In the closing days of 2025, the Scottish government published its long-awaited Consultation on Family Law. One of the issues it explores is whether the minimum age for entry into marriage and civil partnership should be raised from the current 16 years old to 18; a difficult question on which I confess to being somewhat conflicted.

A striking feature of Scots law is that it empowers children and young people and holds them responsible for their actions at different ages in different contexts. For example, a young person is viewed as being mature enough to have possession of an air rifle at 14 years old (Firearms Act 1968, s.23) but is not trusted behind the wheel of a car until reaching 17 (Road Traffic Act 1988, s.101). A 16-year-old is regarded as ready to participate in shaping the future of the country by voting in Scottish elections (Representation of the People Act 1983, s.2(1A)), yet account will be taken of his or her youth and immaturity while under the age of 25 in sentencing following a criminal trial (Scottish Sentencing Council, Sentencing Young People: Sentencing Guideline, 2022).

This inconsistency in the law is sometimes the result of historical accident and sometimes the product of deliberate policy but, whatever the reason, a thorough review of the Scots law on age, capacity and responsibility is long overdue. Were further support for such a review required, the United Nations Committee on the Rights of the Child (the CRC Committee) recommended taking that step in its most recent Concluding Observations on the UK in 2023 (para.18(a)).

The minimum age for marriage and civil partnership

It is familiar territory that a young person acquires the capacity to marry or register a civil partnership in Scotland at the age of 16 (Age of Marriage (Scotland) Act 1977, s.1; Civil Partnership Act 2004, s.86). In the Consultation on Family Law, the Scottish government asks the question, “Should the Scottish government legislate to raise the minimum age of marriage and civil partnership to 18?” While it simply outlines some of the arguments for and against doing so, one is left with the impression that it is hoping that respondents will answer “Yes”.

At the outset, let me make clear that I do not think that getting married or registering a civil partnership at 16 or 17 is a good idea. In common with most other adults, it is my view that doing so would usually be premature and unwise.

That, however, is not the point. Raising the age for marriage would mean taking a fundamental right – one guaranteed by the European Convention on Human Rights, art. 12 – away from young people, albeit temporarily. Removing any right is a step that should only be taken where a strong case has been made for doing so, balancing protection and autonomy.

What, then, are the arguments advanced for and against raising the age?

Harms associated with early marriage

There is an abundance of evidence that marrying young is associated with a range of adverse consequences, particularly for young women, including dropping out of school; early childbearing and associated infant and maternal health issue and mortality; physical and mental health problems; and an increased risk of domestic abuse. However, much of the research on this was undertaken in jurisdictions in sub-Saharan Arica and on the Indian sub-continent where socio-economic conditions are very different to those prevailing in Scotland. What happens in these countries does not necessarily translate into the domestic setting here.

Were marriage to become unavailable to young people under 18, some would simply cohabit and all the same harms as flow from marriage would follow. In Mexico, for example, raising the age for marriage to 18 led to a reduction in child marriages, but many young women simply lived with their partners, had babies and abandoned formal education (C. Belles-Obrero and M. Lombardi, “Will You Marry Me, Later? Age-of Marriage Laws and Child Marriage in Mexico” (2023) 58 J. Hum. Res. 221).

A further point is worth noting. If the only option for 16 and 17-year-olds in Scotland who want to be together were to become non-marital cohabitation, they would be denied the more extensive rights that they would have had as spouses or civil partners. That would be so even if the proposals for reform of the law on cohabitation, set out in the Scottish Law Commission’s Report on Cohabitation and also discussed in the Consultation on Family Law (paras 1.15-1.77), were to be implemented. In short, by seeking to save young people from some harms, the legal system would be exposing them to others.

International consensus

Given the adverse consequences of marrying while young, it is unsurprising to find consensus in the international human rights community that the minimum age for marriage should be 18. It is important to note, however, that while the United Nationa Convention on the Rights of the Child (CRC) defines a child as anyone under the age of 18 (art. 1), it does not provide for a minimum age for marriage. Nor does any other international treaty require a minimum age of 18.

Nonetheless, the international consensus is solidly behind a minimum age of 18 and one example of that being articulated is found in the revised Joint General Recommendation/General Comment of the UN Committees on the Elimination of Violence Against Women and on the Rights of the Child where the Committees expressed the view that any marriage where at least one of the parties is under 18 is a “child marriage” and that a “child marriage is considered to be a form of forced marriage” (para.20). Unsurprisingly, they recommended establishing a universal minimum legal age for marriage at 18 (para.55(f)).

General recommendations and general comments from treaty bodies are rightly accorded the greatest respect, not least because of the very high calibre of those who serve on the treaty bodies. However, these documents are not binding since neither the on the Convention on the Elimination of Discrimination against Women nor the CRC gives the relevant treaty body express power to adopt binding interpretations of the treaty (International Law Association: Committee on International Human Rights Law and Practice, Final Report on the Impact of Finding of the United Nations Human Rights Treaty Bodies (London: International Law Association, 2004), paras 16 and 18).

The international consensus is reflected in the CRC Committee’s most recent UN Concluding Observations on the UK where it welcomes the fact that the minimum age for marriage has been raised in England and Wales and recommends that the same should be done in Scotland and Northern Ireland (paras 4 and 18(b)). Again, while concluding observations warrant serious consideration, they are not binding on the state party to which they are addressed.

