women. As a third tendency, one should emphasize the abolition of the possibility of an exemption from the legal age requirements. Early Latin American civil law codifications often allowed marriage to be contracted before reaching the legal age of marriage with a judicial exemption.42 In Brazil, where an exemption from the legal age of marriage could be granted until recently, the civil code allowed for an exemption in two situations.43 First, the pregnancy of the bride could lead to an exemption.44 Secondly, an exemption could be granted if the minor and the other person who wished to marry had (criminally punishable) sexual contact; marriage or already living together with the offender gave rise to a waiver from punishment.45 In the meantime, Brazil and other Latin American countries have abolished this ground for a waiver from punishment in cases of sexual abuse.46 Sexual relations with minors, who have not reached the age of consent, carry criminal sanctions, regardless of whether a marriage exists or not.47 Furthermore, most countries have eliminated the exemption procedure in recent years.48 Only Argentina,49 Peru,50 and Baja California (state of Mexico)51 have preserved the possibility of an exemption. The granting of the exemption is subject to judicial discretion, although statutory limitations exist. Peru and the Mexican state of Baja California have a minimum age limit for the granting of an exemption; it is 16 years.52 If both minor partners entering into marriage have reached the age of 16, the granting of the exemption is left to the discretion of the court, which must examine whether there are legitimate motives (motivos justificados)53 or serious and justified reasons (causas graves y justificadas)54 for marrying. Argentina has no age limit for the seeking of an exemption. As the legal age of marriage is 16 years in Argentina,55 persons aged 15 or younger may apply for a judicial exemption.56 The court has to take into account the age and maturity of the minor. In particular, courts have to consider whether the minor can evaluate the legal consequences (consecuencias jurídicas) of the marriage and consider the opinion of the legal representatives.57 Argentinean scholarship considers the possibility of an exemption to be conform with international law.58 The fourth and last tendency concerns the role of parents and grandparents. In the 19th century and at the beginning of the 20th century, the consent of the father or of both parents was often required for the substantive validity of the marriage until the age of 21 years, partly because the legal age of marriage was linked to the age of majority.59 In some cases, consent was necessary until the age of 25.60 Furthermore, in the Dominican Republic, formally and respectfully obtaining parental or grandparental advice was a formal requirement for marriage. Until the age of 30 (men) or 25 (women), the couple had to ask for advice three times before they could enter into a marriage not approved by their parents (or grandparents).61 The legal influence of the family was steadily reduced.62 In countries where the legal age of marriage is 16 or earlier, couples require the consent of their parents or other legal representatives only until they reach the age of 18.63 In countries that require an age of 18 years to marry, the legal age of marriage usually coincides with the age of legal majority, so that the consent of legal representatives is not required. Honduras is an exception: There the legal age of majority is not reached until the age of 21; persons who have reached the age of 18, but not yet the age of 21, therefore need the consent of their legal representatives for marriage.64 Obtaining parental or grandparental advice is no longer one of the formal requirements for marriage in any Latin American country. Despite the reforms on the legal age of marriage, the majority of Latin American countries are still quite generous in their treatment of marriages that are contracted in non-compliance with the legal age of marriage. Some legal systems do not ‘punish’ the failure to have reached the legal age with absolute nullity, but only with relative nullity or voidability. Furthermore, nullity (whether absolute or relative nullity) still has to be determined by a court. And breaches of the rules on the legal age of marriage are often curable. Many Latin American countries differentiate between relative and absolute nullity or between voidability (‘anulabilidad’) and nullity (‘nulidad’) in the case of violations of the requirements for marriage, whereby the failure to have attained the legal age of marriage is classified differently. Some legal systems do not ‘punish’ such a shortcoming with absolute nullity, but only with relative nullity or voidability. Where the failure to have reached the legal age of marriage is classified as a reason for relative nullity (or voidability), nullity can usually be claimed only by the parties concerned.65 If such a failure is classified as an (absolute) reason for nullity, anyone who has an interest in the matter can claim nullity.66 In some cases, public officials are also entitled to submit an application.67 In addition, the failure to have reached the legal age of marriage must be taken into account ex officio if the validity of the marriage is raised as a preliminary question in other proceedings.68 A marriage entered into after having reached the legal age but in the absence of the consent of the legal representative often does not even lead to nullity or voidability. Rather, there are sanctions for the spouses.69 In some cases, all ascendants (not only those entitled to give consent) have the right to disinherit the minor