by Katy Macfarlane, Senior Lecturer in Child and Family Law, University of Edinburgh.
The minimum age at which a person can marry in Scotland is 16. This is set out in section 1 of the Marriage (Scotland) Act 1977. The consent of a parent is not required. Is a change to the minimum age in the pipeline? There is growing support in Scotland to increase the minimum age for marriage and civil partnership to age 18. This would bring Scots law in line with the law in England and Wales where the Marriage and Civil Partnership (Minimum Age) Act 2022 came into force in February 2023. It would also comply with the repeated recommendations by the United Nations Committee on the Rights of the Child to increase to the minimum age for marriage to age 18.
Why should the Scottish Government take seriously the increasing calls to set a minimum age of 18 for marriage and civil partnership? To address this question, Part 1 of this blog will look beyond Scotland and the UK and take note of the global trends and future prospects for child marriage.
It’s probably safe to say that, in Scotland, we’re generally opposed to the idea of “child marriage”. We tend to think that child marriage does not happen in the United Kingdom; it happens in countries in South Asia, sub-Saharan Africa, East Asia and the Pacific, and more.
The United Nations Children’s Fund (UNICEF) defines “child marriage” as:
any formal marriage or informal union between a child under the age of 18, and an adult or another child,
If we apply this definition to Scotland, then we may need to reflect upon and reconsider our own legislation because, according to the UNICEF definition, current Scots law facilitates child marriage.
The UNICEF definition of child marriage extends beyond “marriage” to informal unions where the couple lives as if they were married. (The same consequences apply for child cohabitation as for child marriage, but informal relationships – or cohabitation – can make persons even more vulnerable, for example, as a result of inheritance issues, citizenship and social recognition.)
The Global Programme to End Child Marriage was set up in 2016 and is spearheaded by UNICEF and the UNFPA (UN Population Fund (formerly UN Fund for Population Activities) which promotes universal access to sexual and reproductive health.
UNICEF is clear that child marriage (as defined) is a human rights violation. Phrases that are often used in UNICEF literature are “girl child” and “boy child”. One of the 17 UN Sustainable Development Goals is to end the practice of child marriage by 2030 – wherever it happens in the world (and that includes Scotland). Goal 5, target 5.3 sets out to, “Eliminate all harmful practices, such as child, early, and forced marriage, and female genital mutilation”.
At present, globally, child marriages involving a boy child is one sixth of the number of marriages involving a girl child. While both are considered equally egregious, it is clear that girls are affected disproportionately. But, we must not forget that many of the consequences apply equally to boys as to girls.
The very good news is that there has been a significant decline in the global number of child marriages over the last decade – primarily because of the excellent work that has been done in India to prevent child marriage and to increase adolescent awareness, knowledge and empowerment. Because India has been the state with the highest numbers of child marriage, the global decline has undoubtedly resulted from the significant improvements there. There is no room for complacency.
Over the last decade or so, the incidence of child marriage has fallen from 1 in 4 girl children, to 1 in 5 girl children. To give an idea of what that means, 25 million child marriages have been prevented in the last decade. That said, it remains a staggering statistic that approximately 650 million girls and women alive today were married before they were 18 years old, with 22 million child marriages taking place globally in the year 2022. Despite the improvements, South Asian countries still have the highest number of child marriages which amounts to 40% of the global total. It is a concern that the number of child marriages in sub-Saharan Africa is on the rise from 1 in 7 marriages 25 years ago, to the most recent statistic of 1 in 3 marriages.
Based on the current rate of reduction, UNICEF has concluded that “substantial acceleration” is required if the goal of eliminating child marriage, globally, is to be achieved by 2030. That amounts to reducing the numbers 12 times faster than is currently happening.
UNICEF identifies the reasons for the prevalence of girl child marriage as arising from culture, tradition, religion, and poverty (which is a rapidly growing contributory factor). For example, in some conservative Muslim communities, Shari’a law permits girl child marriage to be allowed using the girl’s “maturity” (which is taken to mean when she starts menstruating) as an indicator of when the girl can be married. This is acceptable practice even where there is a legally set minimum age because the law permits exceptions that are based on religious beliefs. In states like Ethiopia, the cultural expectation is that a firstborn child should be born at home. This can have very serious health and medical implications for the child mother as she has little access to medical care and it is likely that her body is still developing and immature. Further, tradition and social norms often place an expectation on the child bride to have children promptly after the marriage.
Selling a girl child, or giving up a girl child for marriage can earn income for her family, and relieve the family of the costs of having the child at home. As well as the financial “benefits”, the parents believe that marriage will secure their daughter’s future and reinforce important relationships between families in the community. In the global states where child marriage is prevalent, the consent of the child is not a consideration and in the vast majority of cases the child will be married against her or his or their will.
Once the child marriage or union has taken place, the consequences for the child can be devastating on many levels and can deprive the child of the opportunity to develop into a healthy, educated, ambitious and happy adult.
Some of the consequences of, especially, girl child marriage, as set out by UNICEF research, are: early age pregnancy, limitation of social life, lack of access to medical treatment, exposure to domestic abuse (including rape – data shows that 81% of girls in child marriages state that their first sexual encounter was non-consensual), isolation from family and friends, mental health problems, no financial autonomy, limited or no access to education or continuing education, a general lack of ability to contribute to society, and no voice and no opportunity to express a view.
The reduction and eventual elimination of child marriage is possible. However, working towards changing a mindset that is entrenched by long-standing principles based on tradition, culture and religion is no easy task. Reducing the global occurrence of child marriage requires much more than disapproval of the practice. Elimination is dependent on progress in many other areas especially in terms of education, employment opportunities, knowledge, empowerment, the setting up of women’s support groups, provision of alternatives, and, of course, poverty reduction.
It is clear that UNICEF and the UNFPA are working hard to achieve the goal to end the global practice of child marriage by 2030. How can Scotland help to achieve this goal? Scots law continues to allow 16 and 17-year olds to marry and to register a civil partnership. Why do we consider this practice acceptable in Scotland while openly criticising the same practice in other global states? Part 2 of this blog will set out why Scotland must follow the example of our neighbours south of the border in increasing the minimum age to 18 for marriage and civil partnership.
 In Scotland, parental responsibilities and parental rights cease to exist on the person’s 16th birthday. But note that the parental responsibility to provide “guidance” continues until the person’s 18th birthday. See sections 1 and 2 of the Children (Scotland) Act 1995.
 Section 1 of the 2022 Act relates to marriage; section 3 relates to civil partnerships. Prior to the 2022 Act coming into force in England and Wales, a young person aged 16 or 17 could marry or register a civil partnership only with the consent of a person with parental responsibility.
 See Katy Macfarlane, Child Marriage: Global trends and future prospects – Part 2 (forthcoming in this blog), footnotes 4 and 5.
 Section 1(1), Marriage (Scotland) Act 1977 states: “No person domiciled in Scotland may marry before he attains the age of 16.”
 UNICEF: Is an end to child marriage within reach? Latest trends and future prospects (2023 update).