Forced Marriage

Forced marriage involves the marriage of anyone against their will or who is required to marry without their full and informed consent.

The critical issue with forced marriage is the question of consent of one or both parties, which may be altogether absent or given only under pressure and duress. Forced marriages may occur between children, a child and an adult, or adults. Boys and men are often forced to marry against their wishes, particularly where family pressure is applied, but generally it is girls and women who are the victims of forced marriage and suffer its most severe consequences. Forced marriages come about through coercion, inducements, deception and abduction. In some cases, they amount to enslavement for the girl or woman spouse.

Forced marriage is strongly associated with child marriage because full and informed consent is absent or considered unnecessary when it comes to the marriage of a child. However, a distinction should be made between the two concepts so that there is room on the one hand to highlight the concerns particular to the marriage of children and young people aged under 18 while also stressing, on the other hand, the various forms and degrees of force that may be used to arrange the marriage of both children and adults. So, while the terms ‘forced marriage’ and ‘child marriage’ may seem interchangeable, forced marriage is not necessarily child marriage, and the distinction should always be made clear. This clarification has added legal implications for then defining force as it applies to child marriage.

Like child marriage, various forms of forced marriage are practised or tolerated by many societies. The most common kind is where parents or families formally arrange the marriage of children and young adults against their wishes. At the other end of the scale, there is little community toleration for more violent forms of forced marriage where girls and women are abducted by militias and ‘married’ through the ritual of violence and otherwise to soldiers for use as they see fit.

Many forced marriages, however, are centred on a commercial transaction, and as such they may be generally characterised as commercial sexual exploitation. Forced marriages become a form of commercial sexual exploitation of children (CSEC) when the marriage involves a child. This is clearly apparent where third parties contract and transact economic exchanges in order to arrange a child marriage. Essentially, a price – in cash, goods or kind – is agreed upon and paid for a child as a spouse. The child is then available to their spouse for sexual purposes, among other things.

The commercial sexual exploitation of children through marriage is particularly overt in some cases, such as with short-term marriages known as siqueh in the Middle East and North Africa. These ‘marriages’, which may last from hours to months, have in effect become a pseudo-legalised way for men to have sexual relations with children. This phenomenon has become highly commercialised in some places, with agents acting as brokers to facilitate dowry transactions by introducing families to ‘husbands’, whereupon a contract is drawn up between the two parties. Such marriages are technically illegal because they are not registered. But girls are often bought in this way, and later abandoned. In a sense, the use of the term ‘child marriage’ here should also be given the added emphasis of ‘force’ in order to stress the degree of violence and overtly mercenary nature of the practice.

Other forms of forced marriage, such as those arranged between families, may be enshrined in common law practice and given legal sanction within national legal codes. They are generally categorised as tradition and therefore rationalised as culturally appropriate. Where a child is involved, legal loopholes mean the legal status of children and adolescents forced into marriage is adapted so that married children are classified as adults. The apparent disharmony between national legal codes and a government’s commitment to international instruments such as the Convention on the Rights of the Child (CRC) is, however, made more ambiguous because the CRC allows for national law to set the age of majority below 18. As such, even where marriage is clearly forced upon a child, a government may not feel obliged to take preventive and protective action.

Harmonisation by States of the CRC’s definition of a child is critical to ensure protection for children uniformly, particularly because of the globalisation of the exploitation of children. Cross-border arrangements for forced marriages and child marriages highlight the fact that this issue is not contained within specific national borders but has international implications, especially where the implementation of laws to protect children and their rights varies from one country to another. It may also be said that where national law allows for forced marriage and child marriage, it also effectively allows for the sexual abuse and exploitation of child spouses.
But however the CRC is interpreted, it is clear that forced marriage, in its various forms, contravenes basic human rights and international instruments that include articles reinforcing the right to marry based on free, full and informed consent.