Legal Progress and Socio-Economic Reflections on Child Marriage in Latin America

Most Latin American countries have increased the legal age of marriage to 16 or 18 years during the last years. However, the numbers of child marriages in Latin America do not reflect those reforms so far. Some reforms might be too recent. But furthermore, the legal age of marriage is only one factor out of many. The legislative reforms regulate civil marriage leaving informal unions and religious or indigenous marriages unaffected. Thus, the reforms might prevent early civil marriages, but they have not eliminated early informal unions and early religious or indigenous marriages and the socio-economic factors that can promote them.


I. INTRODUCTION
While child marriages 1 have declined in the entire world since the 1980s, Latin America 2 has not yet witnessed a decreasing trend. 3 According to statistics published by the United Nations International Children's Emergency Fund (UNICEF), in Latin America one woman in four aged between 20 and 24 was married before reaching the age of 18 (but after the age of 15). Five per cent of women were married before reaching the age of 15. 4 With those numbers, Latin America ranks above the global average 5 but below South Asia and the sub-Saharan countries in Africa. The dispersion of child marriages varies considerably between the individual Latin American countries and within the countries. The statistics are led by the Dominican Republic, Nicaragua, and Honduras, with more than 30 per cent of women being married before reaching the age of 18. Brazil is positioned in the middle with 26 per cent. 6 Furthermore, child marriages are more common in rural areas than in cities. 7 From a legal vantage point, almost all Latin American countries reformed their marriage laws restricting child marriages during the past years. The first part will outline reform tendencies as well as areas where legislation stagnates. As the above numbers show, the legislative reforms have not, so far, reduced child marriages in Latin America. With that in mind, the second part will sketch sociological findings.

II. LEGAL SITUATION
There are four important reform tendencies (a): the increase in the legal age of marriage, the equalization of the legal age for men and women, the abolition of exemptions, and the reduction of parental influence. At the same time, the legal framework on the consequences for non-compliance with age requirements stagnates (b).

A. Increasing the Legal Age of Marriage
First of all, there is a tendency to increase the legal age of marriage. For the purpose of this article, 'legal age of marriage' is to be understood as the age from which people can marry without requiring the permission or exemption from a public authority (e.g. a court). But people who reached the legal age of marriage might still need the consent of their legal representative (e.g. their parents).
Many early civil law codifications (e.g. Bolivia, 8 Chile, 9 Colombia, 10 Paraguay, 11 Uruguay, 12 and some Mexican states 13 ) reflected Canon Law, which allowed 4 UNICEF (n 3) 5. For  People of 2014. 33 Subsequently, all territories complied with this order. 34 Very recently, also the Dominican Republic raised the legal age of marriage to 18 years. 35 Only Cuba and Colombia have lower age limits: Cuba sets an age limit of 14 years for women and 16 years for men. 36 Colombia has treated women and men equally ever since a constitutional court decision in 2004 37 ; the age limit is 14 years (previously 12 for women and 14 for men). 38 In 2019 a proposal to increase the legal age to 18 years without exception failed. 39

B. Equal Treatment of Women and Men
The second tendency concerns the distinction between men and women. While early civil law codifications distinguished between men and women, by now, almost all countries have evened the age limits for men and women to achieve equality. Most countries have raised the legal age of marriage for women to bring it into line with the legal age of marriage for men. Brazil, in contrast, reduced the legal age of marriage for men from 18 to 16 years. 41 Only Cuba still distinguishes between men and women.

