What is the penalty for forcing a minor into an early marriage? – Important clarifications from a lawyer
The legal age of marriage in Azerbaijan is 18, and the legislation provides for serious liability to prevent early marriages. But is tightening the law enough to solve the problem? Secret religious marriages, family pressure, difficulties in providing evidence, and keeping girls out of education remain the main problems in preventing early marriages. At what point does a “family matter” turn into a legal violation? If a minor is forced into marriage, what responsibility awaits their parents and other participants? What legal risks do relationships established without an official marriage create for women and children? Rajab Nuraliyev, a member of the Bar Association of the Republic of Azerbaijan, answered these questions and explained the legal mechanisms and main practical problems related to early marriage.
– Does Azerbaijani legislation provide sufficient legal mechanisms to prevent early marriages? What gaps do you see?
– As is known, the legislation of the Republic of Azerbaijan, more specifically Article 10.1 of the Family Code, sets the marriage age at 18. It is important to note that with the amendment dated November 5, 2011, the words “18 years for men, 17 years for women” previously provided as the marriage age were replaced with “18 years”, and the previously existing exception (In case of valid reasons, the relevant executive authority of the area where persons wishing to marry and who have not reached the marriage age reside may, at their request, allow the marriage age to be reduced by no more than 1 year) was removed from the legislation, and the marriage age for both genders was strictly set at 18.
In general, the legal regulation regarding the prevention of early marriages and unofficial religious marriages (kebin) is quite satisfactory, and the approach of the legislation in this direction is positive. The abolition of the exception that allowed the marriage age to be lowered to 17 should be considered a positive step in preventing early marriages and strengthening the legal framework. We believe there are some gaps in this direction. For example, the concealment of administrative kebin. Although administrative liability is established for religious figures who perform kebin without official registration (Code of Administrative Offenses: Article 189-3. Religious marriage ceremony regarding minors), these ceremonies are often held in secret. Another issue is related to medical examinations and the notification mechanism of institutions. The mechanism for medical institutions to immediately inform law enforcement agencies during a minor’s pregnancy does not always work flexibly in practice.
– What are the most common legal problems encountered when dealing with cases related to early marriage in practice?
– The difficulty of proving is one of the most common legal problems in practice. For example, it is complex to prove the fact of “coercion” within the family; furthermore, the parties often change their statements, claiming that the relationship was “voluntary”. Here, those national mental values come to the fore, where informing about parents who have agreed to an early kebin is morally difficult for the teenager and leads to serious condemnation among relatives. The refusal of witnesses to testify or report due to kinship ties is also a very common problem. Furthermore, early marriages entered into by parties despite loving each other due to the fear that their parents will marry them off to someone else also belong to those problems, etc.
– What legal risks do religious or customary marriage ceremonies held without an official marriage create? How are the rights of children and women protected in such relationships?
– First of all, it should be noted that in the absence of an official marriage, husband-wife relationships do not arise between the parties from a legal perspective, and the existence of such relationships, as well as the consequences arising from them, require additional court evidence. For example, the rights of children born without an official marriage regarding alimony, inheritance, etc., arise only after the fact of paternity is established in court. It is true that while the voluntary recognition of paternity when obtaining a birth certificate for a child at registry offices creates a right to alimony for the child, court decisions are required for the other issues we mentioned. Persons not in an official marriage, and therefore women as well, do not have a share in property acquired during a de facto marriage, nor do they have inheritance rights. The property belongs only to the person whose ownership right is registered in their name. Furthermore, women do not have the right to claim alimony for themselves until the child is 3 years old. In addition, women without an official marriage are deprived of the right to receive a pension for the loss of a breadwinner after the death of their husbands, etc.
– What steps should a teenager forced into an early marriage or their relatives take first from a legal perspective?
