Where to seek help if you are worried you might be forced into marriage 3rd June 2009: Introduction: The Marriage Act 1949 and the Matrimonial Causes Act 1973 govern the law on marriage in England and Wales. The minimum age at which a person is able to consent to a marriage is 16 years old; a person under the age of 18 may not marry without parental consent.
Marriages conducted abroad in accordance with the proper formalities required by that country’s laws are generally recognised in England and Wales, provided both parties have the legal capacity to marry, although bigamy (having more than one married partner is not accepted for the purpose of entry clearance to the United Kingdom). In general terms the central point is whether the marriage itself is genuine and with a view to permanence or sustainability.
Section 12c of the Matrimonial Causes Act 1973 states that a marriage shall be voidable if "either party to the marriage did not validly consent to it, whether in consequence or duress, mistake, unsoundness of mind or otherwise". There is a key distinction to be made at the outset between arranged marriages and those made under duress. The advocates of arranged marriages point to relationships based upon compatibility and shared values as being more fulfilling and successful for the couple and indeed the family involved. Indeed the divorce rate of 40% in the UK would prompt a whole article in itself.
The key difference between an arranged marriage is free will. Whilst in the case of an arranged marriage, the families of those who are marrying are involved in the process, the final decision lies with those who are to be married. Indeed the Universal Declaration of Human Rights Article 16 section 21 supports this philosophy, confirming that “a marriage shall be entered into only with the free and full consent of the intending spouses”.
Forced marriage is therefore not only against the law, and in breach of the individual’s Human Rights, but a form of domestic violence and child abuse. It may include:
• Physical and sexual violence
• Threatening behaviour
• Mental and social pressure, including emotional blackmail
• Restrictions on lifestyle such as limitations on movement, association, dress code, education and career choices
• Oppressive financial control
• Other demeaning, humiliating and controlling behaviour
What is a forced marriage?
A marriage becomes forced if there is any duress, whether physical or mental, to marry without free and valid consent. At one time it was held that a marriage was voidable on the ground of duress only if it could be shown that there was a threat of immediate danger to life, limb or liberty. In the case of Hirani v Hirani (1982) 4 FLR 232 the Court of Appeal reversed the refusal of the judge to grant a decree, precisely on the basis that he had erred in law in applying that test. Lord Justice who explained the law in clear terms as it relates to forced marriage – “The crucial question in these cases, particularly where a marriage is involved, is whether the threats, pressure, or whatever it is, is such to destroy the reality of consent and overbears the will of the individual”.
It is a question of the individual’s belief, a person knowing when they are being forced into marriage against their will, even if their formal consent has been given it is of no legal effect if forced. Indeed it was a Greek poet, Euripides who wrote in Hippolytus “my tongue has sworn, but no oath binds my mind”. The same in principle should apply to a forced marriage.
Some victims of forced marriage rarely know about these provisions or are unable to use them for their protection. The requirement that a petition for nullity must be sought within three years often means that women are unable to rely on these provisions. Often married young, they can lack the self-confidence to challenge their situation in these first years of marriage. Additionally, women married abroad may often face insurmountable difficulties in financing proceedings, providing instructions and evidence, remaining protected during the proceedings and having the decree of nullity recognised and enforced in the country in which they live.
Baroness Scotland, the then Attorney General, agreed when, as a Home Office minister in 2006, she initiated a national publicity campaign to highlight that forced marriage is “a form of domestic violence and human rights abuse. Forced marriage affects children, teenagers and adults from all races and religions However at that time the Home Office did not bring in any specific legislation, announcing in June 2006 on the Home Office website that the Government’s Forced Marriage Unit consulted with 157 organisations and individuals on the issue, and based on that input recommended that no law should be written at this time specifically outlawing forced marriage. If such a law were written, the unit was told, the already secretive practice could be driven further underground, making it harder to find and protect women victimised in this way and more people could be hurt in the process.
The government emphasised a focus on education, support services and the use of existing legislation concerning domestic violence and bullying. Hence the symptoms of forced marriage, including the mental and physical pain were to be addressed, yet forced marriage itself could not be classified as a crime.
In March 2008 the Guardian Newspaper published an article stating that at least 3,000 young women in Britain are victims of forced marriages each year. The first study ever conducted in the UK into the prevalence of the custom shows that there are far more victims, spread across all ethnic minority groups and communities, than official figures suggest. According to the Foreign and Commonwealth Office, Forced Marriages Unit (FMU) website, approximately 85% of those people in a forced marriage are women, 15% men, with ages between 13 and 30.
Nobody knows exactly how many people are victims of forced marriages, but the Forced Marriage Unit dealt with more than 1,300 similar cases during the first three quarters of 2008 – an increase of 79% on 2007.
The introduction of new legislation in November 2008, namely the Forced Marriage (Civil Protection) Act 2007 to protect victims of forced marriages, aims to eradicate the practice.
At its introduction the Justice Minister Bridget Prentice said: “This new law is a powerful tool that will help ensure that no-one is forced into marriage against their will and those already in such marriages will receive protection.”
Potential victims are now able to seek advice on whether they can obtain an order from the court to prevent the forced marriage from taking place. The Act itself is fairly short to read, with the introduction stating the purpose being “to make provision for protecting individuals against being forced to enter into marriage without their free and full consent and for protecting individuals who have been forced to enter into marriage without such consent and for connected purposes”.
Under Section 63 (the one and only section to this act, although with subheadings) individuals and the police can apply for a Forced Marriage Protection Order which prevents families from seizing passports or intimidating victims into travelling abroad. In addition, the Order could force families to reveal a missing victim’s whereabouts to Police. Where the victim may not be in a position to seek advice themselves, friends, relatives and other groups, including local authorities may also seek advice and make an application on their behalf. Contact details for the FMU follow at the end of this article. The law threatens those responsible for forced marriages with prison sentences of up to two years.