C. Abolition of Judicial Exemption Procedures
As a third tendency, one should emphasize the abolition of the possibility of an exemption from the legal age requirements. Early Latin American civil law codifications often allowed marriage to be contracted before reaching the legal age of marriage with a judicial exemption. 42 In Brazil, where an exemption from the legal age of marriage could be granted until recently, the civil code allowed for an exemption in two situations. 43 First, the pregnancy of the bride could lead to an exemption. 44 Secondly, an exemption could be granted if the minor and the other person who wished to marry had (criminally punishable) sexual contact; marriage or already living together with the offender gave rise to a waiver from punishment. 45 In the meantime, Brazil and other Latin American countries have abolished this ground for a waiver from punishment in cases of sexual abuse. 46 Sexual relations with minors, who have not reached the age of consent, carry criminal sanctions, regardless of whether a marriage exists or not. 47 Furthermore, most countries have eliminated the exemption procedure in recent years. 48 Only Argentina, 49 Peru,50 and Baja California (state of Mexico) 51 have preserved the possibility of an exemption. The granting of the exemption is subject to judicial discretion, although statutory limitations exist. Peru and the Mexican state of Baja California have a minimum age limit for the granting of an exemption; it is 16 years. 52 If both minor partners entering into marriage have reached the age of 16, the granting of the exemption is left to the discretion of the court, which must examine whether there are legitimate motives (motivos justificados) 53 or serious and justified reasons (causas graves y justificadas) 54 for marrying.
Argentina has no age limit for the seeking of an exemption. As the legal age of marriage is 16 years in Argentina, 55 persons aged 15 or younger may apply for a judicial exemption. 56 The court has to take into account the age and maturity of the minor. In particular, courts have to consider whether the minor can evaluate the legal 48  : 'Si los padres prestan conformidad para que su hijo menor contraiga matrimonio, la dispensa obligatoria es una intromisión estatal al pleno ejercicio de la autoridad parental y choca con el principio de la capacidad progresiva de los niños que pretende explicitar la esfera de la autonomía de los sujetos en forma escalonada y paulatina, como una tendencia a quebrar la tajante división minoría-mayoría de edad y reemplazar esos conceptos por aquella visión asimilable a la evolución psíquica-biológica de la persona.' consequences (consecuencias jurídicas) of the marriage and consider the opinion of the legal representatives. 57 Argentinean scholarship considers the possibility of an exemption to be conform with international law. 58

D. Reduction of Parental Influence
The fourth and last tendency concerns the role of parents and grandparents. In the 19th century and at the beginning of the 20th century, the consent of the father or of both parents was often required for the substantive validity of the marriage until the age of 21 years, partly because the legal age of marriage was linked to the age of majority. 59 In some cases, consent was necessary until the age of 25. 60 Furthermore, in the Dominican Republic, formally and respectfully obtaining parental or grandparental advice was a formal requirement for marriage. Until the age of 30 (men) or 25 (women), the couple had to ask for advice three times before they could enter into a marriage not approved by their parents (or grandparents). 61 The legal influence of the family was steadily reduced. 62 In countries where the legal age of marriage is 16 or earlier, couples require the consent of their parents or other legal representatives only until they reach the age of 18. 63 In countries that require an age of 18 years to marry, the legal age of marriage usually coincides with the age of legal majority, so that the consent of legal representatives is not required. Honduras is an exception: There the legal age of majority is not reached until the age of 21; persons who have reached the age of 18, but not yet the age of 21, therefore need the consent of their legal representatives for marriage. 64 Obtaining parental or grandparental advice is no longer one of the formal requirements for marriage in any Latin American country.

STAGNATION: LEGAL CONSEQUENCES OF NON-COMPLIANCE
WITH MARRIAGE REQUIREMENTS Despite the reforms on the legal age of marriage, the majority of Latin American countries are still quite generous in their treatment of marriages that are contracted in noncompliance with the legal age of marriage. Some legal systems do not 'punish' the failure to have reached the legal age with absolute nullity, but only with relative nullity or voidability. Furthermore, nullity (whether absolute or relative nullity) still has to be determined by a court. And breaches of the rules on the legal age of marriage are often curable.