– The first steps to be taken by a teenager forced into an early marriage, their close relatives, or any person aware of this should be to contact the hotlines of the relevant state agencies. For example, one can call the 102 service of the Ministry of Internal Affairs or the 860 Hotline of the State Committee for Family, Women and Children Affairs. In addition, one can apply to the guardianship and trusteeship body operating in the local executive authority. Furthermore, one can inform the management or psychologist (if any) of the institution where they are studying. Also, a person who has been subjected to domestic violence in the form of being forced into an early marriage can apply to local executive authorities to obtain a short-term protection order. It should also be taken into account that civil legislation recognizes the right of the victim to apply to the court for the issuance of a long-term protection order if the person who committed acts related to domestic violence does not comply with the warning given and the requirements of the short-term protection order.
– What responsibility does the legislation provide when parents or other persons force a minor into an early marriage?
– For such cases, Article 176-1 (Forcing into marriage or early marriage) of the Criminal Code of the Republic of Azerbaijan, as well as Article 176-2 (Organization of early marriage of a person under sixteen years of age) provides for criminal punishment in the form of imprisonment in addition to fines. In this case, criminal legislation defines “early marriage” as a union created for the purpose of establishing a family without concluding a marriage with a person who has not reached adulthood, i.e., 18 years of age. In addition, religious figures who perform a religious marriage (kebin) without an official marriage document, as we mentioned above, bear administrative liability (fines) according to Article 189-3 of the Code of Administrative Offenses.
– Sometimes families think that “this is our family matter”. From a legal perspective, at what point does an early marriage turn into a legal violation that the state must intervene in?
– Unfortunately, very few people in the public think that early marriage is not an internal family affair, but a violation of human rights and children’s rights. Since the majority think it is purely their own internal family matter, they neither try to influence such families nor accept such influence from outside. Nevertheless, in any case, when a signal (information) is received about the engagement or forced marriage of a minor, or when a case of a person being kept out of compulsory education (11 years) is discovered, state intervention becomes mandatory from the moment a threat is posed to the minor’s sexual integrity or physical and psychological health, and it should be so.
– What difficulties do victims of early marriage face most when they later want to restore their rights?
– We believe that victims of early marriage later face a wide variety of difficulties, moral problems, financial hardships, and public condemnation. Such traditional difficulties include economic dependence due to their education being cut short, fear of being subjected to pressure by the family and society, not knowing how to restore their rights, how to establish paternity, or how to claim property, and the lack of self-confidence brought about by years of domestic violence.
– Is the exchange of information between schools, social services, and law enforcement agencies effective enough in preventing early marriages?
– We believe that there are monitoring mechanisms between schools, social services, and the police, and this is expanding and developing further due to technological progress. However, as everywhere, effectiveness in this area depends on the human factor and coordination. For example, there is a mechanism for informing the police and the executive authority about students who do not attend classes for a long time in schools. However, I think the main shortcoming in this area is the insufficient number of social workers on the ground, especially at the regional level, and the attempt to resolve the issue through “informal reconciliation” among the population.
– Will tightening the laws solve the problem, or is the main issue their implementation and strengthening legal awareness?
– I am sure that, as in other relationships, tightening laws does not fully solve the problem in matters related to early marriages. Because the severity of any punishment cannot eliminate the existence of that problem. I think that the main factor for the elimination of the problem should be the desire of the public and the support and solidarity shown voluntarily to prevent its occurrence. Along with this, I can suggest the following as preventive measures to minimize early marriages and prevent such cases from occurring:
– The principle of inevitability, that is, the implementation of existing legislative norms, especially the relevant articles of the Criminal Code, without exception, and the publicizing of this implementation.
– Awareness and economic support: Engaging girls in education in the regions, vocational training, and conducting legal awareness work with parents.
– Fear of punishment and public condemnation: Transparently communicating legal measures taken against religious figures who perform religious marriages and parents participating in the process to the public.
Müsahibə QHT-lərə Dövlət Dəstəyi Agentliyinin dəstəyi ilə “Vətəndaş” Tədqiqat və İnkişaf İctimai Birliyi tərəfindən həyata keçirilən “Əvvəl bilik, sonra birlik” layihəsi çərçivəsində hazırlanıb.