By Jazia Gibril & Marwan Tashani
The father, accompanied by his daughter, 13 or perhaps a little older, enters the District Court near his home and heads to the office of the judge of urgent and non-contentious matters.
He asks the judge to grant him, as his underage daughter’s guardian, permission for her to marry, presenting her birth certificate along with the request.
Upon examining the request, the judge is surprised by the child’s age. Amazed, he asks her, “Do you wish to get married?”. She nods.
Cautious, the judge requests that the father step out of the office. He then asks her again alone, and, visibly confused, she gives the same answer without raising her head.
The judge looks at her and sees before his eyes a child not fit for marriage and perhaps afraid of her father. But the judge is bound by the text of the law, which gives guardians the power to ask such permission, and so his heart aches as he is forced to sign the permission.
This scene is not from a novel nor a tragic play. Rather, it is an imagined scenario based on similar situations that recur almost constantly in most of Libya’s District Courts.
When we frequent any such court or examine the records of non-contentious orders, the issue of underage marriage is plainly evident.
As a negative social phenomenon, it should be branded a problem even if it has been legalized.
Despite creating several social, cultural, psychological, health, and economic issues it has received no attention from the government, community, or media.
In this article, we shall analyze the legislative aspect of this phenomenon and its numerous repercussions.
The Prevalence of Underage Marriage in Libya
A comprehensive official statistic for cases of underage or early marriage in Libya cannot be obtained because of the difficulty of collecting data from the large number of courts and their lack of digital documentation.
For example, the Bureau of Statistics and Census has stated that it has no documented figures because of the state of chaos and political division in the country.
However, the steady increase in underage marriage during recent years is noticeable.
In a press report, The New Arab stated that it was informed by a judicial source in the Tripoli courthouse that the courthouse had registered 186 underage marriages between 2011 and 2017, including 36 marriages between two children in which the husband was no older than 16 and the wife was no older than 14.
In the report, al-Mahdi al-Ajili, a marriage officiant in the North Tripoli Court, mentioned that this figure is for Tripoli alone and that the phenomenon, protected by tribal custom, is rampant in desert and rural areas.
He stated that there are “cases documented in the south, including one, for example, where a man in his fifties collected three minors alongside his first wife, who is about the same age as her three co-wives’ mothers”.
He added that, “There is much legal trickery in rural and Bedouin areas to register these marriages, via legal proceedings to change the [child’s documented] age and others documenting the marriage with a falsified date.
There are those who provide cover for this trickery and let it pass”. He also said that, “One of the biggest issues that needed to be settled is the religio-legal disagreements over the age of marriage.
The judge has no option but to approve the marriage of an underage girl as long as her guardian is the one marrying her off”.
On the margins of a conference titled “Underage Marriage Between the Permissible and the Prohibited: Violating Childhood” held by the Faculty of Law Surman and Sabratha University in August 2018, the president of the Department of Private Law in the former institution Dr. Najiya al-Atraq warned of the dangers of the rise in underage marriages and its increasing negative consequences, most importantly the existence of illiterate mothers who cannot be relied on to produce an educated and ambitious generation.
According to al-Atraq, for an underage girl marriage means ceasing study and a cap on her academic aspirations. She added that, “According to the Sharia Department in the Tripoli Courthouse, cases of underage marriage are witnessing an alarming increase both in terms of number and the harm they do to those wives”.
She stressed the high incidence of death due to pregnancy or childbirth and of miscarriage among these girls.
In Benghazi, for example, we observed that, within the territorial jurisdiction of the al-Baraka and al-Fuwayhat district courts in the South Benghazi Court of First Instance, the number of permissions was high in 2013.
The number declined during 2015, perhaps because of the suspension of judicial work due to the war, but it then gradually rose to reach a high rate in 2018.
While this shows the striking growth of this phenomenon, we must distinguish between the types of permission granted by a judge.
For example, because of the political divide, the personal status law no. 10 of 1984, which sets the age of marriage to 20 years, is still in effect in the east of the country.
Granting permission to people aged 19 or 18 poses no particular problem as it accords with international standards.
In the west of the country, these provisions were amended by Law no. 14 of 2015, issued October 2015, to stipulate the age of 18.
The danger in both the east and west lies in granting permission to girls younger than 18.
We have no statistics or data for the south of the country, but the situation is probably no better given the nature of the social and tribal relations and the influence of norms, customs, and traditions that do not condemn this phenomenon.
Defining Judicial Permission
The Libyan legislators granted the judge of urgent matters in the Personal Status Department in the District Court the power to grant permission for marriage below the legal age. This permission is issued in the form of a non-contentious order on petition.
The permission is a formality, but it is very important and is one of the requirements for contracting the minor’s marriage.
The judge takes this measure single handedly with his powers to protect the minor’s interests, which means that this power is a power the legislators granted the judge to ascertain that the two conditions of interest and necessity are met.
Hence, the judge has a key role in assessing whether to grant permission, and moreover, granting permission is the exception to the rule. However, in practice, the conditions of interest and necessity are not verified, and judges easily issue the permissions.
From another angle, some believe that all the responsibility rests with the judge because the judge may refuse permission if the justifications and conditions in the law’s text – namely interest and necessity – are not met.
In this regard, Dr. Hussein Suhaib argues on his Facebook page that the legislators vested judges with granting or refusing permission by giving them absolute power to consider the marriage in all its aspects using any means of investigation they see fit, be they medical or social, and then decide whether to grant permission.
He added that, “As long as the only one who may refuse or grant permission is the judge and the marriage cannot occur without it, then the judge is the first and last person responsible for it.
The guardian is not responsible unless he marries her off without obtaining the court’s permission”.
What are the obligations that rest with the wife under the marital contract and that require consent and capacity in the subject of the contract?