A. Nullity or Voidability
Many Latin American countries differentiate between relative and absolute nullity or between voidability ('anulabilidad') and nullity ('nulidad') in the case of violations of the requirements for marriage, whereby the failure to have attained the legal age of marriage is classified differently. Some legal systems do not 'punish' such a shortcoming with absolute nullity, but only with relative nullity or voidability. Where the failure to have reached the legal age of marriage is classified as a reason for relative nullity (or voidability), nullity can usually be claimed only by the parties concerned. 65 If such a failure is classified as an (absolute) reason for nullity, anyone who has an interest in the matter can claim nullity. 66 In some cases, public officials are also entitled to submit an application. 67 In addition, the failure to have reached the legal age of marriage must be taken into account ex officio if the validity of the marriage is raised as a preliminary question in other proceedings. 68 A marriage entered into after having reached the legal age but in the absence of the consent of the legal representative often does not even lead to nullity or voidability. Rather, there are sanctions for the spouses. 69 In some cases, all ascendants (not only those entitled to give consent) have the right to disinherit the minor and reclaim gifts in the absence of consent. 70 In other cases, minors do not gain the power of disposal over their assets in the absence of parental consent, 71 or matrimonial property remains separated. 72 B. Judicial Declaration Nullity (whether absolute or relative nullity) still has to be determined by a court. The unlawful child marriage is not ipso iure void in any of the countries examined. To the contrary, only a judicial determination of the violation of the rules on the legal age of marriage will lead to a dissolution of the marriage. 73 Irrespective of the distinction between relative and absolute nullity, a positive declaratory decision on nullity or avoidance usually has retroactive effect (ex tunc). 74 There are, however, exceptions for partners and third parties acting in good faith and for the right of descent of children born in marriage. The retroactive rescission does not affect the affiliation of a child to the mother's husband. 75 C. Curability Most Latin American countries allow for a curing of marriage impediments. 76 In some states, reaching the legal age of marriage cures the absence of the legal age at the time of the marriage. 77 The full validity of the marriage contracted before reaching the legal age is therefore subject to the condition of reaching the legal age. In Brazil, there is an additional requirement of confirmation by the spouses and legal representatives. 78 In Peru, the spouses can even confirm a marriage that has already been dissolved by a court. 79 In some Latin American countries, curing occurs regardless of age in cases of pregnancy 80 or if the couple has been living together for a certain period of time. 81 Some countries combine reaching the legal age with a further condition. Majority cures a child marriage if the spouses have lived together prior to reaching majority without having claimed nullity, or if the wife has become pregnant before reaching the age of majority. 82 In some cases, there are time limits for claiming nullity irrespective of age, pregnancy, or cohabitation. These time limits are usually understood as procedural prescription rules; after the time limit has elapsed, no one can initiate a proceeding to declare the nullity of the marriage. 83 Finally, the death of one spouse occasionally leads to the loss of the right of action, 84 with the consequence that nullity can no longer be claimed in the case of inheritance.

III. SOCIO-ECONOMIC BACKGROUND
It is important to note that UNICEF includes not only formal marriages but also informal unions within the term 'child marriage'. Informal unions are characterized by the fact that partners live in a common household but are unmarried. 85 In Latin America, early informal unions predominate over formal child marriages. 86 For example, in Peru, Bolivia, Colombia, and Honduras, more than 80 per cent of the girls aged 15-17 who counted as 'married' within the UNICEF-definition lived with a man without being formally married. 87 Formal marriage has lost its importance in large parts of the Latin American population, though not everywhere. Furthermore, poverty, lack of educational opportunities), and ethnic affiliation and beliefs may promote early formal marriages or early informal unions.

SOCIAL IMPORTANCE OF FORMAL MARRIAGE
Today, Latin American legislators often acknowledge the instability of marriage. Several countries have introduced the possibility of divorce without the necessity of a reason or prior separation. 88 In addition, legislators no longer give marriage a monopoly position for family co-habitation. Non-marital relationships are regulated by law in most countries and offer couples to a great extent the same rights and obligations as marriages in terms of maintenance, inheritance, taxes, and social law. 89 In contrast to the legal progressiveness, however, no clear picture of the importance of marriage can be drawn in Latin American societies.

