Forced Marriage is a criminal offence, but how effective are these protections, and how satisfactory is the dissolution process of forced marriages for victims?
Despite attempts at statutory and legislative protection for victims, the issue of forced marriage remains prevalent in the United Kingdom. Forced marriage refers to a marriage where one, or both, parties do not or cannot consent to the arrangement. This is often due to several factors, such as the parties suffering from learning difficulties or reduced capacity, or where individuals feel intense pressure from others to enter into the marriage.
The legal background
Forced marriage is a criminal offence in the UK, governed by the Anti-Social Behaviour, Crime and Policing Act 2014. This Act made it a criminal offence to, for example, take someone overseas to force them to marry (irrespective of whether the marriage actually takes place) or marrying someone who lacks sufficient capacity to consent to the arrangement. This is certainly a step in the right direction in demonstrating the UK Government is taking the issue of forced marriage seriously, and recognising the trauma and harm suffered by victims of such situations.
The victim’s perspective
Questions have arisen as to the effectiveness of criminalising such compounded situations. Some victims have expressed their unwillingness to press charges in cases of forced marriage owing to the fact that, in many cases, the perpetrators are actually related to the victim. As a consequence, this may mean that the victim is having to report and potentially criminalise their own family. A prominent example of this is in the case of Dr Humayra Abedin – a victim of a high-profile case of forced marriage who was taken to, and held captive in, Bangladesh by her family. Although this legislation led to her safe return to the United Kingdom, Dr Abedin refused to press charges against her family for their involvement in holding her captive and conspiring to force her to marry against her will. This is a key issue with attempts at protective legislation as it fails to effectively punish perpetrators and set a much-needed example to others that forced marriage is a serious violation of human rights with serious consequences for those involved.
Another key issue is the potentially catastrophic consequences for the victim if their situation is reported – there is no doubt that situations of forced marriage are often incredibly compounded and involve members of the victim’s own family or their communities. As a result of leaving a forced marriage, there is a high likelihood that a victim would be shunned by their community or family. A victim may also have to flee their home or local area for safety reasons considering the risk of honour-related violence and killings in such situations. This is an especially concerning prospect considering that victims often have no financial assets of their own, or unable to access familial finances due to being subject to financial abuse, and so would have to rely on the support of charities and the government to survive on their own.
All of these factors combined contribute to the concerningly-low conviction rates for the perpetrators of forced marriage – in the first year of the new reforms between 2014 and 2015, there was only one successful prosecution under the new offence of forced marriage. Even if the victim themselves do not choose to personally press charges against their family or members of their community, there remains a chance that the CPS will continue to prosecute without the consent of the victim themselves. A consequence of the criminalisation of forced marriage has therefore resulted in this choice being removed from the victim themselves, despite the risk of consequences to the victim such as complete alienation by their family and communities, or even the risk of honour violence
As a result, greater consideration is often paid to the civil protections offered to victims. The Forced Marriage Unit (FMU) is a Home Office unit leading the government’s forced marriage policy – operating both inside the UK and overseas for the provision of assistance to British nationals. This unit provides advice to both victims of forced marriages and professionals dealing with cases of forced marriage, as well as safety advice and repatriation of victims held against their will overseas.
Forced Marriage Protection Orders
In turn, it is also possible for victims of forced marriage to apply for a Forced Marriage Protection Order (FMPO) within the family courts, to protect both actual victims and those at risk of a forced marriage. Such orders are unique to each individual case and contain binding conditions and directions to protect victims. Breach of any such order can result in a maximum sentence of 5 years’ imprisonment. This removes the need for victims to personally press charges against their families, but whether this process is actually any more effective than criminalisation is another matter as, again, their family or members of their communities may still face imprisonment.
A further issue arising is the fact that the onus is upon the victim themselves, or someone close to them, to apply for such an order. The 2007 Shadow Minister for Community and Cohesion, Baroness Warsi, when commenting on FMPOs, noted that “from speaking to victims of forced marriages, when they are in those circumstances, the last thing on their mind or the last thing that they are able to do, is go to court and seek an order”. This is especially prevalent in victims who have been brought to the United Kingdom by their perpetrators and are therefore unaware of UK court processes.
Ending the marriage
The above protections refer to preserving the safety of the victim, however what about bringing the actual forced marriage to an end?
Unfortunately, to many victims, this process again is unsatisfactory. A victim of a forced marriage may seek a divorce, but this may feel as though the victim is having to acknowledge that the marriage that they were forced into was a valid one. The new ‘no fault’ divorce process may even further perpetuate these feelings as this system has removed the fault element, and therefore also removing the victim’s opportunity to demonstrate to the court the awful situation that they have endured. This again may leave victims feeling unheard and without their opportunity to share their stories.
Victims instead may seek an annulment of their marriage, wherein the marriage is declared to no longer exist in the eyes of the law. However, rather than a forced marriage being declared automatically ‘void’ (i.e., that the marriage never legally existed), a forced marriage is instead ‘voidable’. As a result, a forced marriage is seen as a legally valid one until one of the parties takes the necessary steps for it to be annulled, despite the lack of consent by the party forced into the marital arrangement. This is highly offensive to victims as it essentially deems a violation of their human rights as a legally valid arrangement.
Those victims that do not want to re-hash their traumatic situation are instead required to petition to leave their marriage and apply to have the marriage declared to no longer exist, rather than this being automatically declared. Despite the potential financial benefits to the client of this being the case (i.e. allowing the victim to potentially have access to marital finances after the ending of the marriage), the process of having to apply for their marriage to be annulled is yet another barrier for victims to be able to leave a marriage that they have been forced into and subsequently trapped within.
In conclusion, forced marriage remains both a prevalent problem within the UK, and an extremely difficult subject to broach. Despite both criminal and civil protections in place to protect victims, these protections are only effective in-so-far-as greater support is provided to victims for their lives post-escape of their situation. Greater awareness of such situations is certainly required as some victims may not be aware that being forced into a marriage is a crime, or that they themselves are a victim as ultimately, forced marriage is not a problem that can be resolved by criminalisation alone.
If you, or someone you know, are a victim of a forced marriage, there are a number of organisations that can help .