Unaccompanied underage refugees in Germany will be routinely entrusted to the Youth Welfare Office and appointed a legal guardian.

If, for example, an underage refugee arrives with their marriage partner, then it will first be determined whether the marriage is considered valid in Germany. In this context, there have been substantial changes since the introduction of the “Act Against Child Marriage” on July 18, 2017.

According to this law, it is now banned to conclude a marriage if one of the marriage partners is under 18 years of age, even with the consent of the parents or the Youth Welfare Office, as it was possible until now. Regarding marriages between minors concluded in a foreign country, it is now the case that mar-riages involving persons under 16 years of age are, as a rule, considered invalid and that mar-riages involving persons between 16 and 18 years of age shall be annulled upon request.

This has far-reaching legal consequences whose practical applications and effects remain to be seen.

The title alone, “Act Against Child Marriage”, signals a stigmatising attitude towards  mar-riage in the public sphere. The term “child marriage” suggests the forced marriage of children, especially of girls up to the age of 14.

In fact, marriages with and between underage person arise out of various contexts, out of different realities of life. It seems inappropriate, for example, to frame the marriage between a 17-year-old and a 19-year-old adolescent, who married in order to flee from Syria to Germany, in terms of a “child marriage” (German Institute for Youth Human Services and Family Law, DIJuF e. V., February 22, 2017).

Further problems arise if, for example, a minor and their partner are already parents or if they have a child in Germany. In that case, paternity first has to be determined and recognised.

For this purpose, an underage person requires the approval of a legal representative (section 1596, paragraph 4, sentence 2, subsentence 2, German Civil Code). According to past ex-perience, a legal guardian (representative) will only be appointed after a longer interval, in many cases only after months.

During that period, the legal representation of a child of an underage mother is restricted (sec-tion 1673, German Civil Code). It is possible to claim retroactive maintenance, but still such payments for supporting subsistence might be lacking for months.

Visitation rights are also not enforceable without legal paternity. The situation is similar when it comes to common parental care: The right to cooperative care involving the partner of an underage mother can only be claimed by issuing mutual custody declarations. This also requires the approval of the mother’s legal re-presentative (section 1626c, sentence 2, sub-sentence 1, German Civil Code), which means that delays and unclear legal situations are to be expected. It is also questionable if and when the parents will receive appropriate counselling / information in order, for example, to catch up on the acknowledgement of paternity and the submission of mutual custody declarations.