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Minors’ protection from early marriage requires the interpretation of existing laws or a non-confessional new law

16-5-2014

The Daily Star newspaper published a report today about early marriages and how some judges are re-interpreting existing laws to protect underage girls from this practice. Judge Fawzi Khamis, who served as the head of the juvenile court from 2004-09, told the newspaper that the key to protecting girls from early marriage lies in how a judge chooses to interpret the legal definition of “danger”, as it relates to Articles 24-26 in the law for juveniles.  Khamis continues by saying that although the articles do not mention early age marriage in particular, they do state that “if a juvenile is subject to danger, either in an environment where they might be exploited or abused, the judge can use this article to protect them”. However, his jurisprudence often clashes with that of religious court, which argues it has the prerogative over marital matters. Judge Khamis also indicated that when laws are not explicit, judges must follow precedents or set their own, through broadening the application of the “danger” clause, by arguing that the marriage could imperil a minor. Khamis added that the question of danger in early age marriage becomes nebulous when probing the details, and that any future law prohibiting child marriage must tackle the underlying subtleties, adding that the issue may differ when a 17-year-old woman is marrying a 21-year-old man, or a 50-year-old man.
Another high-profile judge, who requested anonymity, said that Article 503, in the Penal Code, which relates to consent in a sexual relationship, in addition to the exploitation clause included in the 2011 anti-trafficking law, could also be used to protect child brides. However, the judge added, the problem often lies in the primacy of parents as consent givers, according to religious courts.
It is important to note that the National Commission for Lebanese Women (NCLW) is lobbying to have marriages registered in the personal statute, which would require the approval of a civil judge, making it possible for the judiciary to intervene if the marriage involves minors. NCLW, however, is still in the process of drafting a comparative legal study, looking at laws regulating early age marriage in Europe and the Arab region, in the hope of drafting a law to prohibit such marriages in Lebanon soon. “Doing so would require bypassing the core values of the confessional system”, according to a commission member involved in the drafting of the law, who also requested anonymity.
Source: The Daily Star 16 May 2014

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