(Nairobi) – A new Malawi law that sets 18 as the minimum age for marriage is an important step toward preventing child marriage, Human Rights Watch said today. The Marriage, Divorce and Family Relations Act (Marriage Act) of 2015 became law following the president’s assent. Malawi’s child marriage rates are among the highest in the world, with one out of two girls married before they turn 18.
Because the provisions of the new law cannot override Malawi’s constitution, it is important that Malawi’s parliament amend the constitution to raise the minimum age to 18 for both boys and girls without parental consent, Human Rights Watch said. The amendment should also establish a requirement for full and free consent of both partners to a marriage. The government should also seek to revise provisions of the new marriage law that discriminate against transgender and intersex people as well as same-sex couples.
“By enacting a new marriage law, Malawi is telling the world that it is ready to protect girls from the abuse and exploitation that result from child marriages,” said Agnes Odhiambo, senior women’s rights researcher at Human Rights Watch. “It should go a step further and amend the constitution to provide stronger protections to girls against this harmful practice.”
Parents and guardians arrange most child marriages in Malawi. Under Malawi’s constitution, girls and boys ages 15 to 18 may be married with parental consent. The constitution also does not specifically prohibit the marriage of children under 15, but merely directs the government to “discourage” such marriages.
In a 2014 report, Human Rights Watch found that many of Malawi’s laws regulating marriage and divorce are inconsistent, which, together with the lack of a minimum marriage age, contributed to the high rate of child marriage. Magistrates told Human Rights Watch that the constitutional provisions took precedence over contrary provisions in the various marriage laws.
The new Marriage Act consolidates all laws on marriage and divorce. In addition to setting 18 as the minimum marriage age for boys and girls, it contains strong protections for married women, giving equal status to both parties. It also includes a new requirement to register marriages with the government.
The government should take steps to enforce the new marriage law, Human Rights Watch said. It should develop a national action plan to combat child marriage, and allocate sufficient resources to carry out the plan.
The government should also take steps to repeal provisions of the Marriage Act that discriminate against lesbian, gay, bisexual, transgender, and intersex (LGBTI) people, Human Rights Watch said. The preamble to the law says, “Malawi has an obligation to meet international legal standards in its laws, and the laws on marriage and divorce are no exception.” But the wording of the new law violates Malawi’s human rights obligations to protect against discrimination based on sexual orientation and gender identity, Human Rights Watch said.
By defining sex as “the sex of a person at birth,” the Marriage Act denies equal rights to form a family to some transgender people. The same provision denies the right to marriage to some intersex people – those born with both male and female sex characteristics – whose sex is often assigned arbitrarily at birth.
In addition, though Malawi’s constitution does not expressly preclude marriage for same-sex couples, the Marriage Act limits marriage to “persons of the opposite sex,” ignoring the reality of same-sex relationships.
The law also reinforces the prohibition of “unnatural offenses” under Malawi’s Penal Code – a provision used to criminalize consensual same-sex relations between adults – by listing a conviction for such an offense as acceptable evidence of irretrievable marriage breakdown.
“In passing this marriage law, Malawi’s government has itself recognized its obligation to uphold international law,” Odhiambo said. “But the provisions that discriminate on the basis of gender identity and sexual orientation flagrantly violate internationally recognized human rights, reinforcing the perception that LGBTI Malawians are second-class citizens.”