Available Legal Options for Use in the Fight against Forced Marriages in the UK - Research Paper Example

FAMILY LAW Faculty al Affiliation Introduction The Council on Foreign Relations reveals that in the developing nations, children marriages are rampant, and excessively touch girls while jeopardizing their lives and livelihoods. The major contributing factor is the existence of deep-rooted poverty and traditions that, in the end, violate the Universal Declaration of Human Rights, Article 16 section 2.2 3 4 Forced marriages also endanger economic development and stability as they reduce the age that daughters should get married, thus do not continue with their education to contribute to economic development.5 Furthermore, forced marriage propagates exploitation and violations that discriminate against women and girls.6 However, forced marriage among children is not limited to regions or culture, but is practiced in varying levels across the globe. The Great Britain, Parliament, and The House of Commons7 research findings indicated that in the UK, the Pakistani, Indian, and Bangladeshi communities had the highest rates of forced marriages with about 86% female and 14% male reported cases between 2009 and 2010. In order to deal with this international phenomenon, the international conventions have been put in place, arguing that below the age of eighteen years, one has not attained adulthood and are not mature to choose whether to get into marriage. However, Eboe-Osuji8 reveals that the International community has never associated any criminal sanctions against forced marriages. Additionally, children are also not aware that marriage at tender ages can result in psychological, emotional, and physical harm.9 Marriage before or after eighteen years are common forms of forced marriage and are characterized by one or both parties disapproving the marriage, but unable to act because of threats from parents.10 11 12 Consequently, the disapproving party feels psychologically or physically pressured, and this overbears their will.13 Phillips and Dustin14 emphasize on the role of absent freedom, and full consent in forced marriage as this distinguishes it from arranged marriage where both parties consent to the marriage idea and no parties are coerced to consent. Today, Wales and England recognize arranged marriages in their laws, but consider forced marriages as a bleach of human rights, child abuse, and domestic violence.15 Over the past decade, the issue of forced marriage has risen tremendously, and the government had to intervene through a new set of laws intended to lower the statistics through proposed criminalization. Since 2009, the number of forced marriage cases has lowered from 1682, 1735 in 2010, 1468 in 2011, and 1485 in 2012. However, these statistics may not be reliable since most victims prefer to remain silent, thus no reported cases are counted.16 This paper evaluates the various available legal options for use in the fight against forced marriages in the UK both before and after the occurrence. Cases behind Forced Marriage Act In the UK several high profile cases have facilitated the establishment of legal options to deal with forced marriage cases. Although the existence of forced marriages dates as early as the existence of marriage, the high profile case of Rukshana Naz in 1999 brought the issue into the limelight and introduced a political angle. Rukshana Naz was murdered by her brother after leaving her marriage arranged when she was 15 years old.17 The Labour Government‘s response was through the formation of a self-governing working group.18 This group recommended some guidelines and strategies and some were implemented. Some implemented guidelines were those issued to social workers and the police in 2003 and 2002 respectively. As the primary professionals in the implementation of the strategies recommended to deal with forced marriages, the social workers and the police were equipped with victims or potential victims’ protection.19 20 21 The emphasis on the protection of forced marriage victims was brought about by the fact that these victims survive in marriages characterized by violence. Additionally, forced marriages where the family of the girls support, leaves them with their marriage partners as the only social support.22 23 24 This situation is complex and for the police and social workers to be deployed, victims such as Rukshana Naz would be reduced through first understanding what caused forced marriages, by whom, and for what reasons such cases went unreported. In Rukshana’s case, the mother and brother’s reason for killing her were that her fate had been decided through her Kizmit.25 26 27 Naz’s brother and mother were sentenced with life imprisonment at Nottingham Crown Court in 1999.28 Nullity of Forced Marriage After marriage, a declaration of nullity is viewed as a necessary accusation that a person’s marriage was not valid for some reasons evident in during the day of exchanging the marital consent.29 As a result, a petition for nullity declaration must offer a reason or grounds for petitioning under which the marriage is being defied. Some of the main causes of marriage nullity defected consent, the existence of a hindrance that claimed one or both parties unqualified for marriage, and or questionable marriage celebration. For instance, in P v R(Forced Marriage: Annulment: Procedure) [2003] 1 FLR 661 where forced marriage genuinely existed, the court granted appropriate, nullity decree and removed stigma present in the