Forced Marriages and UK Law - Essay Example

? Forced Marriages and UK Law This paper focuses on forced marriage as a component of UK family law. The paper identifies that forced marriages are marriages that are arranged through duress. In the UK, this is common amongst migrant communities especially migrants with origins to the Indian subcontinent and the Arab world. The fundamental UK legal system implies that forced marriages are null but voidable. In an attempt to prevent forced marriages, the UK government came up with the Forced Marriages (Civil Protection) Act, 2007. The act enables victims to come forward and claim some degree of protection from the police and courts. The Forced Marriages (Civil Protection) Act 2007 is quite limited because it fails to protect victims, particularly those who are too young to report forced marriages. Also, it is quite sensitive to deal with forced marriages as it relates to culture and immigration controls. The paper recommends that a criminal code should be formulated to work hand-in-hand with the Forced Marriages (Civil Protection) Act 2007. This criminal code should protect the obvious persons who are at risk of forced marriages. The criminal code should be reviewed regularly and improved in relation to existing situations from time to time. 1.0 Introduction The UK House of Commons identified that domestic violence and forced marriages are the main challenges to family law in the UK in recent times1. The UK recognises forced marriage as a form of domestic violence and child abuse2. Forced marriages are inherently negative to the UK society as it puts certain people into positions that can be compared to slavery and domestic abuse. However, in spite of the negative nature of this practice, the House of Commons committee reported that “...at present, forced marriage is not a specific criminal offence in England and Wales...”3. This suggests that the Forced Marriage (Civil Protection Act) 2007 has a lot of inherent limitations that make it difficult for it to be used as a tool to check the practice. Also, the fact that forced marriages are permitted in some cultures outside the British Isles and natives of cultures that permit forced marriages are living in the UK legally, it is a difficult issue to handle in the UK's multicultural system. This paper examines forced marriages in the context of UK law. The aim of the paper is to evaluate how sufficient the laws on forced marriages in the UK are. In an effort to attain this end, the following objectives will be explored: 1. An analysis of the concept of forced marriages and its position in legal matters in the UK. 2. An assessment of the law reforms on forced marriages. 3. An evaluation of the sufficiency of the current laws 4. Identification of current proposals on forced marriages and recommendations on how to improve the current system. 2.0 Concept of Forced Marriages Home office defines forced marriage as “... a marriage without the consent of one or both parties and where duress is a factor”4. This therefore implies that forced marriages are cases or situations where two people are made to marry in a situation where one or both of the parties is not willing to participate in the marriage. 2.1 Duress and Forced Marriages The UK social and legal system makes a sharp distinction between forced marriages and arranged marriages5. This distinction is necessary because arranged marriages have a bit of a different legal position in the UK society. This is mainly steeped in the concept of choice. Whereas the parties in an arranged marriage might choose to live within the marriage without any duress, a forced marriage is one where one party is forced or coerced into the whole union. 'Duress' defines the main basis for the definition of a forced marriage. As such, a marriage in which duress is not used to coerce one or both parties into the marriage is valid socially, morally and legally in English law. 2.2 Forms of Forced Marriages There are three main types of forced marriages6: 1. An individual who fears that s/he may be forced to marry in the UK or overseas. 2. An individual who has already been forced to marry in the UK and overseas. 3. A spouse who came to the UK as a result of a forced marriage. The first category of persons involved in forced marriages are those who have a credible fear or are undergoing some form of duress in order to get into a marriage against his or her will. This means that the individual in question must have some credible proof that causes reasonable fear that s/he might be lured into a marriage that s/he does not approve of. This could be mental or physical in nature and it provides the basis for a strong case of forced marriage. The second case is a person who has already been forced to get married against his or her will in the UK or overseas through duress. In other words, the person has already been made to marry a person against his will through some forms of fear initiated by some relevant persons which could be considered to be duress. The third case is the issue of a person from overseas