Annulment of a forced marriage and divorce

• Drafters should consider the legal options for the victim to end a forced marriage. It is important to ensure that victims understand that a protection order or criminal sanction does not automatically annul or dissolve the marriage but provides the basis on which to do so.

• Laws may annul a marriage as void or voidable. The Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention), adopted by the Council of Europe and opened for signature in May 2011, obliges states to reform laws, implement practical measures to aid victims, and, importantly, allocate adequate resources for an effective response to violence against women and domestic violence. It also requires that states parties take the necessary legislative or other measures to ensure that marriages concluded under force may be voidable, annulled or dissolved without undue financial or administrative burden placed on the victim. Voiding a marriage does not require a formal decree and will render the marriage as though it never existed. Statutes generally void a marriage under certain fundamental conditions, for example, an absence of voluntary consent, a party is already married, a party is not of legal age, or the parties are related within a certain number of degrees.

• Drafters should be aware of civil laws that may negatively impact the status of children or property rights when a marriage is automatically voided. The Newham Asian Women’s Project Newham Asian Women’s Project noted that children borne of voided marriages will be regarded as illegitimate in the UK unless both parties held a reasonable belief that the marriage was legitimate and the husband’s residence is in England or Wales. In contrast, a voidable marriage requires a formal court decree for termination. Laws should not impose time restrictions upon when a party may seek to annul a marriage, but may instead increase the presumption of the marriage’s validity with time.

• Laws regarding annulment of a marriage should safeguard both parties’ rights to property and guarantee them information regarding the proceedings. Any options for ending a marriage should protect her rights, including those related to property, child custody, immigration status and support.

• Laws should guarantee to women the same rights and responsibilities at the dissolution of a marriage as men. Drafters should ensure that laws reflect a no-fault divorce regime. See: CEDAW, Gen. Rec. 29. This includes: 
  • Revising any provisions linking grounds for divorce and financial consequences to eliminate opportunities for husbands to abuse these provisions to avoid any financial obligations towards their wives;
  • Revising any provisions relating to fault-based divorce to provide compensation for the contributions made by the wife to family economic well-being during the marriage;
  • Eliminating different standards of fault for wives than for husbands, such as requiring proof of greater infidelity by a husband than by a wife as a basis for divorce.
  • Eliminating any procedural requirement of payments to obtain a divorce that does not apply equally to husbands and wives.
  • Separating the principles and procedure dissolving the marriage relationship from those relating to the economic aspects of the dissolution.

• To achieve both formal and substantive equality with respect to property rights upon the dissolution of marriage, drafters should provide for: 
  • Recognition of use rights in property related to livelihood or compensation to provide for replacement of property-related livelihood;
  • Adequate housing to replace the use of the family home;
  • Equality within the property regimes available to couples (community property, separate property, hybrid), the right to choose property regime, and an understanding of the consequences of each regime;
  • The inclusion of present value computation of deferred compensation, pension or other post-dissolution payments resulting from contributions made during the marriage, such as life insurance policies, as part of the marital property subject to division;
  • The valuation of non-financial contribution to marital property subject to division, including household and family care, lost economic opportunity, tangible or intangible contribution to either spouse’s career development and other economic activity, and to the development of his or her human capital;
  • Consideration of post-dissolution spousal payments as a method of providing for equality of financial outcome.

See: CEDAW, Gen. Rec. 29.

• Drafters should eliminate any compulsory waiting periods for divorce aimed at facilitating reconciliation between parties in a forced marriage. Laws should not grant legal recognition to religious traditions that deny women due process in divorce proceedings. Divorce should only be recognized through formal legal mechanisms. For example, by saying “talaq” or “I divorce you” three times, a man can divorce his wife under Sunni Muslim tradition. Women who have been so divorced lose their home and financial support. Laws should establish a legal process and legal aid resources for women to assert claims for marital support, child custody and property claims against husbands who have divorced them in this manner.

• Legislation should provide for research and data collection on the impact of divorce and other forms of marital dissolution on women and girls and should publish results in an accessible form. CEDAW, Gen. Rec. 29.

Examples of Laws:

• Norway Act 47 of 4 July 1991 provides that either spouse may apply for annulment in cases of forced marriage or abuse. Section 23 states that a “spouse may also demand divorce if he or she has been forced by unlawful conduct to contract the marriage. This applies regardless of who has exercised such force.”

• Fiji’s Family Law Act of 2003, along with subsequent amendments, is considered a model for the Pacific Island region. It includes a no-fault divorce provision, enables women to get a divorce after a one-year separation period (when they previously had to wait for three years), and provides enforceable rights to custody of children and financial support.

• The UK Matrimonial Causes Act of 1973 voids a marriage if “either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise.” A party seeking to void the marriage must seek the annulment through civil proceedings within three years of the marriage.

• The Hindu Marriage Act provides for both automatic annulment and voidable marriages. In the former case, a marriage is automatically annulled upon petition if: a) either party already has a living spouse at the time of the marriage; b) the marriage is between relatives, except where custom governing each of them permits their marriage; c) The parties are sapindas--or descendants from the mother or father’s lineage--of each other, except where custom governing each of them permits of a marriage between them. The law states that an “annulment may be granted when a marriage is automatically void under the law for public policy reasons or voidable by one party when certain requisite elements of the marriage contract were not present at the time of the marriage.” In cases where consent was not present, annulment is not automatic, and the party must seek annulment. Valid grounds for annulment include consent due to unsoundness of mind or consent that was given due to force or fraud. The law imposes a deadline within which a party can seek annulment: the party cannot seek annulment if she presents her petition more than one year after the force had stopped or the fraud discovered, or the petitioner has lived with the spouse, with her full consent, after the force has stopped or the fraud discovered. Also, child marriage is subject to annulment, but the law differentiates between the minimum age for marriage for boys and girls. The minimum marrying age for boys is 21, whereas the minimum age for girls is 18. Establishing a lower age for girls discriminates against women, and the age should be equal for both men and women. The parties lose standing to annul the marriage, however, once the underage party voluntarily cohabitates with the spouse past the age of consent. Drafters should extend or remove the period of annulment. It may take the party time to access resources or gain the capacity to leave the marriage. Drafters should also remove the bar for annulment when parties have cohabitated past the age of consent.