How has the law developed on forced marriage and what measures could be taken to protect victims?
The term forced marriage is defined as a marriage which ‘one or both spouses do not consent to, however it is important to note that duress, also known as the use of threats or violence to coerce an individual into doing something against their own free will, is a major factor in forced marriage.
Forced marriages has becoming a increasing issue in today’s British society as many people still face being coerced into a marriage against their free will. This is arguably depriving an individual their human rights as it does not provide them with the ability to provide their consent. Forced marriage is a growing concern in many cultures and often results of a forced marriage can be server, in many cases resulting in honour killings. Article 2 of the Human Rights Act 1998 provided the prohibition of torture, which in a lot of cases when it comes to forced marriage violence can be used in order to make the marriage happen, which violates the right of prohibition of torture. Furthermore Article 17 emphasises an individual’s human rights in respect of forced marriage as this article prohibits the abuse of an individual’s rights. It remains argued that forced marriage continues to deny an individual freedom.
Under Section 74 of the sexual offence Act 2003, the term consent is defined as ‘if he agrees by choice and has the freedom and capacity to make that choice.’ Forced marriage takes away a person’s ability to consent and can be affected by a number of factors for example in many cultures women did not have any right until recent years, which also mediates a women’s ability to consent.
The case of Kaur V Singh (2005) refers to a case of a young girl from the United Kingdom being taken to India and was forced into a marriage against her will. The importance of this case is that it highlights some of the many methods of duress victims face today. In this case the young female’s family members had withheld her passport from her, denying her the right to return back to the united kingdom, if she did not comply with their demands to marry. As a young individual taken abroad for the first time, is denying her the right to come home a form of further emotional abuse?
Another key issue Forced marriage’s demonstrates is that many forced marriages the occur incorporate child marriages. However, in the United Kingdom child marriage are in fact a criminal offence under Section 2 of the Marriage Act 1949. It is crucial to note that the legal age to get married is 18, with the consent of the parents. This remains a significant issue in society today as it is taking the rights away from a child and is putting them at the risk of significant harm. In many cases young girls of the age of 10 are being forced to marry men that are twice their age. Statistics show that in 2019 the Forced Marriage Unit had 363 cases, which involved victims below the age of 18 years old.
Statistics from the Foreign and Common Wealth Office shows that ‘between 2011 and 2018 the forced marriage unit provided support to an average of 1,359 individual’s per year.’
In 2019 the number had decreased by 10% to 1,355, which still indicates a significant amount of cases related to forced marriage within the United Kingdom. 1,080 of these cases were found to be female victims, leaving 262 cases involving male victims. Despite the high volume of cases reported by the Forced Marriage Unit, many cases remain unknown.
Before 2007 there was no legislation in the United Kingdom that dealt with Forced marriage directly, it was often dealt with under other categories of crime, such as abduction and other offences relating to violence. The reason for this was because forced marriage encompasses the use of violence or the threat of violence being used in order to pressure an individual to get married. However, under the Government guidelines it is stated that the pressure put on an individual to marry against their will now amounts to emotional, psychological and physical abuse.[1] In 1973 the Matrimonial Causes Act 1973 was introduced, including Section 12 which introduced new measure that provided victims of forced marriage the right to end their marriage. Under Section 12 it states that a marriage can be declared null and void, should the use of duress be proven to have occurred at the time the marriage had taken place.
The law around forced marriage over the years has developed and has begun to focus more on making forced marriage a criminal offence. On the 26 of July 2007 the Forced Marriage (Civil Protection) Act 2007 was introduced as a measure to protect victims of Forced marriage. It was initially added to Part 4 of the Family Law Act 1996 and was later put into force. The aim of this was to provide civil remedies for those having to face forced marriages or could be at the risk of forced marriages, such as court orders. Other reasons for which these orders can be sought are to help reveal the whereabouts of an individual who is at risk of a forced marriage or can requires passports to be seized to prevent individuals from being taken abroad. This development also allows for these orders to be made even after the marriage has taken place to protect victims of forced marriage. It is important to note that the courts now have the powers to arrest someone if there is a use of violence or a potential threat of violence being used to force an individual into marriage. The court also have the power to arrest someone that does not comply with any orders that have been granted and can face up to two years imprisonment.
At SMQ we endeavour to support those that are at risk of a forced marriage alongside victims of forced marriage. It is important to SMQ Legal Services to ensure an individual’s rights are not taken away and justice is achieved.
By Hennah Ali
Trainee Solicitor
[1] https://www.gov.uk/guidance/forced-marriage#what-is-forced-marriage
