Should Jersey’s Age for Legal Marriage be increased to 18?
The current consultation, as well as looking at divorce reforms, also is considering this:
https://www.gov.je/news/2018/pages/DivorceReformConsultation.aspx
Age of marriage: The United Nations Committee on the Convention of the Rights of the Child has recommended that Jersey no longer allows 16 and 17 years olds to get married. Consideration needs to be given as to whether the minimum age of marriage should be raised to 18 years.
Discussion
Looking at some close jurisdictions, firstly, I’d like to look at the age of consent for having consensual sex, as it seems that there could be problems if there is a gap between the age of consent and that of marriage.
And the highest are Ireland and Cyprus:
The age of consent in Ireland is 17, in relation to vaginal, oral, or anal sex, and vaginal or anal penetration. This is the joint highest, with Cyprus, age of consent in the European Union
Now let us look at Marriageable Age:
As it is in Jersey, consent is needed for marriage if the child is under 18 years.
This is eminently sensible, and also this allows for situations where a couple may want to get married if one party is pregnant. Forgetting the idea of “shot-gun weddings”, the advent of a child may well prompt a couple to consider more deeply their commitment to one another. To restrict marriage to 18 means that if they wish to do that, they will have to go to the UK or even Guernsey (the “Gretna Green scenario”).
As another matter for consideration, Irish law considers the “capacity to marry”:
“For example, your marriage abroad will not be recognised under Irish law if one or both of you was ordinarily resident in Ireland and one or both of you was aged under 18 at the time of the marriage and did not have a Court Exemption Order.”
To introduce something like this into Jersey law would mean that there would be two classes of citizens – those already married coming to Jersey from the UK who could be under 18, and those living here who would be unable to marry until 18.
The current consultation, as well as looking at divorce reforms, also is considering this:
https://www.gov.je/news/2018/pages/DivorceReformConsultation.aspx
Age of marriage: The United Nations Committee on the Convention of the Rights of the Child has recommended that Jersey no longer allows 16 and 17 years olds to get married. Consideration needs to be given as to whether the minimum age of marriage should be raised to 18 years.
Discussion
Looking at some close jurisdictions, firstly, I’d like to look at the age of consent for having consensual sex, as it seems that there could be problems if there is a gap between the age of consent and that of marriage.
- The age of consent in England and Wales is 16
- The age of consent in Scotland is 16
- The age of consent in Northern Ireland is 16
- The age of consent in the Isle of Man, a Crown Dependency, is 16, last amended in 2006
- The age of consent in the Bailiwick of Guernsey (a Crown Dependency including Alderney, Herm and Sark) is 16
- The age of consent in Jersey is 16
And the highest are Ireland and Cyprus:
The age of consent in Ireland is 17, in relation to vaginal, oral, or anal sex, and vaginal or anal penetration. This is the joint highest, with Cyprus, age of consent in the European Union
Now let us look at Marriageable Age:
- England and Wales: 16 with parental consent or the permission of the court, otherwise under 18
- Scotland: 16, no restrictions
- Northern Ireland: 16 with parental consent (with the court able to give consent in some cases
- Isle of Man, Guernsey – 16 with parental consent or the permission of the court, otherwise under 18
- Ireland, 18, with restrictions on marriage abroad
- Jersey: 16 with parental consent or the permission of the court, otherwise under 18
As it is in Jersey, consent is needed for marriage if the child is under 18 years.
This is eminently sensible, and also this allows for situations where a couple may want to get married if one party is pregnant. Forgetting the idea of “shot-gun weddings”, the advent of a child may well prompt a couple to consider more deeply their commitment to one another. To restrict marriage to 18 means that if they wish to do that, they will have to go to the UK or even Guernsey (the “Gretna Green scenario”).
As another matter for consideration, Irish law considers the “capacity to marry”:
“For example, your marriage abroad will not be recognised under Irish law if one or both of you was ordinarily resident in Ireland and one or both of you was aged under 18 at the time of the marriage and did not have a Court Exemption Order.”
To introduce something like this into Jersey law would mean that there would be two classes of citizens – those already married coming to Jersey from the UK who could be under 18, and those living here who would be unable to marry until 18.
If we did not, then couples could legally marry abroad in the UK and return to Jersey.if they could afford to do so, causing financial inequity in how people could marry.
Generally, as the UK has liberalised its laws – for example with regard to the age of consent of same sex couples, Jersey has tended to follow suit so as not to cause too great a chasm between the two, and also in line with international developments, and also to avoid unexpectedly criminalising people.
There is no indication that I can see that the UK is planning on restricting the capacity to marry, especially with the safeguard of parental consent for children under 18. The matter has been raised recently on the same grounds as Jersey raising age, but this is a private members bill and unlikely to get passed.
As Conservative MP Kevin Forster pointed out:
“It’d be at 16 you could decide legally, if we didn’t change the age of (sexual) consent, the life-changing decision to have children yet you couldn’t actually get married until you were 18. ‘I think that would be a bit of an oddity in our law.”
The rational is to prevent young people being forced into abusive relationships, but does not seem to note that (1) forced marriages without consent are not legal (2) abusive relationships can and do manifest themselves outside of marriage, and there are probably proportionally as many with unmarried couples as married couples.
Part of the concern stems from arranged marriages, but these usually occur outside of the UK in Pakistan etc. As far as I aware, this is not an issue in Jersey.
Australia has an absolute minimum age for marriage of 16 years under the Marriage Act 1961, and even marriage between 16 and 18 can only take place with a court order in ‘‘exceptional and unusual’’ circumstances.
Australian law takes this issue of under-age marriage so seriously that even when a marriage takes place overseas between parties whose home is in the overseas country, where such marriages might otherwise be lawful, the Marriage Act specifies that an under-age marriage will be void for the purposes of Australian law.
The rational is to prevent young people being forced into abusive relationships, but does not seem to note that (1) forced marriages without consent are not legal (2) abusive relationships can and do manifest themselves outside of marriage, and there are probably proportionally as many with unmarried couples as married couples.
Part of the concern stems from arranged marriages, but these usually occur outside of the UK in Pakistan etc. As far as I aware, this is not an issue in Jersey.
The Irish law prevents underage marriage from taking place abroad, just as other jurisdictions do, although I don't know if Jersey does. For example;
Australia has an absolute minimum age for marriage of 16 years under the Marriage Act 1961, and even marriage between 16 and 18 can only take place with a court order in ‘‘exceptional and unusual’’ circumstances.
Australian law takes this issue of under-age marriage so seriously that even when a marriage takes place overseas between parties whose home is in the overseas country, where such marriages might otherwise be lawful, the Marriage Act specifies that an under-age marriage will be void for the purposes of Australian law.
In conclusion, unless the UK changes its rules, I do not see that there are sufficient grounds for changing those in Jersey.
References
https://www.gov.je/news/2018/pages/DivorceReformConsultation.aspx
https://metro.co.uk/2018/09/06/minimum-age-for-marriage-in-uk-should-be-raised-to-18-mp-says-7919107/
https://www.theherald.com.au/story/2078882/opinion-minimum-lawful-age-for-marriage-is-clear/
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