who was forced through duress and threats to get married. And after the marriage or threats, s/he ends up in the United Kingdom. According to the UK border agency, several people get into such unions in order to attain the legal right to enter the UK. However, UK law does not recognise such unions. There are about 1,000 reported cases of forced marriages in the UK each year7. However, some conflicting reports by Revill and Asthama indicates that the figure of forced marriages in the UK could be as high as 3,000 a year8. This means that a vast number of people do not report their cases of forced marriages due to several reasons. Aisha Gills and Anitha report that there are numerous grey areas that make it difficult for the laws on forced marriages to be defined. This is because the whole concept is quite difficult to grasp and until an individual comes forward to make allegations, it is difficult for the state to identify the legal issues and solve it through legal procedures. 2.3 Forms of Duress in Forced Marriages There are several forms that duress takes in forced marriage cases9. They include amongst others: 1. Financial manipulation 2. Emotional abuse 3. Threats to send a person back to his or her country of origin. 4. False imprisonment 5. Monitoring of movement. 6. Physical abuse and 7. Threat to kill or injure In a case of forced marriages, most people are manipulated or coerced into marriages that they do not approve of through several activities, usually by family members or close associates. Financial manipulation include a situation where a person is forced through threats to cut financial support if s/he refuses to marry a marriage suitor that they choose. This is quite common in cases where people are studying in institutions of higher learning. In other situations, people go through emotional abuse like insults and other forms of actions that makes the person feel so bad. This could force a person to indirectly bow to the demands of people connected to him or her to marry a given person. Also, in cases where a person does not really have the proper documentation to be in the UK, family members and other connected individuals and parties could threaten to cause the deportation of that person. In this instance, such a person might be forced or coerced to marry a person that s/he does not wish to marry. In other cases, the movement of a person might be restricted for a given period of time because s/he refuses to marry a selected person. This means that the person might be in a situation where there s/he will have a limited motion because of the demands placed upon him or her to marry a given person. Also, people could be monitored because they choose not to marry a person that has been chosen for them. This is the situation where a person gets trailed by people who have chosen a suitor for him or her. This could lead to a situation where the threats would be spilled over to the person that the individual has chosen as a future marriage partner from his or her own freewill. Such threats add up to the duress and continue to promote their imposition of a marriage candidate on the individual in question. Sometimes people use physical abuse like assault and battery to get people to kowtow to their demand for them to marry a certain person. This kinds of assault are meant to create fear in the individual and cause them to tow the line that they have determined for them. Finally, there is the use of death threats in many cases of forced marriages. These threats are made to get people to follow the demands of marrying a certain person. They put fear and panic in the person and get them to play according to their rules. 2.4 Occurrence of Forced Marriages Forced marriages in the UK are often initiated by close family members and relatives10. This means that the threats and the duress is initiated by close family members with the view of getting their relative to marry a given individual that they have chosen for him or her. Such family members reject any other choice of the individual in question and/or any objections that the person raises in terms of entering the marriage that they propose. Welchman and Hossain identify forced marriages under the broad category of honour crimes. They define honour crimes as “a variety of manifestation of violence against women, including 'honour killings', assault, confinement or imprisonment and interference with choice in marriage where publicly articulated 'justification' is attributed to a social order claimed to require the preservation of 'honour' vested in male (family and/or conjugal) control over women and specifically women's sexual conduct: actual, suspected or potential”11. This situation is steeped in a patriarchal system where people believe that women are the 'properties' of their fathers. Based on this ideology, fathers and the male members of the family feel they ought to ensure that the sexual and marriage affairs of female members of the family are chosen for them according to the beliefs of the males. Iddriss and Abbas also identify that the prevalence of