and reclaim gifts in the absence of consent.70 In other cases, minors do not gain the power of disposal over their assets in the absence of parental consent,71 or matrimonial property remains separated.72 Nullity (whether absolute or relative nullity) still has to be determined by a court. The unlawful child marriage is not ipso iure void in any of the countries examined. To the contrary, only a judicial determination of the violation of the rules on the legal age of marriage will lead to a dissolution of the marriage.73 Irrespective of the distinction between relative and absolute nullity, a positive declaratory decision on nullity or avoidance usually has retroactive effect (ex tunc).74 There are, however, exceptions for partners and third parties acting in good faith and for the right of descent of children born in marriage. The retroactive rescission does not affect the affiliation of a child to the mother’s husband.75 Most Latin American countries allow for a curing of marriage impediments.76 In some states, reaching the legal age of marriage cures the absence of the legal age at the time of the marriage.77 The full validity of the marriage contracted before reaching the legal age is therefore subject to the condition of reaching the legal age. In Brazil, there is an additional requirement of confirmation by the spouses and legal representatives.78 In Peru, the spouses can even confirm a marriage that has already been dissolved by a court.79 In some Latin American countries, curing occurs regardless of age in cases of pregnancy80 or if the couple has been living together for a certain period of time.81 Some countries combine reaching the legal age with a further condition. Majority cures a child marriage if the spouses have lived together prior to reaching majority without having claimed nullity, or if the wife has become pregnant before reaching the age of majority.82 In some cases, there are time limits for claiming nullity irrespective of age, pregnancy, or cohabitation. These time limits are usually understood as procedural prescription rules; after the time limit has elapsed, no one can initiate a proceeding to declare the nullity of the marriage.83 Finally, the death of one spouse occasionally leads to the loss of the right of action,84 with the consequence that nullity can no longer be claimed in the case of inheritance. It is important to note that UNICEF includes not only formal marriages but also informal unions within the term ‘child marriage’. Informal unions are characterized by the fact that partners live in a common household but are unmarried.85 In Latin America, early informal unions predominate over formal child marriages.86 For example, in Peru, Bolivia, Colombia, and Honduras, more than 80 per cent of the girls aged 15–17 who counted as ‘married’ within the UNICEF-definition lived with a man without being formally married.87 Formal marriage has lost its importance in large parts of the Latin American population, though not everywhere. Furthermore, poverty, lack of educational opportunities), and ethnic affiliation and beliefs may promote early formal marriages or early informal unions. Today, Latin American legislators often acknowledge the instability of marriage. Several countries have introduced the possibility of divorce without the necessity of a reason or prior separation.88 In addition, legislators no longer give marriage a monopoly position for family co-habitation. Non-marital relationships are regulated by law in most countries and offer couples to a great extent the same rights and obligations as marriages in terms of maintenance, inheritance, taxes, and social law.89 In contrast to the legal progressiveness, however, no clear picture of the importance of marriage can be drawn in Latin American societies. In urban, educated and wealthier parts of Latin America, couples live together unmarried, because informal cohabitation is no longer associated with a social stigma. Even in more rural and poorer parts of Latin America, it is to a certain extent a common practice for young women and men to establish a common household without marrying; marriages are considered to be too expensive and cumbersome.90 Thus, marriage as a step towards admission to the circle of adults and independence from parents has largely lost importance, although not everywhere. In some parts of the society, young women and men understand marriage as a form of emancipation from their parents and unmarried adults are still perceived as failures.91 Marriage determines social status, especially that of women.92 The perception of being a woman is associated with being married and being a mother. Girls learn that they obtain in the through marriage and their on marriage and with the that their is to their In large parts of Latin America, sexual relations of marriage are no longer It is by that young women and men will establish a common household without being sexual relationships at a young age prior to marriage are as than per cent of have their first sexual before the age of sexual relations of women do not with the social in some parts of the only marriage is as a framework for and great importance is to for example, for poorer areas in state of and state of in Brazil that of the men who had no If parents out that their is they towards a marriage to the social apply to young they are more The of is on the to young women. The parental to marry early at and The for women is by a for women with a in The to young women is also reflected in the social beliefs the age for marriage. men in the that they because they were more and to men in the Dominican Republic In contrast, young women men as partners because they age with and