We have all welcome warmly the announcement of Minister Koonjoo Shah that the law will soon be amended so that the legal age to marry will be 18. As far as we know, this amendment will be brought about in the Children’ Bill soon to be introduced in the National Assembly. We understand that such amendment is brought forward to align Mauritius with International Conventions with the laudable intention to protect the girl child.
However, the announcement of Minister Koonjoo Shah has not clearly explained to us various issues which will arise from such amendment.
“ÉMANCIPATION PAR MARIAGE”
Whilst it is not clear whether the amendments to be brought in the Children’s Bill will also include provisions of the Code Civil, we wish to draw the attention of legal draftspersons and the Ministry concerned that our law does have a provision in article 476 of the Code Civil as to “l’émancipation par mariage “. The Code Civil states that « “ Le mineur est émancipé de plein droit par le mariage”. L’émancipation par mariage applies to young people of more than 16 who can marry under the present law. Marriage allows those young people to become adults so that they exercise all the rights and responsibilities as an adult would. “Le mineur émancipé par mariage est capable comme un majeur, de tous les actes de la vie civile”. It is not clear with this umbrella announcement whether the provision as to “lémancipation par mariage” will be simply scrapped.
Criminal Law To Align Itself
With The Legal Age Of Marriage
We do hope that there will also be an amendment to the Criminal Code so that it will be unlawful to have sexual intercourse with any person under the age of 18. Presently, sexual intercourse with a minor under the age of 16 is unlawful and therefore the Criminal Code will have to align itself with the provision of the Children’s Bill. We also propose that the defence that an accused may bring in Court to the effect that he believes that the minor looks more than 16 as it is presently, be looked into so that accused parties are rightly punished for having any intercourse with any minor under 18.
Provisions Regarding Religious
Marriages To Be Looked Into
The Code Civil has provided for the legality of religious marriages. All the implications of having the legal age of marriage to 18 years will necessarily have an impact specifically to Muslim Marriages being governed under these specific laws of the Code Civil. The provisions of religious marriages will have to be looked into as the Muslim Family Council will need new regulations in order to prohibit marriages under the age of 18.
Action Plan For “Concubinage”
We are all aware that young girls become pubère” earlier now and many already are living in “concubinage” when they are less than 16 years old. How do the authorities intend to tackle the sore problem of young “concubinage”? Figures from the Civil Status Office shows that from January 2019 to August 2019, 561 minors from the age of 16 to the age of 18 were civilly married. A vast campaign is necessary to educate all citizens of our country that the place of a girl or a boy (as the case may be) under 18 is at school or under apprenticeship. It is indeed praiseworthy to amend the law but this change of law will definitely not be enough. Sexual education must definitely accompany such change in our law so that our young know how to manage their sexual life and they are clear that as a minor, their place is at school.
Whilst marriage gives the woman a certain amount of protection namely alimony in case of divorce, pension in case of becoming a widow etc … , such provisions are not available for “concubins”. What is being proposed for all young girls who will persist in living in “concubinage”?
The Status Of Children
Born From Minors
As at now, children born from girls who get married at 16 have the status of legitimate children. Figures show that there are more than 1,000 children born from girls from 15 to 19 years. It is unfortunate that we do not have the exact figures for minors from 15 to 18 as we would have been able to know exactly how many newborns are specifically concerned. Be it as it may, such children will be considered as natural children. Even if natural children have the same rights as legitimate children, there is still a stigma in Mauritius when children are born out of wedlock.
We sincerely hope that these issues will be considered and civil society consulted as well as the various implications of the proposed amendment.