Article 18 of Law no. 10 of 1984 answers that she is obliged, in addition to the duty of enabling the husband to exercise the right of marital intimacy [al-mu‘ashara al-zawjiyya], to care for the husband’s comfort and physical and psychological stability; to oversee, organize, and maintain the marital home; to raise, protect, and suckle her children; and finally, to not inflict physical or psychological harm on the husband.
What is a Minor Under Libyan Law?
Capacity is a quality in a person that renders them fit to be addressed by the provisions of Islamic Law or the law. It is divided into legal standing, which is a person’s power to acquire rights and bear obligations, and legal agency, which is a person’s power to express their will in a manner entailing legal consequences.
The latter is only found in a person capable of discernment and managing their own affairs from a legal perspective, and it gradually increases as a person’s discernment increases in accordance with age.
By default, a person has full capacity unless that capacity is stripped or limited by law.
Under Libyan personal status law, a person has full capacity if they have a sound mind and have reached the age of majority, which Law no. 10 of 1984 set at 20.
Before that age, a person cannot contract a marriage except with permission that the court issues for the sake of an interest or necessity it perceives after the guardian approves.
Law no. 14 of 2015 amended these provisions, most importantly by reducing the age of capacity for marriage to 18 years.
The timing of this legislative amendment, which the General National Congress issued amidst the dispute over its mandate, raises multiple questions about its purpose and the wisdom behind adopting it.
We can comment on the amendment by stating that the age of 20 stipulated in the 1984 law is a special age of capacity higher than the general age of capacity of 18 stipulated in the Law of Minors’ Affairs, the Penal Code, and the electoral laws.
While the new amendment could have been accepted on the basis that the legislators were equalizing capacity to marry with the capacity to enter contracts, criminal responsibility, and the capacity to vote, its flaw was that it still allowed underage marriage once a judge’s permission is obtained (permission that tends to become pro forma, as mentioned earlier).
The legislation should have stipulated that the permission be explained and be granted after a case study in order to check the judge’s discretionary power.
For example, it could have obliged the guardian to present his underage daughter to a social worker, who would prepare a report about her situation and whether she can bear the responsibility of marriage.
It is also important that the legislation be amended to provide a specific mechanism with objective conditions and clear criteria for granting permission for a minor to marry as the term “interest and necessity” is insufficient.
A serious penalty consisting of a hefty fine must be imposed on a guardian who marries off his daughters without regard for these conditions or who falsifies data or lies to the judge about her age.
The conditions should also include consent from the underage girl and her mother to ensure that there is no coercion from the male guardian, be he the father, the stepfather, or the brother.
The legislation should also stipulate compulsory recourse to medical expertise to determine the girl’s physical, mental, and psychological ability to take such a pivotal step in her life, as well as social expertise to try to ascertain that the marriage will not have negative consequences such as ending education, physical and psychological harm, and harm or death due to pregnancy and childbirth.
The reasons should also be objective and pressing, and the permission should be issued not by an individual judge but by an appellate body, which means that the court, in an appellate body, would be the authority that grants permission, not the district judge.
This is especially important as we know that in practice, a junior judge, not necessarily the head of the department, may be entrusted with this power.
The Medical, Psychological, and Social Effects of Underage Marriage
The effects and repercussions of underage marriage are not limited to legal issues. Rather, such marriages also have medical, psychological, and social effects on the girls and cause them numerous problems.
Regarding the medical effects related to pregnancy and childbirth, the largest dangers that underage girls face are repeated miscarriages, premature birth, and an increased rate of cesarean births.
Moreover, death during pregnancy and childbirth is more common among underage wives because of their lack of physiological and intellectual maturity.
In Egypt, a study prepared in May 2017 titled “A Deep Look at the Particularities of Underage Wives in Egypt” documented a number of negative effects of early marriage on the girls’ health and social and human rights.
Most importantly, children married before the age of 18 are less educated and poorer, more susceptible to being married to men much older than them (approximately 24 years old on average) and hence less connected to their husbands and less happy in their marital and sex life because of their inability to comprehend and discuss their personal and family matters.
They also become more supportive of domestic violence due to a lack of awareness or deprivation of their human rights, and they participate significantly less in the labor market and political life.
The phenomenon of underage marriage calls for social and field studies so that its effects and repercussions can be evaluated accurately and scientifically.
Statistics from all the courts are also needed so that they can be analyzed and conclusions drawn.
Overall, underage marriage in Libya is not only a legislative problem; rather, society is a key part of the problem as sometimes it ignores the issue and at other times creates justifications for it . Hence, dealing with the issue is not easy.
Firstly, a precise legislative treatment is needed, followed by a social effort to confront it in which civil society and the media are utilized to conduct intensive awareness and education campaigns that explain the phenomenon, its causes, and the danger it poses to children and society.
These campaigns must also focus on the community’s key role in rejecting and condemning these practices, as continued silence and disregard under the pretext of custom and tradition could exacerbate the phenomenon beyond our ability to confront it and remedy its effects.
The article is an edited translation from Arabic.
Jazia Gibril – Professor of Criminal Law, Faculty of Law, University of Benghazi, Vice Dean of the Faculty of Law for Scientific Affairs, Vice President of the Center for Law and Society Studies.
Marwan Tashani -Law researcher specializing in human rights, transitional justice and judicial reform. Participated in several researches and studies with the University of Leiden, the Netherlands, Benghazi University, University of Sousse, Tunisia, Center for Law and Society Studies Benghazi and Center for Political, Economic and Social Studies. He has published numerous articles on specialized websites dealing with an assessment of legislation, the constitution and pressing human rights issues. Participated in many scientific papers and researches in various scientific conferences and seminars.
THE LEGAL AGENDA