what is a forced marriage?
the commonwealth marriage act 1961
Forced marriage is not limited to particular cultural or religious groups. It is a form of gender-based violence that happens all over the world. Anyone can be a victim of forced marriage, regardless of ethnicity, age, gender or sexual orientation. In Australia, forced marriage is regarded as a slavery-like practice and an abuse of human rights. We have laws protecting people who are at risk of forced marriage.
In this article, we aim to provide you with more information regarding forced marriage, what to look out for when you suspect that someone is at risk of forced marriage and where to find help and advice.
A forced marriage is when a person enters into a marriage without giving their consent freely and fully. This could be because they were threatened, forced or deceived into giving consent; or they are not capable of understanding the nature and consequences of the marriage ceremony because of age or their mental capacity.
Most reported victims are young women and girls, but boys and men can also be a victim of forced marriage. Sometimes the coercion is easy to identify; it can include physical or sexual violence, or the victim can be prevented from leaving a particular place or location until he or she agrees to the marriage. Other types of coercion like psychological or emotional pressure can be less obvious to detect. The person is made to feel responsible for the consequences of not getting married. It can include making the person feel that refusal to get married will bring shame on the family.
Australian laws against forced marriage
The Australian Government strives to fight against and prevent serious forms of exploitation like human trafficking, slavery and slave-like practices such as servitude and forced labour. The Government’s response to forced marriage forms part of this strategy. Forced marriage is a crime and such a marriage can be declared null and void.
- The Commonwealth Criminal Code Act 1995
- The Criminal Code makes it an offence to cause a person to enter a forced marriage, and to be a party to a forced marriage. You are a party to a forced marriage if you agree to marry a person who you know, or suspect, is a victim of forced marriage, unless you are a victim of the forced marriage yourself.
The offence of forced marriage applies to:
- Legally recognized marriages, cultural or religious ceremonies and registered relationships
- Marriages concluded in Australia (including where a person was brought to Australia specifically to get married) and
- Marriages outside of Australia where the person is taken overseas to get married.
- The conduct of any person involved in bringing about a forced marriage. This can include family members, friends, wedding planners or the people celebrating the marriage.
Take note: The offence applies regardless of the victim’s age, gender or sexual orientation.
The offence of forced marriage does not apply to:
- Sham marriages where both parties entered willingly into a fake marriage for fraudulent purposes.
- Arranged marriages where potential spouses are introduced to each other by third parties or family members, and both parties consent to the marriage. Australia recognizes arranged marriages as legal.
- Servile marriage is covered by separate offences under Australian Law. Although it is not a ‘forced marriage’ crime, it is an exploitive practice forbidden by the Australian Government. A servile marriage happens when a person is sold or inherited, or where a spouse is treated as property, including if the person is exploited on an ongoing basis within the relationship.
Forced Marriage Penalties
The crime of forced marriage carries a maximum penalty of seven years’ imprisonment. In the case of an aggravated offence, it could increase to nine years’ imprisonment. Aggravated circumstances include the victim being under the age of 18 years old. If the victim is under 18 and is taken overseas to conclude a forced marriage, the maximum penalty is 25 years’ imprisonment.
The Marriage Act stipulates that a marriage can be void if the consent of the party was not real, or if the party was not of marriageable age.
If one of the parties to a marriage is between 16 and 18 years of age, the Marriage Act permits the marriage, but only if:
- There is the required consent (usually parental) and
- A judge or magistrate from an Australian Court made an order authorizing the marriage.
If both parties are under the age of 18, they cannot marry. Under no circumstances can someone under the age of 16 get married.
Sometimes children and young people are taken overseas to be forcibly married. This is illegal in Australia. The Australian Federal Court can make orders to prevent a child from being taken overseas for the purposes of forced marriage. To achieve this, the Court can order that:
- No passport may be issued for the child
- The child’s name is placed on the Airport Watch List to prevent the removal of the child from Australia
- The child’s passport or the accompanying adult’s passport be surrendered to the Court
What can you do if you think that someone is at risk of forced marriage?
If you think that someone is at risk of forced marriage, or the person is already in a forced marriage, you should contact the Australian Federal Police (AFP). If there is an immediate danger contact Triple Zero (000).
It is not always easy to be sure, but often a combination of the following signs could indicate a risk of forced marriage.
- The engagement is announced very suddenly
- The siblings were married early, or the older siblings stopped going to school
- The person shows signs of depression, isolation, self-harming or substance abuse
- The person seems nervous or scared of an upcoming overseas holiday
- The person is absent from school, university or work for long periods of time
- The person often withdraws from school, university or work activities
- The family has a lot of abnormal and unnecessary control over the person’s life
- The person does not have control over their own income, or
- The person is not allowed out or has to be accompanied by someone else from the family
- The person is not allowed to make decisions about their future without the consent of their parents or others
- There are indications that the person is exposed to abuse, domestic violence or disputes, or the person runs away from home.
For more information and resources the Australian Government developed a forced marriage community pack in partnership with the National Roundtable on Human Trafficking and Slavery’s Communication and Awareness Working Group. You can access the pack by emailing the People Smuggling and Trafficking Section at email@example.com , or you can call 02 6141 6666.
Some sections of the Community Pack on Forced Marriages are available in Arabic, Dari, Farsi, Somali, Tamil and Urdu.
The victim is often scared to tell someone. If you think that someone is at risk, you should seek advice and help as soon as possible. Be mindful of your own and the victim's safety. You can remain anonymous when you contact the Federal Police if you wish. You can contact the AFP online by completing a form on the Human Trafficking page on the AFP website, or you can call 131 AFP.
he Australian Federal Police (AFP) can provide immediate assistance, especially where the victim needs help to make sure that he or she is not taken overseas. They can also refer victims to safe accommodation, legal advice and counselling.
If the victim is a child, the AFP will always act in their best interest. The AFP will provide initial support even if the victim doesn’t want to assist in an investigation or prosecution.
- My Blue Sky is a website dedicated to preventing forced marriage in Australia. It provides important information and links to support services. You can call their national forced marriage helpline on (02) 9514 8115, Monday to Friday between 9 am and 5 pm, or email firstname.lastname@example.org or send an SMS to 0481 070 844 for free, confidential legal advice.
- The National Sexual Assault, Domestic Violence and Family Violence Counselling Service provides free 24/7 advice and counselling services. Professional counsellors will assist persons who have been a victim of, or is at risk of, family and domestic violence or sexual assault. You can call 1800 RESPECT or visit National Sexual Assault, Family and Domestic Violence Counselling Service for confidential assistance.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.