announcement of a divorce where the woman was married. In this case, the petitioner was forced to marry a cousin, and was threatened that she would receive severe punishment for failure to go through the wedding. Like the Hirani v Hirani (1983) case missed, the petitioner was viewed as overborne, thus denoting duress. However, some situations indicate non-existence of forced marriage such as the Sh v NB [2009] EWHC 3274 where a woman who had willingly agreed to get married at the age of 16 years, claimed to have been forced, blackmailed, and pressured only for the court to proof her willingness and freely agreeing to get married. Closely related to this case was the B v I (forced marriage) [2010] 1 flr 1721 where the petitioner claimed to have been forcefully married to the defendant and that that was not recognizable under the marriage laws in England and Wales. The Matrimonial Causes Act 1973 s. 11(a) and s. 12 Besides protecting children or young people gotten into force marriages, adults into forced marriages, are protected through Matrimonial causes act 1973.30 The Matrimonial Causes Act 1973’s Section 11 annuls marriages in the UK on the grounds where one party is under age, the intermarriage disregards some formation requirements, or parties fall within restricted relationship levels. According to Kay31 the Matrimonial Causes Act came at a time when victims of forced marriages in Wales, Northern Ireland, and England needed remedies. In the Family Law Act of 1996, the Forced Marriage act offers 19 sections that generally offer defence contrary to domestic violence. The implementation of the forced marriage act sought to take a civil approach unlike a criminal approach. This was aimed at enabling victims to seek for protection since there would be no reporting of family members to the police. The act has several sections all aimed at ensuring that 16 years remain the minimum age upon which a person can provide consent to marriage, contrary to which it is considered as forced marriage. Matrimonial Causes Act 1973 Section 11 In Britain, forced marriage can be between two British residents, or between a resident and an immigrant, or even between immigrants. In most cases, forced marriage victims are girls, but this does not mean that males are not forced into marrying as well.32 Wong reveals that about 15% males are forced into marriage in the UK, while Indians and Pakistanis are the most affected ethnic groups followed by groups from the Middle East, Europe, and Africa. According to Legislation.gov.uk, the Section 11(a) of the forced marriage act outlines conditions under which the marriages become forced marriages, hence void before the law. First, the Act voids any marriage where the parties involved are within forbidden relationship degrees. Harragin33 highlights the main condition that causes prohibited relationship levels as including two people such as a step children, child of a former spouse, siblings, guardian, parent, grandchild, uncles, and aunts among others. In the UK, the annulment of marriages involving these groups of people is automatic as the marriage cannot be legal.34 Void marriages in the UK are prohibited as they involve family members or people with blood relations or affinity. Due to the biological issues associated with blood relations, void marriages are considered as sources of genetic disorders inherited from parents and that could easily be elevated by partners35 from similar genetic pools. Amongst Pakistanis and Bangladeshi immigrants, marriages between cousins are common, despite the existence of the forced marriage act. In order to deal with them, the UK government believes that those engaging in such marriages should be informed of the consequences such would have on their children.36 In addition, any marriage is automatically void if one of the parties is not yet sixteen years old. In the UK, sixteen is the minimum age for marriage so as to prevent men from engaging in sexual intercourse with younger girls and to provide a ground for criminal prosecution.37 In addition, the age of sixteen was put forth in order to make it identical to the age of marriage. With this similarity, a celebrant can offer to marry the couple even without the parental or guardian consent provided the age of sixteen is achieved. In addition, the consent of a guardian or parent is needed and not available for reasons such as disability, inaccessibility, and absence, the consent does not need to be dispensed.38 Finally, the automatic voiding of marriage could be because of not complying with the necessary marriage formalities as a way of ensuring that the parties involved have the ability to marry and agree to do so. This is crucial since the marriage does not have any hindrance, and that the marriage gains certification and registration that is had occurred. Furthermore, failure to comply with set formalities could result in undermining marriage validity out of knowingly and wilfully disregarding such requirements.39 The best case whose decision was founded on the failure to comply with formalities was that of Royer and Bonsignore where in both cases, the perpetrators were deported for their failure to comply with formalities regarding the control of aliens.40 Matrimonial Causes Act 1973 Section 12 Besides becoming void, marriages are highly likely to become voidable especially where no consummation has been done to the marriage; the respondent suffered from vulnerable diseases; and an interim gender recognition certification has been attained.41 One