Defining and establishing consent

When constructing the definition of forced marriage, drafters should consider how to define and establish consent in forced marriages. Drafters may look to other states’ laws, which have used terms, such as “free,” “full,” “mutual,” “voluntary,” and “informed,” to describe consent. Laws should include the following elements in a definition of consent: free, informed, and not extracted under pressure or vitiated by external factors, such as constraint. Drafters may wish to include legal commentary explaining that consent is absent when family members use “coercive methods such as pressure of various kinds, emotional blackmail, physical duress, violence, abduction, confinement and confiscation of official papers” in an arranged marriage, thus denying one or both parties the option of refusal. (See: Explanatory memorandum, Council of Europe Parliamentary Assembly, Section II.A.1.b.16-17, 2005)

Example: International jurisprudence provides some guidance on elements that do not constitute consent. In the context of the Sierra Leone armed conflict, the Trial Chamber of the Special Court for Sierra Leone found that any “benefits” victims of forced marriage received, such as food, clothing, and protection against rape by other men, did not constitute consent to the forced marriage. (See: Prosecutor vs. Brima, Kamara and Kanu (AFRC Case), AFRC Trial Judgment, Para. 1081, 1092)

Promising practice: The UK defines forced marriage as one without the consent of both spouses that involves duress, whether physical, psychological, sexual or emotional in nature. Caselaw from England and Wales recognizes that emotional duress, external factors outside the person’s control, and threat of immediate danger can constitute duress. UK caselaw has outlined both objective and subjective tests for duress. The court in Buckland v. Buckland (1965) used an objective test for duress. The Probate Court found that there was duress, because the victim felt compelled to marry out of a reasonable fear arising from “external circumstances for which he was in no way responsible.” In Szechter v. Szechter (1970), the Probate Court applied Buckland and H. v. H. (1954) and found that the party’s will must have been overcome by “a genuine and reasonably held fear caused by threat of immediate danger (for which the party is not himself responsible) to life, limb or liberty, so that the constraint destroys the reality of consent to ordinary wedlock.” The Court of Appeal in Hirani v. Hirani (1982) used a subjective test for duress. In this case, the court used the test of whether the threats, pressure or other form of duress were sufficient to “destroy the reality of consent and overbears the will of the individual.” Threats of violence or deprivation of liberty were not required to constitute duress.

In addition to defining consent, laws should provide the mechanisms necessary to determine valid consent. Laws should require the physical presence of both parties and witnesses as a means of establishing consent. Drafters should require consent to be expressed in person by the parties and in the presence of an authority competent to formalize the marriage and in the presence of witnesses. To combat nonconsensual marriages, drafters should not confer legal recognition on marriages by proxy, but instead require the presence of both parties plus witnesses at the legal proceeding for the marriage.

Promising Practice: Croatia has eliminated marriage by proxy; thus, a family member may no longer represent a party in a marriage ceremony under that Marriage and Family Relationships Act (2003). See: Edwige Rude-Antoine, Forced marriages in Council of Europe member states, Forced marriages in Council of Europe member states, Council of Europe, 2005, pp. 74-75.

Drafters should consider providing additional mechanisms to ensure that consent is freely and fully given. Laws should authorize a registrar to interview both parties, separately and along, prior to the marriage where there are doubts about free and full consent. For example, Norway provides a mechanism allowing an official to interview both parties to ensure they have consented to the marriage.

Drafters should also consider that, in establishing a process to safeguard and check that both parties are consenting to the marriage, there is appropriate support available for those who are being forced into marriage and require protection and support after disclosing. See: Section on Victims’ Rights.

Drafters should make proof of age always compulsory for marriage. Laws should avoid language that gives the registrar discretion whether to require proof that both parties are at least 18 years of age. See: (Art. 31(2)-(3), Ireland Family Law Act (1995), where the registrar has the option to request evidence “if he or she so thinks fit” and refuse the application for non-compliance or where the minimum age requirement is not met.

In areas where there is no established birth registration or certification system, drafters may wish to provide for alternative means of age validation, such as witness affidavits or school, baptismal and medical records. It is important for laws to note, however, that any alternative source of information be an official one, and approaches should not in any circumstances be made to the family.