Annotated Bibliography on Comparative and International Law relating to Forced Marriage

2.0 General Background Information

The British Foreign Commonwealth and Home Office defines a forced marriage as a marriage performed under duress without the full and informed consent or free will of both parties. Being under duress includes feeling both physical and emotional pressure.

Forced marriage is condemned as an abuse of human rights in numerous treaties and international documents. However, it is important to distinguish between an arranged marriage and a forced marriage: in an arranged marriage the free and informed consent of both parties is sought and given; in a forced marriage consent is not freely given. All major religions in the world condemn forced marriage. For an overview of the problem of forced marriage, with emphasis on the British perspective, refer to the BBC (British Broadcasting Corporation) and NHS (National Health Services) websites devoted to the topic (BBC, NHS).

Free and informed consent is a requirement for a valid marriage, and a marriage can be annulled and declared void if voluntary consent is not present. Hahlo discusses how lack of consent can nullify a marriage (Hahlo, 1979). The marriage is then treated as if it never occurred, however it is important to note that in Canada, claims for maintenance and support from a former spouse, both with respect to child support and spousal support, can still be brought forth following an annulment. Voluntary consent can be affected by a lack of understanding, mistake, duress, or an improper motive. Turning to the first issue, it is necessary that a party to a marriage have an understanding of the nature of the marriage and its obligations. Although this level of understanding is low and only requires a basic appreciation of the roles of the parties to the union determined at the time of the ceremony, it becomes a primary issue in cases involving an underage spouse (see Section 7.1 on “Child Marriage”). Voluntary consent can also be affected by mistake going to the identity of the other party or the nature of the ceremony. This situation sometimes occurs when marriages take place in a language or jurisdiction which is foreign to one of the parties.

The issue of duress is of particular importance when studying the practice of forced marriage. The case of Buckland v. Buckland, [1967] 2 All E.R. 300 held that there are three factors which are required to show duress: (1) the person must be sufficiently afraid to remove the element of voluntary consent to the marriage; (2) the fear must be reasonable in light of the circumstances; and (3) the fear must arise from external circumstances for which the party is not himself or herself responsible. For a further discussion on consent in marriage, including the cases which developed the common law on consent, see Section 3.

Lastly, the validity of a marriage can be questioned where the parties enter into the union for reasons other than living together in a family environment. The most common reason for this type of marriage is an “immigration marriage” or “limited purpose marriage”, which is discussed in the case law in Section 8. For further background information on consent in marriage, family law textbooks and encyclopaedias give an overview of the primary issues involved.

There are further issues which relate to and overlap with the practice of forced marriage. Dual nationality becomes important when determining a country's response to a citizen who has been forced into a marriage, especially when the marriage involves an overseas dimension. There is still ongoing debate about the extent of power that a country can exercise in aiding a citizen who is a dual national and within their other country of nationality. For more discussion on this topic, see Section 7.2. Another related issue is trafficking in women, discussed in Section 7.3. This topic overlaps with forced marriage because women are often trafficked overseas in order to be sold as wives, and may thus be forced to undergo a marriage ceremony. These are only two of the many issues which are associated with the practice of forced marriage. The suggested research areas noted in Section 1.4 provide some other topics which overlap with the issue of forced marriage, but are not discussed within the confines of this paper.

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