voidable marriage case was Singh v Singh 1971 2 WLR 963 where a 17 year old girl was forced into marriage by her parents to a man she had never met and only went ahead because of her respect to them.42 43 44 However, she refused to consummate her marriage and her petition for a decree of nullity on grounds of being pressurized was refused. In addition, voidable marriages are can be due to the absence of one of the parties capable of providing valid consent, or where the consent was invalid due to mental illness or unsoundness. Issues Regarding Matrimonial Causes Act 2007 However, the nullity of marriage is suppressed when the victim of forced marriage has their consent constrained by reasonable fear. Szechter v Szechter 1971 2WLR45 46 47 case involved forced marriage that the courts agreed, given that the Polish lady in question was imprisoned and her life in Poland was in danger. In order to have her leave Poland and prison, forced marriage was consented. A duress decree was also issued based on the fact that the woman’s health was endangered by her being in prison. Another similar case was that of 48 Parojcic v Parojcic 1958 case also had the jury accept the reasons provided as sufficient duress for a decree to be granted. In order to protect the refugee girl from getting back to Yugoslavia, her father forced her to marry a man immediately they arrived there. However, Rodgers 49 revealed that not all forced marriages result in the duress decree such as that of Hussein v Hussein 1971. In this case, forced marriage was based on the respect the bride felt for her parents and the court revoked it for being insufficient to compel the girl into marriage. However, the Hirani v Hirani case did not result in the revocation of the marriage since the family of Hirani threatened to throw her out of their lives and home. This was considered an actual threat to the limb, life, or liberty of Ms. Hirani and overbore her will.50 51 52Through the Hirani v Hirani case, the UK is guided as to the amount of conduct that is considered as an extreme case of going beyond merely arranging her marriage to exceeding the threshold of duress or decree by disowning her and turns her away from home for not agreeing to pre-arranged marriage.53 54 One of the main preliminary formalities required for parties to have a valid marriage is attaining a certificate from the superintendent registrar providing them with marriage approval. In addition, the parties must prove that there are no lawful hindrances to their marriage.55 During marriage also, the Matrimonial Act requires that the parties involved are not in any marriage or other form partnership that is legally recognized. The law in England and Wales prohibits the practice of polygamy marriage.56 Other issues associated with this act are that, in the UK, forced marriages involved girls as young as nine years and those on or above 35 years. For instance, Pakistan and Muslim in Northern Ireland are the most affected since a girl between ten and twelve years is considered old enough to get married. These victims were not well protected by social workers and other deployed agencies causing and more girls falling into forced marriages, to the extent of under reporting such issues. Consequently, more girls and women end up being victims whose main assistant is the government and other non-governmental agencies who introduce the urgency needed to deal or handle forced marriage situations.57 Forced Marriage (Civil Protection) Act 2007: Article 8 Given the shortcomings of the Matrimonial Causes Act, the forced marriage Act was introduced to ensure that it was possible for any adult or child to apply to the emergency protection order under Child Act of 1989.58 This has made it possible to effectively handle cases regarding children who are unwilling to be taken away from the jurisdiction for reasons of marriage. Besides children, the High Court in the UK inherently protected adults who are vulnerable to forced marriages. However, in cases where it is not possible to prevent forced marriage, the victim is free to use the Matrimonial Causes Act 1973 to nullify the marriage as voidable on the basis that the petitioner never validly agreed to the marriage like in the case of Hirani v Hirani 1983.59 The case was characterized by pressurizing the victim into an arranged marriage in ways that outdo their will and destroys the consent of reality. For the victims of forced marriages, the Forced Marriage Act offers the ability to petition for a marriage annulment and not divorce. Unlike divorce, annulment only introduces lesser stigma to the victims. The major drawback to the effective utilization of the Forced Marriage Act is that very few women have the capacity to report such cases, while others just lack the confidence. The only drawback of using the Forced marriage act to obtain a marriage annulment is that the marriage is considered non-existent and no financial orders are issued under the Matrimonial Causes Act. However, Forced Marriage Act involves commission of offences such as blackmail, harassment, rape, murder, child abduction, bodily harm, threats to kill, and sex and rape, are all regarded as criminal offences. For instance, in the UK where forced marriage involves forcing the victim to take medication that affects them mentally and physically, then the result in criminal offences against that person.60 Such matters should be reported to the police for further action. However, complications occur where the criminal offence was committed out of UK