forced marriages in the UK has been increased by post-colonial migrations into the UK12. This implies that the migration of people from foreign cultures has contributed significantly to the increase in the number and rate of forced marriages in the UK. Statistics from the Forced Marriage Unit of the UK Police indicate that the following communities and countries of origins define the number of people involved in forced marriages13: Country of Origin Percentage of Total Reported Cases Pakistan 57.00% Bangladesh 13.00% India 11.00% Other 4.00% Middle East 3.00% North East Africa 2.00% Turkey 1.00% Afghanistan 1.00% Europe 1.00% This indicates that the prevalence of forced marriages is high amongst British residents with origins from the Indian Subcontinent. This is because most of the cases are from Pakistan, India and Bangladesh. Also, a significant proportion of these cases originate from the Middle East and North Africa. 2.5 Motivation for Forced Marriages The UK police announced in 2008 that the most popular reasons for forced marriages include amongst other things14: 1. Family's attempt to prevent inappropriate sexual relationships like homosexuality by choosing a 'suitable' spouse for their relatives. 2. Prevention of unwanted social vices and social behaviours like drug abuse through forced marriages. 3. Prevention of unsuitable ethnic and religious relationships that could lead to inappropriate marriages like interfaith marriages. 4. Protecting the honour of the family, known amongst Arab communities as 'izzat' 5. Attempt to strengthen family links through forced marriages. 6. Attempt to achieve financial gains by forcing a family member to marry a rich person. 7. Protection of religious and cultural ideals of families. 3.0 Legal Position of Forced Marriages in the UK As of the year 2011, there was no clear law that banned forced marriages in the UK15. Rather, a collection of laws, statutes and precedence defined the legal position of forced marriages in the UK. 3.1 Legal Position of Duress In the case of Szechter V Szechter16, it as held that for a marriage to be defined as a forced marriage, duress can be defined as follows: 1. The will of one of the parties to the marriage has been overborne by a given and reasonable fear. 2. The fear should be based on a threat that causes immediate danger of physical or fatal injury or false imprisonment. This means that duress needs to be one that is based on some kind of fear which is reasonable and is defined by a given act that is capable of being carried out to cause some kind of injury to a person. As such, if the danger does not really exist, a case of forced marriage cannot be put before the court. In Hirani V Hirani17 a 19 year old Hindu dating a Muslim man was told by his parents that if she goes ahead to marry the Muslim man, they would ostracise her from the family. And they demanded that she marries a Hindu man of their choice. It was held by the court that a balance should be drawn between duress and genuine parental authority which could always lead to some kind of threats which were subjective. As such, the issue of defining threat in forced marriage cases is also opened to a number of possibilities. 3.2 Existing Statutes Although there is no direct law in UK banning forced marriages, the issue of forced marriages can be handled under the marriage laws of the UK18. The UK Marriage Act 1949 and the Matrimonial Causes Act 1973 states that marriages can only take place if the two parties give their valid consent prior to the marriage. As such, if there is a mistake, duress, unsoundness of mind or some other factors that show that consent was not given, the marriage is nullified. This means that forced marriages are null in UK law since there is a fundamental issue of duress involved in forced marriages. However, forced marriages are voidable. This implies that a party claiming duress in the marriage can either opt out of the marriage or uphold the marriage. However, there is no real statute that bans forced marriages outright. Due to the civil nature of marriages, forced marriages are not covered under criminal law. There is no specific criminal provision that renders forced marriages illegal19. However, when a case of forced marriage is brought up, there could be charges preferred under the criminal code in areas like kidnapping, child abduction, false imprisonment, assault and battery, blackmail and threats to kill. Although the law seeks to keep people protected and in check, it is very difficult for any action to be taken against forced marriages. This is because of the social and familial element of these cases which makes parties sympathetic to the actions of people who are involved in this act. Most of such persons are relatives and as such, it is difficult for action to be taken against people for perpetration of forced marriages and conspiracies leading to such situations. This shows a clear dent in the criminal justice system because most people can infringe on other persons' rights and if there are no laws criminalising such acts, the criminal