Ban on underage marriage needs in-depth study

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By Rafidah Hanim Mokhtar

There have been calls for the government of Pakatan Harapan to carry out law reform to set the minimum age for marriage at 18 years for women and men in all legal frameworks, including for civil, Muslim and native customary law marriages, without exception.

Underage marriages are strongly correlated with poverty and level of education. It happens in any society where there is an imbalance of wealth distribution, and children are the weakest segment and normally, the most victimised.

We support measures to stop forced marriages that are potentially harmful especially to very young brides or grooms, physically or socially. We categorically condemn cases where girls were forced to marry much older men, and instances where young girls were treated as objects or commodities as their families try to escape poverty.

However, a good policy addresses the needs of all segments of societies. It does not aim for one-size-fits-all solutions, especially in an issue as complex as marriages that are deeply related to one’s culture and religion.

In Malaysia, under the Sections 10 and 12 of the Law Reform (Marriage and Divorce) Act, non-Muslims can only be legally married if they are aged at least 18 and will require parental consent for marriage if they are still below 21. Under this law, they are considered minors if they have yet to turn 21 and are not widows.

However, the law provides for an exception, where a girl aged 16 can be legally married if the chief minister or menteri besar of a state, or in the federal territory – the minister, or in diplomatic missions abroad – the Malaysian ambassador, high commissioner or consul respectively, authorises it by granting a licence.

As for Muslims, the minimum legal age for marriage in the states’ Islamic family laws is 18 for a male and 16 for a female. Those below these age-limits can still marry if they get the consent of a shariah judge.

Problem of stateless children

In Sabah and Sarawak, there are customs that allow a girl between 14 and 18 years old to wed with the consent of the family. Many still have problems registering their marriages with the current mechanism, and the children of these young couples often could not be registered as they are considered born from unlawful marriages.

The Muslims are not spared. As in the Peninsular, Muslim couples in Sabah and Sarawak are required to undergo marriage courses by Islamic authority. But due to the size of the states, the relatively poor transportation system and the fact that many are still living in remote areas, even for those who are above the age limit to marry, they find it hard to fulfil the requirement, and thus resulting in their marriages not being lawfully registered. As a consequence, their children also cannot be registered as citizens.

In some cases, as reported to us by NGO members and activists working closely in handling the one-stop-centres for women, there have been cases where three generations in a family go without documentation simply because of the registration process that is still seen as cumbersome as compared to custom marriages.

Increasing the age of marriage will only increase the proportion of those who will fall into this category, and we will have more cases of stateless children. We will have to meticulously investigate this matter before we hastily adopt the blanket ban on underage marriage.

Among the reasons given for complete ban of underage marriages and increase age limit are education and high divorce rates. Several countries are cited as examples, namely Algeria, Bangladesh, Morocco, Egypt and Turkey.

It is therefore wise to objectively assess whether we are really left behind in our educational attainment as compared to these countries. According to the World Economic Forum 2017 ranking, the educational attainment in Malaysia is ranked at no 63, Algeria 84, Morocco 99, Bangladesh 95 and Turkey 92. We are ranked higher than these countries despite not adopting the total ban on underage marriages. Our decision therefore must be based on an objective assessment.

Those urging for a total ban on underage marriages also cite the issue of high divorce rate as a concern. Young marriages without support from families are exposed to high possibility of divorces. In Malaysia, a report by the Shariah Judiciary Department of Malaysia stated that the divorce rate among underage marriages as monitored by authorities was at 0.4% in 2015, which is lower as compared to the national rate. So, are we addressing the issue by proposing for a complete banning of marriages?

Young pregnancies was also advanced as a reason to completely ban underage marriages. It is said that teenage pregnancies have higher risk for complications. However, there should be concrete evidence to link marriages sanctioned by the Shariah Judiciary Department of Malaysia among Muslim teenagers to direct obstetric harmful effects, because the data may be compounded with those of teenage pregnancies out of wedlock.

We should be more concerned about teenagers or children who have engaged in sexual relationships out of wedlock. Several studies have addressed this. In fact, one local study by S Sulaiman et al in 2012 that compared obstetric outcomes of teenage pregnancies and adult pregnancies concluded that “the long-held beliefs about the risks related to teenage pregnancy are not all justified. Early booking, adequate antenatal care and delivery by trained personnel should improve the obstetric and perinatal outcome in this age group.”

A blanket policy on fixed ages, without assessing other factors such as maturity and family support, may instead increase cases of sex out of wedlock among those below the legal age. This may result in more teenage pregnancies, and this time around, without a registered and responsible husband. We may also be dealing with more statutory rape cases when these can be avoided if two consenting parties are allowed to enter into a lawful marriage.

We propose for the government to tighten the procedures that govern the granting of permission for underage marriages instead of imposing a total ban. This can be done by enacting laws to mandate consent of the parent, parents or guardian of the bride and a confirmation letter from the Attorney-General’s Chambers of any impending investigation and/or criminal charges in any application for underage marriage.

More importantly, both the National Registration Department and Islamic authorities should also review the procedures to allow for a couple to register their marriages in order to address the stateless children issue.

Rafidah Hanim Mokhtar is president of the International Women’s Alliance for Family Institution and Quality Education.

The views expressed by the writer do not necessarily reflect those of FMT.