A. Social Status
In urban, educated and wealthier parts of Latin America, couples live together unmarried, because informal cohabitation is no longer associated with a social stigma. Even in more rural and poorer parts of Latin America, it is to a certain extent a common practice for young women and men to establish a common household without marrying; marriages are considered to be too expensive and cumbersome. 90 Thus, marriage as a step towards admission to the circle of adults and independence from parents has largely lost importance, although not everywhere. In some parts of the society, young women and men understand marriage as a form of emancipation from their parents and unmarried adults are still perceived as failures. 91 Marriage determines social status, especially that of women. 92 The perception of being a woman is associated with being married and being a mother. Girls learn that they obtain acceptance in the society through marriage and motherhood. They pin their hopes on marriage and grow up with the belief that their task is to serve their (future) husband.

B. Sexuality and Control
In large parts of Latin America, sexual relations outside of marriage are no longer socially stigmatized. It is accepted by society that young women and men will establish a common household without being married. Also, sexual relationships at a young age prior to marriage are regarded as normal. 93 More than 22 per cent of adolescents have their first sexual experiences before the age of 15. 94 Nevertheless, pre-marital sexual relations of women do not comport with the social norms everywhere; rather, in some parts of the society only marriage is accepted as a framework for female sexuality and great importance is attached to pre-marital virginity. 95 Lauro et al, for example, report for poorer areas in Belém (Federal state of Pará) and São Luís (Federal state of Maranhão) in Brazil that many of the interviewed men preferred wives who had no pre-marital relations. 96 If parents find out that their daughter is sexually active, they work towards a marriage to protect the family's honour. 97 Different social norms apply to young men; they are given more independence. 98 The restriction of female sexuality is based on the attempt to control young women. The parental pressure to marry early aims at controlling adolescent sexuality and preventing risky behaviour (going out, one-night stands). 99 The male preference for virgin women is accompanied by a preference for easily controllable women with a little experience in life. 100 The attempt to control young women is also reflected in the social beliefs about the ideal age for marriage. Brazilian men in the Taylor/Lauro study stated that they preferred underage wives because they were more attractive and easier to control 101 ; men in the Dominican Republic made similar remarks. 102 In contrast, young women prefer older men as partners because they associate age with greater life experience, responsibility, and economic independence. 103 The studies by Murphy-Graham et al 104 and Mann 105 as well as that of the Guatemala organization Igualdad Ya 106 illustrate, however, the multi-layered effect of this behaviour by pointing out the intrinsic motivation of young women. Young women consciously enter into relationships early for the purpose of escaping the parental household in order to gain control over their own life and sexuality. 107 Their decision expresses their understanding of self-determination. 108 Also in the study of Plan International and UNFPA, women expressed the hope that marriage would provide them more self-determination towards their parents and other social controls than they had in their family of origin. 109 Furthermore, women use marriage to escape from violence within their family of origin. 110 Studies show that a significant proportion of women who enter child marriage have experienced domestic violence in their past, and women believe that marriage offers them more protection than their family of origin. 111 Nevertheless, child marriages often resemble the conflict-laden situation from which the women sought protection. 112 A traditional understanding of gender roles prevents women from is obliged to participate in the marriage. Customary marriages do not have the effects of a civil marriage. And despite the strong influence of Canon Law, even a religious marriage produces legal effects only after fulfilling certain registration requirements. 121 However, in indigenous communities and in the poor rural population, civil requirements for marriages are often ignored, and marriages are established according to the customs of the community. 122 Thus, in societies where social expectations to marry still exist (for reasons of social status, sexuality, and reproduction), those expectations are not necessarily linked to civil marriage. Rather, customary or religious marriage is what counts in the eyes of society.