justice system is kept deficient. Aisha Gill identifies that most of the actions taken in situations of forced marriages are in contravention with the European Convention on Human Rights and the Human Rights Act 1998. This also means that people can exercise their rights to family lives and take independent decisions on who they want to marry based on these laws. This provides yet another credible route through which a person can take a legal action against another person who tries to force him or her into a marriage that is against his or her will. 4.0 UK Legal Reforms on Forced Marriages After numerous incidents that occurred in the UK, there was a proposition that forced marriages should be banned and contained by a new legal statute that reflects current rends in the UK20. This culminated in the Labour party passing the Forced Marriages (Civil Protection) Act, 2007. This Act was meant to provide a civil approach to protecting victims of forced marriages. This was to prevent the obvious issues with criminalising forced marriages. The Forced Marriages (Civil Protection) Act 2007 provides a general legal framework for the protection of victims of forced marriages. The Act empowers the Forced Marriage Unit to support and advice victims who have gone through the duress and pressure to marry against their will21. Victims are to report such threats to the Forced Marriage Unit. Once this is done, they will get sufficient protection that will prevent the relevant parties from enforcing their will on them. The Act enables family courts to issue forced marriage protection orders that enable victims to acquire protection22. There were five breaches that were reported between 2008 and 2011 when the Act came into force23. 5.0 Sufficiency of Existing Laws In spite of this same law, the Guardian newspaper reported in the April 9 edition that two five year olds were put into forced marriages in the UK in 2011. Clearly, this shows that the Forced Marriage (Civil Protection) Act, 2007 is very deficient. This is because it can only operate when the victims speak against the forced marriages. However, what could these five year olds to under these circumstances. Clearly, they did not have the power to speak up against the forced marriage. At that age, it is logical to infer that such individuals were not even aware of what marriage is all about. As such, a strong deficiency in the law is exposed in this direction. This raises an obvious need to get a little tougher on people involved in forced marriages. Although there are current debates, the occurrence of forced marriages amongst very young people justifies the need for the criminalisation of the law against forced marriages. First of all, criminalisation will reduce the number of forced marriages. This is because if this act is declared a crime, people will be deterred and they would not venture to take the risk of trying to force people to marry. In the case of minors, if the perpetrators are aware that they will automatically be at odds with the law by arranging such forced marriages for very young people, they would think twice about getting involved in them in the first place. This is because as long as it is civil, one could assume logically that forcing marriages on five year olds will not have any consequences since they cannot take up a civil action against the perpetrators. However, if it is criminalised and the Crown Prosecution Service is made to protect such innocent persons, the whole idea of forced marriages will be reduced drastically. Secondly, the criminalisation of forced marriages will provide adequate protection for victims. This is because victims might always have a weakness in blowing the whistle on close family members. It can be unanimously agreed that it is extremely tough to deal with a case when a woman [most of the victims are women] will go forward to the authorities to report their own blood relatives when they know they would be convicted. Dr. Aisha Gill stated in the Guardian Newspaper that in an interview with the 20 people who were inmates of the Forced Marriages Units refuge centre, 19 of the victims stated that they would not have reported their predicament if they knew the law was a criminal law. As such, it is quite difficult for people to come forward and provide information about their family members in forced marriage cases. However, the issue of forced marriages is causing a lot of problems for people. It is causing hardships and people, particularly women are enduring a lot of inhumane treatments due to it. In the same study by Dr. Gill, six of the 20 victims agreed that criminalising forced marriages would create awareness and encourage the protection of victims. Thirdly, perpetrators of forced marriages deserve to be punished. If the law on forced marriages is criminalised, most people will get their due punishment and they will be deterred from trying it on other people. Also, this will protect the society as it will serve as an example for other people who have similar intentions. As such, the Civil Protection has very strong