Annotated Bibliography on Comparative and International Law relating to Forced Marriage

3.0 Nature of Consent

Free and informed consent is a prerequisite to a valid marriage. The principal English case on duress in forced marriage cases was Singh v. Singh (1971) which limited duress in these cases to “fear caused by threat of immediate danger…to life, limb, or liberty”. Due to this limitation, courts refused to classify pressure of the type in Singh as sufficient. This changed with Hirani v. Hirani (1983), which annulled the marriage of a 19 year old Hindu: “the crucial question is whether the threats, pressure, or whatever it is, is such as to destroy the reality of consent and overbears the will of the individual.” An Australian case, In the Marriage of S, held that even more subtle forms of duress than in Hirani can vitiate consent, stating that duress creating a nullity should be broad enough to encompass non-violent but controlling parental coercion.

The Scottish cases Mahmood v. Mahmood (1993) and Mahmud v. Mahmud solidify an objective test of duress. In both cases the court held that what mattered was whether there had been coercion of a person's will such as to vitiate consent, not what form the coercion took. The court also said parents can advise and apply pressure, and this does not necessarily amount to duress since consent can be “reluctant” or “resentful”. Bradney notes that the law on duress in both England and Scotland is still uncertain because of the difficulty of determining when legitimate pressure turns into duress.

1. Bradley, David. “Duress and Arranged Marriages” (1983), 46 Mod. L. Rev. 499.

The principal English case on duress in forced marriage cases was Singh v. Singh (1971) which limited duress to “fear caused by threat of immediate danger…to life, limb, or liberty.” This changed with Hirani v. Hirani (1983), inwhich the marriage of a 19 year old Hindu woman to a man she had never met was annulled. The court held that “the crucial question is whether the threats, pressure, or whatever it is, is such as to destroy the reality of consent and overbears the will of the individual.” Bradley argues that duress in domestic relations law should be wider and more flexible.

2. Bradney, A. “Duress, Family Law and the Coherent Legal System” (1994), 57:6 Mod. L. Rev. 963.

Bradney compares the Scottish family law on duress with the English law on duress, making particular note of the cases Mahmood v. Mahmood (1993) and Mahmud v. Mahmud (1994). There has been a solidification of an objective test of duress, however the law on duress in both countries is still uncertain due to the difficulty of determining when legitimate pressure turns into duress.

3. Phillips, Anne and Moira Dustin. “ UK initiatives on forced marriage: regulation, dialogue and exit” Political Studies 52:3 (October 2004) 531.

This article outlines the relevant UK cases (Singh, Hirani, Mahmood, Mahmud) which developed the law on consent in marriage. Duress involving threats to life, limb or liberty became obsolete, moderated first by considerations of age, sex and financial vulnerability, and later by a broader appreciation of the moral pressures parents can bring to bear on their children, even when the children are of mature age.

4. Ziff, Bruce. “Recent Developments in Marriage and Divorce” (1986), 18 Ottawa L. Rev. 21.

In his discussion of duress, Ziff notes that at that time there had been no Canadian cases, but in the English case of Hirani a marriage was held to have been performed under such duress as to destroy the reality of consent. The Australian case of In the Marriage of S held that even more subtle forms of duress can vitiate consent and duress creating a nullity should be broad enough to encompass non-violent but controlling parental coercion.

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