Obligation on the Scottish ministers

The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 defines the “UNCRC requirements” as those rights and obligations under the Convention and the first and second optional protocols thereto set out in the Schedule to the Act (s.1(2)). It makes it unlawful for the Scottish ministers “to act or fail to act … in a way which is incompatible with the UNCRC requirements” (s.6(1)) and (5)(a)(i)). Yet, as we have seen, the CRC does not set a minimum age for marriage, so the Scottish ministers are under no obligation to raise the age to 18.

The age has been raised in other jurisdictions

As is noted in the Scottish government Consultation on Family Law, the minimum age for marriage has been raised to 18 in a number of other jurisdictions, including Denmark, Finland, Germany, Ireland, Jersey, Norway and Sweden, quite recently (para.2.25). That is not, in itself, a reason for Scotland to follow suit, but the fact that the socio-economic conditions in these jurisdictions are similar to those prevailing here gives pause for thought.

The consultation makes particular mention of the fact that the age for marriage and civil partnership was raised to 18 recently in England and Wales and the plans to do so in Northern Ireland (paras 2.26-2.30). It is worth remembering, however, that it is not unusual for child and family law in the different UK jurisdictions to take divergent paths. 

Adult stakeholders favour raising the age

Prior to publishing the Consultation on Family Law, Scottish government officials sought the views of stakeholders in Scotland on whether the age for marriage should be raised to 18 and found that they favoured doing so (para.2.43). However, when one looks at the draft Impact Assessments that were published along with the consultation, it becomes clear that the views gathered were those of adult stakeholders (p.7). Consultation with young people appears to have been fairly minimal and was confined to “some members of the Scottish Youth Parliament” (draft Impact Assessments, p.33). Indeed, it is acknowledged that the Scottish government would “need to try to consult with more young people” (draft Impact Assessments, p.48). Given that it is the rights of young people that would be removed by raising the age, it is submitted that the Scottish government should do more than “try” to consult a representative sample of them.

Improved protection against forced marriage

It is suggested that raising the age would give further protection against forced marriage. That may be the case in so far as younger people may be more susceptible to coercion than those who are older. However, there is already extensive protection against forced marriage.

A forced marriage protection order may be sought in an effort to prevent anyone, regardless of age, being forced into marriage or civil partnership (Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011) and a person under 18 may be referred to a children’s hearing where forced marriage or civil partnership is suspected (Children’s Hearings (Scotland) Act 2011, s.67(2)(p) and (q)).

In addition, it is an offence to use “violence, threats or any other form of coercion” in the attempt to cause another person to enter a marriage or civil partnership or to use deception to lure a person abroad for that purpose (Anti-social Behaviour, Crime and Policing Act 2014, s.122). Whether raising the age for marriage would add to the level of protection is questionable.

A non-problem in Scotland?

Sixteen and 17-year-olds in Scotland are not showing any great enthusiasm for marrying or registering a civil partnership. As the Consultation points out, only 21 of the 26,753 marriages solemnised in 2023 involved a party or parties under 18, down from 50 in 2013, and there were only four civil partnerships registered between 2005 and 2023 involving similarly young parties (para. 2.35).

The very small number of marriages and civil partnerships involving 16 and 17-year-olds opens the door to a number of arguments. On the one hand, the rarity of the phenomenon suggests that any resulting harm occasioned is minimal at most and does not warrant amending the legislation. However, harm to any young person is something that the legal system should take seriously. On the other hand, it can be argued that raising the age will affect very few people. Yet such a reform would remove an existing right from that small group, denying their agency. The statistics, it seems, do not get us any further.

Inconsistency

While Scots law on age, capacity and responsibility is replete with inconsistency, reaching 16 is something of a landmark. That is when a young person acquires the capacity to do many “adult-like” things, including transacting, voting in Scottish elections, leaving home, engaging in full-time employment and consenting to sexual activity. Arguably, marrying and registering a civil partnership are akin to these activities. Thus, raising the age at which they can do so to 18 simply adds to the existing inconsistency.

Conclusion

The temptation to legislate should be resisted in the absence of a strong case being made for doing so. As the foregoing discussion demonstrates, it is far from clear that such a case has been made for raising the minimum age for marriage and civil partnership to 18. Rather than rushing to legislate – in order to look good in the eyes of the international human rights community, in order to follow the reform path taken in England and Wales or for whatever reason – it would be far better to undertake a comprehensive review of the various ages at which young people acquire capacity and responsibility in Scotland.

There may be good reason for different ages applying in different contexts and by reviewing the rationale underpinning the law it may be possible to devise a more consistent and coherent system than that in place at present. The minimum age for marriage and civil partnership would, of course, be examined as part of that review and the decision on what, if anything, to do about it should be deferred until the review is completed.

Elaine E Sutherland is professor emerita at the University of Stirling; distinguished professor of law emerita at Lewis & Clark Law School, Portland, Oregon; and a member of the Child & Family Law Committee of the Law Society of Scotland. The views expressed here are her own and should not be regarded as reflecting those of any of these bodies.