POVERTY AND LACK OF ECONOMIC PERSPECTIVE
Quantitative studies show a link between child marriages/early unions and poverty. The number of child marriages and early unions varies significantly between more wealthy and poorer sections of the population. 123 While an average of 25 per cent of women in Latin America were married or in a union before the age of 18, the figure is only 10 per cent in the most prosperous areas but 38 per cent in the poorest area. 124 In the Dominican Republic, almost a quarter (23.1 per cent) of the youth of the poorest fifth of the population entered a marriage or an early union before the age of 15 years; in the richest fifth, the figure is only 3.4 per cent. 125 According to the UN, the higher spread of child marriages and early unions in economically weaker parts of the population is linked to the limited alternatives resulting from poverty. Access to education is often denied, 126 and marriages or at least unions are frequently seen by parents as the only way to ensure for their child a more financially stable future. 127 Especially daughters are considered expensiveprobably because they often have a lower income than men-and must be married off. 128 Interview studies show that young women themselves often look for a relationship as a way out of poverty. 129 Traditional roles are attributed to genders, with men taking the role of family breadwinner. 130 According to one study, women consider an ideal husband to be a man who has money, can provide economic support, and has a car. 131 However, the hope of escaping poverty in the family of origin remains unfulfilled in most cases. The lack of school education and the social expectations projected onto women as housewives and mothers often lead to women not taking up employment and their financial situation ultimately does not change. Rather, women who marry early tend to depend on their husbands, on whom the burden of income generation solely rests. 132

EDUCATION
According to UNICEF, among women who were married or in a union before reaching the age of 18, 51 per cent have no level of education or only a primary school education; 18 per cent completed secondary school or higher education. 133 Early marriage or early unions and education influence each other in different ways. A lack of educational opportunities is the key reason for child marriage and simultaneously one of its prime risks.
A study published by UN Women, UNICEF et al identifies the lack of alternative (career) perspectives in life and exclusion from the educational system as a key reason for child marriage in Latin America. 134 In addition to an insufficient educational system, the general idea that school education is more important for boys than for girls also plays an important role. Education for girls is less valued because girls are less likely to perform jobs that require education. 135 Girls are expected to run the household and later care for the children 136 ; boys are expected to feed their families with their work. 137 While the lack of educational opportunities and a lack of educational ambition among girls are the causes of child marriage, it is also the case that child marriages and early unions put the education of young couples at risk. As soon as young women marry or enter a union (and/or become pregnant), their chances of completing school decrease. 138 In practice, however, the correlation between child marriage (or early unions), early pregnancy, and education is more complex. Although it often happens that young women leave school after marriage or the birth of a child, there are also cases reported in which young women continue to go to school, while young men have to leave school to support the family. 139

ETHNIC AFFILIATION AND BELIEFS
In some Latin American countries, women who belong to indigenous population groups or who have African roots marry more often before the age of 18 years than the women from other population groups. 140 This could be related to group-specific social norms and traditions. 141 However, in today's Latin America child marriage and early unions are not an issue of certain groups as the phenomena pervade all ethnic groups. 142 Rather, the increased number of child marriages in certain ethnic groups should be read in conjunction with the spread of poverty in these groups and the more traditional social norms in rural areas.

IV. CONCLUSION
Legislative reforms epitomize a shift in the respective understanding that the legal systems in Latin America have of child marriage. With the increase in the legal age of marriage, the equal treatment of women and men and the reduction of parental influence, many legislators took action to combat child marriage. In most Latin American countries, the legal age of marriage is now 16 or 18 years. However, the legal consequences of marriages concluded in violation of the legal age have remained unaffected by these reforms; in particular, most countries allow for a curing of this deficit.
The statistics on child marriages and early informal unions do not reflect the reforms so far. Two factors have prevented the numbers from declining. First, the reforms only have an impact on civil marriages. Civil marriages, however, are not the only relevant framework for early relationships. Moreover, early informal unions, where couples live together unmarried, claim a great share because the social importance of marriage has declined parts of Latin America. Furthermore, customary or religious marriage is more important to indigenous communities as well as in the poor, rural population; in indigenous population groups and in poor, rural areas, civil law is often effective on paper only and is not applied in practice.
Secondly, the legal treatment of child marriages is only one factor out of many. Social pressure to marry early, early sexual relationships and early pregnancy, poverty, lack of economic and educational perspectives, and also ethnic affiliation and beliefs can promote early marriages or early informal unions. The increase in the legal age of marriage has not eliminated those socio-economic factors. Thus, sexual education, the availability of contraceptives, and improving educational and professional perspectives, especially for young women, are of paramount importance for the future.