Marriage has often been jokingly referred to as ‘the old ball and chain’. However what happens when the marriage you enter into is inflicted on you without your consent?
Everyday around the world millions of girls are being forced into marriages against their will. They are threatened, coerced and deceived into situations that may be likened to a form of modern day slavery. Forced marriage occurs when an individual is entered into a marriage without their full and free consent. The consequences of forced marriages are devastating; with physical abuse, sexual assault and family violence a horrifying everyday reality. Victims often find it difficult to leave abusive situations due to immense familial pressure and social stigma associated with divorce or separation. In addition, in communities where there is a higher incidence of forced marriage, there is often a lack of education or access to protective agencies which results in the creation of a vicious cycle.
So what is being done about it?
Forced marriage is a crime under Australian law. Under s.270-7B of the Commonwealth Criminal Code, forced marriage is a criminal offence which carries a four year jail term. This is upgraded to 7 years if aggravated. These amendments were introduced to combat the rising incidences of forced marriage and human trafficking in Australia. However, in reality the success has been limited. This is because the victim is often unwilling to partake in the prosecution of their own family members.
In responding to this sensitive situation, it may be worthwhile examining the UK’s Forced Marriage Unit (FMU) in order to formulate a more effective way to assist the situation in Australia. The FMU provides a telephone helpline that provides advice and assistance to victims. This encompasses the entire scope of the situation, including:
- providing safety advice;
- preventing unwanted sponsorships; and
- in extreme cases, rescuing victims that are held against their will overseas.
The importance of a helpline service, as opposed to criminal prosecution through police intervention is in providing a service to monitor the situation.
A Forced Marriage Order can be granted if there is a risk of forced marriage. There is a criminal penalty of 5 years imprisonment if the orders are not complied with. The benefit of this order is that it is preventative as opposed to the punitive measure as enacted by Australian legislation, and this better reflects an understanding of the delicate family situation faced by victims of forced marriage. The adoption of a similar service in Australia may be a right step in the direction of preventing forced marriages.
In the event that you are already in a forced marriage, Australian law has measures that can help you restore your freedom. Under Section 23(1) of the Marriage Act 1961 (Cth), a marriage will be annulled or declared void by the Family Court if it was found that the marriage occurred as a result of:
- fraud; or
- if one party did not have the mental capacity to consent to the marriage.
This means that if you were forced into a marriage against your will, then you can seek to have your marriage declared invalid under Australian Law.
Although Australia has made progress in addressing the issue of forced marriage, there is still a long way to go.
If you are in a forced marriage or have concerns about the welfare and safety of a friend or family member, please do not hesitate to contact Freedman & Gopalan Solicitors on 02 8917 8700.