inherent weaknesses. This makes it quite a weak tool for the combat of forced marriages. However, authorities like Dr. Gill continue to advocate for a civil approach on the act of forcing people to marry but a tough punitive criminal approach for 'honour' killings and similar violence24. Proposals on Laws on Forced Marriages The Great Britain Parliament have had several committee sittings on forced marriages and similar cases over the past decade. In 2008, a parliamentary committee report identified that the root cause of forced marriages is visa connected and honour based25. The therefore recommended that there should be a tougher law on immigration in order to prevent forced marriages from high risk nations. They stated that there should be an increase in the ages for sponsorship of spouses into the UK and also allow spousal visa applications to take more time. The report however acknowledges that the tightening of migration controls is quite controversial. In 2011, it was identified that the issue is also steeped in culture and ignorance26. As such, Parliament reported that there should be more education on the matter in order to encourage victims to come forward and report cases of forced marriages. Debate is still going on in relation to reforms and other changes to UK law in order to reduce forced marriages. These debates include legislative and legal reforms, preventive reforms and protective reforms. However, there is the need for more consultation and discussions before a fair legal framework can be instituted firmly. 6.0 Recommendations on how to Improve the Legal Position. In my opinion, there should be some criminal elements of the Forced Marriage (Civil Protection) Act, 2007. This should be configured to protect very vulnerable persons like people less than 12 years old. The Criminal portion of the law should be updated after more and more consultations are carried out. This will provide an incremental improvement of the law to appropriately deal with emerging issues in forced marriage. 7.0 Conclusions Forced marriages involve the use of threats to get people to enter marriages against the will. Existing UK laws on marriage render such marriages null but voidable. There is no existing criminal liability for partaking in the imposition of forced marriages. Legal reforms have created a civil provision to combat forced marriages. However, this leaves much to be desired. This is because there is a general problem of fear and sympathy for perpetrators by victims because of the familial links that exist between them. In order to prevent forced marriage, it is recommended that there should be a separate criminal law that would complement the criminal statute. Debate should however continue on this subject. This is necessary because there is the need for new issues and situations in the UK society to be integrated into the legal statute to protect the vulnerable appropriately at every point in time. Bibliography Buchler A. (2011) Islamic Law in Europe: Legal Pluralims and its limits in European Family Law Surrey: Ashgate Publishing. Craig G. (2010) Child Slavery Now: A Contemporary Reader London: The Policy Press. Crown Prosecution Service (2010) Honour Based Violence and Forced Marriages: Guidance on Identifying and Flagging Cases. [Online] Available at: http://www.cps.gov.uk/legal/h_to_k/forced_marriage_and_honour_based_violence_cases_guidance_on_flagging_and_identifying_cases/ [Accessed: 26th May, 2012] Gill A. (2010) “Reconfiguring 'Honour' based violence as a form of Gender Violence” in Honour, Violence, Women and Islam London: Taylor and Francis Gill, A. and Anitha, S. (2011) Forced Marriages: Introducing a Social Justice and Human Rights Perspective London: Zed Books. Gill A. and Sapnara, K. (2012) “Forced Marriages Blight Lives But Criminalising Them Will Not Work” Guardian News Paper April 9, 2012. [Online] Available at: http://www.guardian.co.uk/commentisfree/2012/apr/09/forced-marriages-criminalising [Accessed: 26th May, 2012]. Great Britain House of Parliament (2008) Domestic Violence, Forced Marriage and 'honour' based Violence: Sixth Report Norwich: The Stationery Office. Great Britain Parliament (2011) Forced Marriages: 8th Report of Session: 2010 – 2011 Norwich: The Stationery Office. HM Government (2008) Forced Marriages: The Right to Choose London: The Stationary Office. Iddriss, M. M and Abbas, T. (2010) Honour, Violence, Women and Islam London: Taylor and Francis Revill J and Asthama, A. (2008) 3,000 women a year forced to marry in the UK: The Guardian Newspaper 8th March, 2009. Sharp, N. (2011) Forced Marriages in the UK: A Scoping Study of the Experiences of Women from Middle Eastern and North East African Communities London: Refuge Publishing. Spencer, S. (2011) The Migration Debate London: Polity Press Welchman, L and Hossain, S (2005) 'Honour' Crimes: Paradigms & Violence Against Women London: Zed Books. Cases Hirani V Hirani [1982] FLR 332 Szechter V Szechter [1971] P286 Statutes Forced Marriage (Civil Protection) Act 2007 Matrimonial Causes Act 1973 UK Marriage Act 1949 Read More