Nineteen-year-old Elina V. was 15 and in school when her grandmother forced her to marry a 24-year-old man. “I had to look after my husband, do housework, deal with in-laws, and work on the farm,” she told me. “My worst time was when I was pregnant. I had to do all this and deal with a pregnancy while I was just a child myself.”
Malawi’s parliament recently took an important step towards preventing child marriages by passing the long-awaited and much-needed Marriage, Divorce and Family Relations Bill (the “Marriage Bill”), which sets 18 as the minimum marriage age. The bill will become law as soon as the president signs it, but the law won’t make a real difference unless Malawi’s Constitution changes, too.
Under the country’s Constitution, persons between the ages of 15 and 18 may be married if they obtain parental consent before entering into marriage. Parents and guardians arrange most child marriages. The Constitution also does not specifically prohibit the marriage of children below 15, but provides that the state is obliged merely to “discourage” marriages where either party is under age 15.
The provisions of Malawi’s Marriage Bill cannot override the Constitution, according to the Malawi Law Commission.
Many of Malawi’s laws regulating marriage and divorce are inconsistent, which, together with the lack of a minimum marriage age, has contributed to Malawi’s sky-high child marriage rates – one of the highest in the world, with one out of two girls married before their 18th birthday.
When I interviewed magistrates on how they apply the various marriage laws in Malawi, most said that they apply the constitutional provisions. One magistrate commented on a case in which a father wanted the man who had married his 15-year-old daughter prosecuted for statutory rape: “The Constitution allows a girl who is 15 years to get married yet the Penal Code says anyone who has carnal knowledge of a girl below 16 commits a crime.” On the basis of the constitutional provision, the man was acquitted.
In addition to setting 18 as the minimum marriage age, the Marriage Bill also has strong protections for married women, giving equal status to both parties in a marriage. It also requires that all marriages be registered with a competent authority, which is a first under Malawian Law.
The law has the potential to change lives, but if the Constitution isn’t amended, women and girls like Elina will continue to suffer the long term human rights violations associated with child marriage.