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by WorldTribune Staff, December 26, 2018

Germany’s highest court of civil and criminal jurisdiction has ruled that a law banning child marriages may be unconstitutional.

The Federal Court of Justice this month ruled that a law passed last year raising the marriage age from 16 to 18 may violate a number of articles in the Basic Law (the equivalent of German’s constitution) – namely: Article 1 regarding human dignity, Article 2 regarding the free development of personality, Article 3 regarding equal protection and Article 6 regarding protection of marriage and family.

The ruling stems from a case involving a Syrian couple – a 14-year-old Syrian girl married to her 21-year-old cousin – who arrived in Germany in August 2015.

The child marriage law passed by German parliament on June 1, 2017 nullified all existing marriages where a participant was under the age of 16 at the time of the ceremony. That includes all marriages contracted abroad.

The Federal Court of Justice’s ruling, “which effectively opens the door to legalizing Sharia-based child marriages in Germany, is one of a growing number of instances in which German courts are – wittingly or unwittingly – promoting the establishment of a parallel Islamic legal system in the country,” Soeren Kern wrote in a report for the Gatestone Institute.

The Federal Court of Justice deferred to the Federal Constitutional Court to determine whether the ban on child marriages was legal and whether the issue should be decided on a case-by-case basis.

“By insisting that the legitimacy of child marriages be examined on a case-by-case basis, the court has opened the door to so-called cultural exceptions, namely those enshrined in Sharia law, which does not set any age limit to marriage,” Kern wrote.

Kern also pointed out that the court ruling ignored a basic principle in Germany’s civil law code which states: “A legal standard of another State shall not be applied where its application results in an outcome which is manifestly incompatible with the essential principles of German law. In particular, it is not applicable if the application is incompatible with fundamental rights.”

Winfried Bausback, a Bavarian lawmaker who helped draft the law against child marriage, was outraged by the court’s decision:

“Because of our Constitution and for the benefit of the child, in the present case, there should be only one answer: This marriage must be null and void right from the beginning,” Bausback said. “Germany cannot on the one hand be against child marriages internationally, and on the other hand be for such marriages in our own country. The best interests of the child cannot be compromised in this case. (…) This is about the constitutionally established protection of children and minors.”

The Clarion Project notes that “This is not the first time Germany has considered (and ruled by) Sharia law over German law. Dating back to the year 2000, a number of cases involving marriage, divorce, inheritance and polygamy have been adjudicated according to sharia law by German courts. Other rulings have made exceptions to German law for Muslims.”

Some examples include:

• In August 2000, a court in Kassel ordered a widow to split her late Moroccan husband’s pension with another woman to whom the man was simultaneously married. Although polygamy is illegal in Germany, the judge ruled that the two wives must share the pension, in accordance with Moroccan law.
• In March 2004, a court in Koblenz granted the second wife of an Iraqi living in Germany the right to remain permanently in the country. The court ruled that after five years in a polygamous marriage in Germany, it would be unfair to expect her to return to Iraq.
• In March 2007, a judge in Frankfurt cited the Koran in a divorce case involving a German-Moroccan woman who had been repeatedly beaten by her Moroccan husband. Although police ordered the man to stay away from his estranged wife, he continued to abuse her and at one point threatened to kill her. Judge Christa Datz-Winter refused to grant the divorce. She quoted Sura 4, Verse 34 of the Koran, which justifies “both the husband’s right to use corporal punishment against a disobedient wife and the establishment of the husband’s superiority over the wife.” The judge was eventually removed from the case.
• In December 2008, a court in Düsseldorf ordered a Turkish man to pay a $32,000 dower to his former daughter-in-law, in accordance with Sharia law.
• In October 2010, a court in Cologne ruled that an Iranian man must pay his ex-wife a dower of $171,000, the current equivalent value of 600 gold coins, in accordance with the original Sharia marriage contract.
• In December 2010, a court in Munich ruled that a German widow was entitled to only one-quarter of the estate left by her late husband, who was born in Iran. The court awarded the other three-quarters of the inheritance to the man’s relatives in Teheran in accordance with Sharia law.
• In November 2011, a court in Siegburg allowed an Iranian couple to be divorced twice, first by a German judge according to German law, and then by an Iranian cleric according to Sharia law. The director of the Siegburg District Court, Birgit Niepmann, said the Sharia ceremony “was a service of the court.”
• In July 2012, a court in Hamm ordered an Iranian man to pay his estranged wife a dower as part of a divorce settlement. The case involved a couple who married according to Sharia law in Iran, migrated to Germany and later separated. As part of the original marriage agreement, the husband promised to pay his wife a dower of 800 gold coins payable upon demand. The court ordered the husband to pay the woman $225,000, the current equivalent value of the coins.
• In June 2013, a court in Hamm ruled that anyone who contracts marriage according to Islamic law in a Muslim country and later seeks a divorce in Germany must abide by the original terms established by Sharia law. The landmark ruling effectively legalized the Sharia practice of “triple-talaq,” obtaining a divorce by reciting the phrase “I divorce you” three times.
• In July 2016, a court in Hamm ordered a Lebanese man to pay his estranged wife a dower as part of a divorce settlement. The case involved a couple who married according to Sharia law in Lebanon, migrated to Germany and later separated. As part of the original marriage agreement, the husband promised to pay his wife a dower of $15,000. The German court ordered him to pay her the equivalent amount in euros.

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  Basic Law, child marriage, Federal Court of Justice, German court ruling on child marriage seen enabling parallel Islamic legal system, Sharia law, Winfried Bausback, WorldTribune.com