The by and as well as that of the however, the effect of this by out the of young women. Young women enter into relationships early for the purpose of the parental household in to gain over their and decision their of in the of International and women the that marriage more towards their parents and other social than they had in their family of Furthermore, women marriage to from within their family of that a of women who enter child marriage have in their and women that marriage more than their family of child marriages often the from which the women A of women from the they had as and in their for A Colombia, the Dominican Republic, and Honduras also that woman who married at a young age is more to from Marriage remains the only framework for in some parts of According to a recent by in Brazil, and Honduras, a or pregnancy is one of the reasons for child marriage, whether to the of the young woman and the or to that the of the pregnant woman family The social to which marriage is the only framework for has the effect that a of early in Latin America also leads to a of child And even if there is no such social early are still a reason for early informal Latin America has the second of early out of women gave between the of 15 and only out of women gave at this Early sexual sexual on to some countries from the age of 18 laws sexual are as reasons for the of early in Latin Young women also but consider to be In all Latin American countries, only civil law marriages with a marriage before a state have civil law the state is to in the marriage. marriages do not have the of a civil marriage. And the influence of Canon Law, even a religious marriage legal only after certain However, in indigenous and in the rural population, civil requirements for marriages are often and marriages are to the of the Thus, in where social to marry still reasons of social status, and those are not linked to civil marriage. Rather, or religious marriage is in the of a between child unions and The of child marriages and early unions varies between more and poorer of the While an of 25 per cent of women in Latin America were married or in a before the age of 18, the is only per cent in the most areas but per cent in the In the Dominican Republic, almost a per of the of the of the entered a marriage or an early before the age of 15 in the the is only per According to the the higher of child marriages and early unions in parts of the is linked to the from to is often and marriages or at unions are by parents as the only to for their child a more are considered because they often have a lower than must be married that young women often for a as a out of are to with men the role of family According to one women consider an to be a man who has can and has a However, the of in the family of remains in most The lack of and the social women as and often lead to women not and their does not Rather, women who marry early to on their on the of According to women who were married or in a before reaching the age of 18, per cent have no of or only a 18 per cent or higher Early marriage or early unions and influence other in A lack of educational is the reason for child marriage and one of its A published by UNICEF the lack of in and from the educational as a reason for child marriage in Latin In to an educational the that is more important for boys than for girls also an important for girls is because girls are to that require Girls are to the household and for the boys are to their with their While the lack of educational and a lack of educational girls are the of child marriage, it is also the case that child marriages and early unions the of young couples at As as young women marry or enter a become their of In however, the between child marriage (or early early pregnancy, and is more it often that young women after marriage or the of a there are also cases in which young women to to young men have to to the In some Latin American countries, women who to indigenous or who have marry more often before the age of 18 years than the women from other could be to social and However, in Latin America child marriage and early unions are not an of certain as the all ethnic Rather, the increased of child marriages in certain ethnic should be in with the of in and the more social in rural reforms a in the that the legal systems in Latin America have of child marriage. With the increase in the legal age of marriage, the treatment of women and men and the reduction of parental legislators to child marriage. In most Latin American countries, the legal age of marriage is 16 or 18 years. However, the legal consequences of marriages in violation of the legal age have by in particular, most countries allow for a curing of this The statistics on child marriages and early informal unions do not reflect the reforms so far. factors have the numbers from First, the reforms only have an on civil marriages, however, are not the only framework for early early informal where couples live together unmarried, claim a great because the social importance of marriage has declined parts of Latin America. Furthermore, or religious marriage is more important to indigenous as well as in the rural in indigenous and in rural civil law is often on only and is not in Secondly, the legal treatment of child marriages is only one factor out of many. to marry early sexual relationships and early pregnancy, poverty, lack of and educational and also ethnic affiliation and beliefs can promote early marriages or early informal unions. The increase in the legal age of marriage has not eliminated those socio-economic Thus, sexual the of and educational and especially for young women, are of importance for the