Annotated Bibliography on Comparative and International Law relating to Forced Marriage

1.0 Executive Summary

1.1 The purpose of the project

A forced marriage occurs when people are coerced into a marriage against their will and under duress, which can include both physical and emotional pressure. A forced marriage is very different from an arranged marriage in which the free and informed consent of both parties is present. Due to its confusion with the tradition of arranged marriage, forced marriage is often associated in developed states with South Asian immigrants, but it is important to remember that it occurs across many cultures and religions. Every major faith condemns the practice and requires freely given consent for marriage, as does the law in most states.

Forced marriage often affects young people, who may be taken abroad on false pretexts, or pressured to marry in order to sponsor their new spouse for immigration purposes. In many if not all instances, it is the parents who are forcing the young person to marry because they see the forced marriage as protecting their child by controlling unwanted sexual interest or behaviour, preventing “unsuitable” relationships, protecting religious or cultural ideals, strengthening family links, or honouring long-standing family commitments. Yet forced marriage is an international human rights violation. Forced marriage is prohibited under a number of United Nations conventions, and many states have taken both legislative and non-legislative routes to combat the practice.

The purpose of this project was to provide an overview of what nations are doing in this area. Since the topic of forced marriage is one which Canada has not yet formally addressed, this report aims to provide an initial comparative review of literature as a foundation for any future research or policy development.

1.2 Methodology

The findings in this paper are based on a preliminary literature review and do not purport to be exhaustive. The goal of the project was to produce an annotated bibliography, with some accompanying narrative, which could provide background information on the subject and a basis for any further research. Completed over a four-month period in the summer of 2006, the research included database searches for books, journal articles, and newspaper articles, as well as internet searches and discussions with prominent academics and practitioners. Since this is an issue which is constantly evolving, the searches which gave access to the most up-to-date sources such as websites and newspaper articles proved to be the most useful. The authors believe that this bibliography includes most of the leading English-language works on the subject. However, since the research was primarily limited to the English language (with the exception of the list of French language sources), it would be important to conduct research in other languages, particularly to determine in greater detail the initiatives of nations which are not primarily English-speaking.

1.3 Highlights

  • Forced marriage is specifically recognized as an abuse of human rights in many United Nations treaties and other international documents. Child marriage is also recognized as an abuse of human rights in numerous treaties, and overlaps with forced marriage because minors are deemed incapable of giving informed consent. As a party to many of these treaties, Canada has an international obligation to address the issue of forced marriage, and to ensure that a prerequisite for all marriages within its jurisdiction is the free and informed consent of both parties.
  • Common law courts have established that duress in forced marriage cases does not have to be confined to physical coercion, and can also include emotional pressure. However, parental pressure will not necessarily amount to duress in all situations because valid consent can be “reluctant” or “resentful”. What matters is whether the will of the individual has been overborne by the pressure. If this is the case, the marriage is not founded on the free and informed consent of both parties.
  • The research on the UK initiatives appears the most useful for to determine possible routes which can be taken in the future due to the similarities and close ties between the two countries, as well as the depth to which the UK has gone in investigating the issue. The British government has demonstrated its commitment to combat the issue by creating a joint team between the Foreign Commonwealth and Home Offices to address forced marriage. This team has conducted research and consultations, proposed legislation, compiled statistics, and arranged support and rescue operations for victims.
  • Other countries have implemented various measures in an attempt to address the practice of forced marriages. Some of these measures include:
    • introducing legislation to criminalize the practice (Norway, Belgium);
    • revising existing offences to criminalize activities associated with forced marriage (Australia, Denmark, Germany);
    • raising the minimum age of marriage (France, Gabon, Indonesia, UK); and
    • tightening immigration laws (Denmark).

There are also a wide variety of support and awareness programs in place for victims. By studying the public response to these initiatives, as well as their impacts, Canada can make a more informed decision about its own preferred action plan.

  • There is very little information about the extent of the problem in Canada . The only evidence of forced marriage at this time is through court cases dealing with nullification of marriage or refugee asylum, although some anecdotal reports exist.

1.4 Implications

Since there is very little information about forced marriage in Canada, it is difficult to determine what steps the government should take to tackle the practice. As an initial step, it is important to compile statistics, testimonies, and other information from non-governmental organizations, women's groups, and victims in order to assess the situation. Using the UK's initiatives as a template, a “working group” or some similar body could be established in order to gauge how the practice is affecting Canadian citizens, and to weigh the various policy options to determine which would be most effective in Canada . Suggesting a particular course of action at this point in time would be premature without this additional information, and could not take into account the particulars of Canada's situation, since they are largely unknown and undocumented. It is only after a more thorough investigation which looks at the frequency, location, and extent of the practice that policy recommendations can be fully measured.

As a preliminary consideration, however, while acknowledging that more information is needed, initiatives which have been introduced in other countries could be examined to promote discussion and determine possible areas for further research. For example, modelling possible initiatives after some of those taken in other countries could include: possibly creating a specific criminal offence of forcing someone to marry; possible guidelines for Foreign Affairs on how to address cases of forced marriage and setting out Canada's position on cases with an overseas element; possibly providing guidance for professionals about forced marriage; even considering providing a framework and funding for support programs and shelters for victims; and perhaps reviewing the manner in which cases of asylum based on gender-based persecution are handled and decided.

In addition to obtaining more detailed information on Canada's situation, further research could be conducted to expand upon specific aspects of what has been covered in this bibliography. Suggested research areas include:

  • Child marriage;
  • Trafficking in women and children;
  • Marriages of convenience and limited purpose marriages;
  • An examination of consent in marriage under the laws of the countries where forced marriage is prevalent;
  • A study of case law to determine how courts have interpreted obligations under the treaties and covenants which address consent in marriage;
  • A thorough study of all case law relating to forced marriage including nullification of marriage;
  • Refugee claims resulting from fears about being forced into marriage;
  • The degree to which marriages performed abroad are recognized and conflict of laws issues relating to recognition of marriages performed abroad; and
  • Further research into the initiatives of nations which are neither English-speaking nor French-speaking, to be performed in one of the official languages of those nations.

1.5 Guide

This bibliography begins by giving background information on marriage and the importance and nature of consent in marriage. It then summarizes the relevant treaties and their applicable provisions. Next, it gives an overview of the various measures which have been implemented by different states and provides insight into the problem within those nations. It then outlines some important topics which overlap with forced marriage such as child marriage, trafficking in women and children, and dual nationality. Lastly, it provides a preliminary list of French-language sources before highlighting the important findings and implications in the conclusion.

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