Thus Section 63 provides the court with a wider discretion to deal with each individual forced marriage case, increasing the court’s power to employ civil remedies flexibly offering protection to victims but without criminalising members of the family.
The new Act needs to be seen in the context of the court’s range of common law and statutory civil powers that can be used to protect children who are being forced into a marriage. For example, section 31 of the Children Act 1989 provides for care and protection orders to be made by the courts, on application by a local authority. While such an order is in place, no person may remove the child from the UK without the consent of every person with parental responsibility, including the local authority.
The court’s wardship powers have been utilised to protect minors from forced marriage overseas, where they have been being held against their will, and to facilitate a safe return to the UK. The Children Act also confers duties and powers on local authorities in respect of providing accommodation for young people in circumstances where they are in need, or where it would help safeguard a child’s welfare.
Whilst it is the nature of the beast that law evolves somewhat slowly the impact of the Forced Marriage was seen in December 2008 soon after it became law. The media reported the case of NHS doctor Humayra Abedin, who says she had been held captive by her parents ahead of a forced marriage, in Bangladesh. A Bangladesh court’s decision to order her release was hailed as a "landmark" ruling by her lawyers for two reasons.
Firstly, because the judge in Bangladesh was prepared to go public and emphasise the "civil wrong" which had been done against her, and secondly, because a British High Court order served under the new Forced Marriage Act was mentioned at the Dhaka hearing. Although the UK injunction against Dr Abedin’s family had no "directing enforceability" in Bangladesh, the legislation did have a bearing as it was of judicial note as an expression of the principle that legal remedies should be available. Importantly the UK legislation was recognised outside the UK where many of the forced marriages are said to take place involving persons with a view to their coming to these shores.
A forced marriage is just one type of abuse recognised by the law. Domestic abuse is defined as any incident of threatening behaviour, violence or abuse between adults who are in or who have been in a relationship together or between family members. Domestic abuse does not always mean physical violence but can also include constant telephone calls and texts which are a nuisance or of a threatening nature.
If a victim feels threatened, abused or fears for their safety and the safety of their children then there are ways to gain protection. Orders are obtainable from the court which can remove the abuser from the home, ensure that they stay away and prevent them from further abuse. If there are also financial concerns then there is the possibility of obtaining orders that would mean the abuser may have to continue to pay for outgoing expenses of the victims.
There also needs to be more determined efforts within all communities to end the practice, so that forced marriages become a matter of shame and humiliation for parents, instead of being a matter of pride. With regards to research undertaken by the Home Office, many of the victims of forced marriage were third-generation British, victims of a custom that is being handed down through the ages. On the other hand there are particular concerns about the women who are brought up outside the UK, are married overseas and then brought into the country as brides at a young age.
Maybe this is one reason why the Home Office has consecutively raised the age for spouses or partners coming to the UK to 21 years. Indeed when the Home Office first raised the age of the partner from 16 to 18 in 2003, Baroness Scotland stated "We are going to protect all British citizens who are put in this position irrespective of their religion, their faith, their ethnicity or their background."
That said, in some countries marriage does take place at a younger age, not on the basis of any force but because of the given culture, and it is by no means an unhappy relationship that ensues.
Effective legislation therefore needs to be supported by education, where race and creed are not used as an excuse to avoid the issue. The balance is sometimes between the pain of the individual and the pain of the family, the shame of seeing a marriage end or the complicity in it continuing. In the same way that one should recognise arranged marriages as having a history of success and certainly a current success that surpasses those based on romance from the outset, it is surely important to recognise the rights of the individual when that choice is not available.
If you are worried you might be forced into marriage or are worried about a friend or relative contact the Foreign Commonwealth Office, which is a joint-initiative with the Home Office, or call them on 020 7008 0151 (9am – 5pm Monday – Friday), emergency number 020 7008 1500 (Address King Charles Street London SW1A 2AH). Website address http://www.fco.gov.uk/en/fco-in-action/nationals/forced-marriage-unit/, email address [email protected]
Refuge 24-hour National Crisis Line Advice and support on domestic violence, plus a special outreach service for women who do not speak English as a first language. Telephone 0808 808 9999 (open 24 hours), website http://www.refuge.org.uk/
Reunite. A leading charity specializing in parental child abduction. Their main objective is to provide a 24 hour telephone advice line offering practical advice and information on the issue of parental child abduction and international custody disputes. Reunite’s advice is impartial and confidential to one or both parties involved in the dispute, although they are unable to negotiate on your behalf. Telephone 0116 255 6234, website http://www.reunite.org/
Rights of Women. Legal advice on domestic violence and harassment. Referrals are to sympathetic women solicitors. Telephone 020 7251 6577, website http://www.rightsofwomen.or.uk/
Shelterline. This refuge provides emergency access to refuge services and is targeted at homeless people. It can only offer hostel facilities and is therefore not suitable for families. Telephone 0808 800 4444 (24 hours).
Victim Support offers information and support to victims of crime, whether or not they have reported the crime to the police. All help given is free and confidential. You can contact Victim Support direct or ask the police to put you in touch with your local group. Telephone 0845 30 30 900, website http://www.victimsupport.org.uk/
Women’s Aid National Domestic Violence Helpline. This service can give the individual support, help and information. They will discuss the practical and legal options available and, if the woman wishes, refer her to a local Women’s Aid refuge and advice service or other sources of help. All calls are taken in strictest confidence. Telephone 0808 2000 247, website http://www.womensaid.or.uk.
Berkeley Square House,
Mayfair London W1J 6BD.
Telephone: 020 7887 7550,
Fax number 020 7887 7555
Email [email protected]