since the prosecution services is responsible for prosecuting only the offences that occurred within England and Wales. Bibliography Acquino, T, Family Law, Q& A(Psychology Press 2001) Armsterdam University Gender, generations and the family in international migration( Amsterdam University Press 2011). Arneil, B, Deveaux M, Sexual Justice / Cultural Justice: Critical Perspectives in Political Theory and Practice( Routledge 2006). BBC, “What is a forced marriage?” (BBC 2014) Beale H, Chitty on Contracts, 31st edition volumes 1 & 2 (Sweet & Maxwell 2012). Blake S, Julie B, Stuart S, A practical approach to alternative dispute resolution (Oxford University Press 2014) BMA, Doctors Responsibilities in Child Protection Cases (BMA, 2004) BMA, Domestic Violence (BMA 2007) Brandney A, Duress, Family Law and the Coherent Legal System(1994) Brandon J, Salam H, Center for Social Cohesion, Crimes of the community : honour-based violence in the UK (Center for Solcial Cohesion 2008) Burke J, “Love, honour and obey - or die.” The Observer (22 October 2000) Burrows A, English Private Law (Oxford University Press 2013) Burton F, Family Law (Routledge 2011) Delmas-Marty M, The European Convention for the Protection of Human Rights : international protection versus national restrictions (Nijhoff 1991) Department for Education and Skills, Young People and Vulnerable Adults Facing Forced Marriage (The Foreign and Commonwealth Office 2004) Department of Justice, Annotated Bibliography on Comparative and International Law relating to Forced Marriage (7 January 2015) Duddy J, What Are crimes Of Honour And How Is It Impacting British Society? (12 February 2008) Eboe-Osuji C, International law and sexual violence in armed conflicts ( Extenza Turpin 2012) End Slavery Now, The Impact of Empowering Education on Child/Forced Marriage [2014] Finney M, Wealth management planning : the UK tax principles (John Wiley & Sons 2008) Fitzgerald S, Regulating the International Movement of Women: From Protection to Control ( Routledge 2012) Montgomery J, Nullity (August 11 2003) [2007] Gaffney-Rhys R, “The development of the law relating to forced marriage: Does the law reflect the interests of the victim?” Crime Prevention and Community Safety 16 (2014): 269-293. Gay O, Forced Marriag (Home Affairs Section 2015) Gibillini N, “Forced Marriage Victim, Legal Experts Say Government Action Needed.” CBCNews (13 September 2014) Gilmore S, Lisa G, Hayes and Williams family law(Oxford University Presss 2014) —. Hayes and Williams family law. (Oxford University Press 2014) Girls Not Brides, Human rights and justice [2015] Great Britain, Parliament, and House of Commons, Forced marriage : eighth report of session 2010-12 : report, together with formal minutes, oral and written evidence(Stationery Office 2011) Great Britain; Foreign and Commonwelth Office(Stationery Office 2008) Great Britain; Parliament; House of Commons; Home Affairs Committee. Domestic violence, forced marriage and "honour"-based violence : sixth report of session 2007-08( TSO 2008) Hall Sarah, “Life for honour killing of pregnant teenager by mother and brother.” The Guardian (26 May 1999) Harragin F, “When is Marriage Not a Marriage?” The Review 162 (2013): 47-50. Harris-Short S, Joanna M, Family Law: Text, Cases, and Materials ( Oxford University Press 2011) Hartley T, International commercial litigation : text, cases, and materials on private international law (Cambridge University Press 2009) Heenan S, Anna H, Family Law (Oxford University Press 2013) Herring J, Rebecca P, Stephen G, Great Debates in Family Law(Palgram McMillan 2012) In Brief. Is my Marriage or Civil Partnership legally recognised? (2015) Kay R, The Boundaries of Legal Recognition of Personal Partnerships: Where and Why? (Chester Academic Press 2006) Kohli H, Supreme Court on Hindu law (Universal Law Publishers Company 2010) Laville S, “Social workers failing women facing forced marriage, says report .” The Guardian (8 January 2010) LawComm, Marriage Nullity, Arranged Marriages and Forced Marriages (10 February 2005) Legislation.gov.uk, Matrimonial Causes Act 1973 [2015] Legislation.gov.uk, Matrimonial Causes Act 1973(The National Archives 2005) Maruf A, Forced Marriage: A Study on British Bangladeshi Community(Authorhouse 2012) Open Government, Guidance Polygamous / potential polygamous marriages: SET14 ( gov.uk 2014) Parliament.uk, Lord Hansard Text for 15 Dec 2005(51215-22) (15 December 2005) Phillips A, Dustin M, initiatives on forced marriage: Regulation, dialogue and exit( LSE Research Online 2004) Probet R, Family law in England and Wales ( Kluwer Law International 2011) Proudmand C, “The Criminalisation of Forced Marriage.” Family Law (2012a) 460. Regional Inter-Agency Procedures, Forced Marriage: Safeguarding Children and Young People. Inter-Agency Document, (Regional Inter-Agency Procedures 2005) Rodgers L, Understanding Family Law (Routledge 2012) Sendall J, Family Law Handbook ( Oxford University Press 2015) Telegraph D, “Honour killing jail term too low, says High Court judge.” Derby Telegraph (15 November 2011) UN Women, Comprehensive Approach to End Child Early and Forced Marriage Needed (8 September 2014) Welchman L, "Honour" : crimes, paradigms, and violence against women (Spinifex Press 2005) Welstead M, Susan E, Family law (Oxford University Press 2013) Wong Bik, The Forced Marriage (Civil Protection) Act 2007: A Snapshot ( 21 June 2008) Wray H, Regulating Marriage Migration into the UK: A Stranger in the Home( Ashgate Publishing Ltd 2013). Read More