Married under Sharia law in their native country, underage refugees pose hard questions for Germany's legal and child welfare systems. German courts are divided.
BERLIN —They are young and have been through a lot. Alia, who is 15 years old, and 21-year-old Amir (not their real names) grew up in the countryside and fled their native Syria together. They faced all sorts of challenges and thought nothing could tear them apart.
But they were separated in August 2015, shortly after arriving in Germany. When they reached their third destination in Bavaria, Germany's child protective services stepped in to care for Alia.
This was not only done because Alia and Amir are first cousins, but also because they have been married under Sharia law since February 2015, when the bride was just 14. The young couple have presented the German legal authorities with a difficult case to examine.
The central question is: What happens to couples who, even under extenuating legal circumstances, are too young to be married by German law? Should their unions be protected, or are young girls being abused in these relationships?
Two courts in the state of Bavaria, the Family Court and Higher Regional Court, dealt with Alia and Amir's case, but came to very different conclusions. That means thee fate of their marriage will likely rest with Germany's Federal Supreme Court in Karlsruhe.
Justice officials throughout Germany's 16 federal states have also examined the subject of underage marriages, as the refugee crisis has made this issue more urgent. North Rhine-Westphalia's Minister of Justice, Thomas Kutschaty, said that "in the context of the refugee crisis, it can be noted that the number of married, underage girls, from Syria or other countries, has increased." These married underage refugees accompany their often significantly older husbands or are supposed to join them abroad to start a family.
The Jugendamt, Germany's Child Protective Services, separated Alia from her husband on Sep. 10, 2015, and transferred her to a refugee camp for unaccompanied underage refugees, in the process also becoming her legal guardian. Alia's husband Amir complained at the Family Court and in protest of the forced separation, the couple refused to take part in integration courses.
The courts struggled to determine whether Alia should be considered a girl or a (married) woman. Child services were particularly keen on protecting Alia's constitutional rights: Representatives argued that Alia was too young to be legally responsible for her own life and to be aware of the far-reaching consequences of her marriage, which in turn justified determining her place of residence and how much contact she could have with her husband. Child services employees further asserted that Alia seemed younger than her stated 15 years and Amir older than his stated 21 years of age.
This particular point led to the agency's recommendation that Alia see her husband for only a restricted amount of time, and always in the presence of a third party. Representatives voiced fears that if the two were to meet alone, they might have unprotected intercourse and Alia might get pregnant. Thus they spoke to the couple about appropriate contraception.
Scales of justice, Frankfurt — Photo: Blogtrepreneur
The Family Court decided that local German laws regarding the age of consent should be applied, rather than laws stipulating the protection of marriage, seeing as this marriage had come into being under Sharia law.
The Higher Regional Court, however, reversed this judgment on May 15, 2016, and Alia was allowed to move in with her husband. Prior to its ruling, the Higher Regional Court had ordered an investigation and received confirmation from the German Embassy in Lebanon that Alia and Amir had been lawfully married in Syria. An extract arrived from the Syrian registry of births, marriages and deaths to confirm that the wedding took place within the Sharia Court of Law.
Since the marriage was legal, the German judges ruled that the child welfare agency was not allowed to determine Alia's place of residence or to separate her from her husband. It is, however, highly likely that child protective services will lodge an appeal against the ruling, said Adam Mantel, head of the Jugendamt in Aschaffenburg. If that happens, then the Federal Supreme Court will get involved.
It is unclear how many cases of underage refugee marriages there are in Germany, but non-governmental organizations such as UNICEF and Terre des Femmes are warning that they pose a new danger to young girls. According to SOS Kinderdörfer, "the number of child marriages is increasing, especially among young girls from Syria." Before the start of the war there, only in 13% of marriages was either one or both spouse under 18 years old, but that figure has since risen to 51%. Forced marriages are most notably on the rise in refugee camps in Lebanon, Iraq and Turkey.
But Bavaria's Higher Regional Court could not detect any signs of a forced marriage in Alia and Amir's case, seeing instead that they had survived the perils of their journey as a duo and wanted to live together again, as they had done before. Evidently "marital intercourse" had already taken place.
Still, according to Bavaria's Minster for Justice, Winfried Bausback, the Higher Regional Court's ruling was to imprecise as to whether or not Alia and Amir's marriage violates prevailing values and practices, the so-called ordre public, and so this difficult case will be settled at a higher level.
So no matter what the final ruling, Alia and Amir's case is almost sure to set a legal precedent.