Early marriage debate: They split in two!

A local court judge in Bulgaria has petitioned the Constitutional Court to annul the ban on marriage for 16-year-olds. This is the first constitutional case filed by a judge since the amendments to the basic law.

Following the amendment, any court can now refer a case to the Constitutional Court, either on the application of a party to the case or on its own initiative, to determine whether a law applicable to the case in question is unconstitutional. The proceedings in the case will continue and the court will issue its judgment, which will be final once the proceedings before the Constitutional Court are completed.

According to Lex, Elena Dineva-Ilieva has asked the Sofia Regional Court to declare unconstitutional the repeal of the provisions of the Family Code (CC) that allow marriage of persons over 16 years of age exceptionally and with the permission of the regional court.

These provisions have been repealed by the latest amendments to the CC and as of December 22, 2023 they are no longer part of the legal framework. The proposal to abolish the possibility for people over 16 to marry after court permission was made by three GERB MPs Denitsa Sacheva, Iliana Zhekova and Ekaterina Zaharieva.

The case referred to the Constitutional Court by Judge Dineva-Ilieva was a request to allow a 16-year-old girl to marry a 20-year-old man. The two live together and their daughter was born in November 2023 and the minor mother argued that both parties wanted to raise their children together. The district judge ruled that the CC amendment was unconstitutional because the procedure for its adoption was not followed in the first place. The repeal was proposed between the first and second readings of the constitutional amendments and was in fact only voted on once, not twice as required by the Constitution. According to the judge, this prevented public debate on proposals affecting citizens' fundamental rights. The second argument is that pending cases, such as the case before it, have not been decided. It is argued in the application that the rule of law has been violated because the law in question does not provide for a special regime for pending cases and therefore legal certainty is affected. The judge also considered that the annulment violated the right to privacy as well as the Constitutional provision that "the upbringing and education of children until they reach majority is the right and duty of their parents and shall be supported by the State".