According to Human Rights Watch, 14 million girls are married, worldwide, each year – with some as young as eight or nine. While early and forced marriage appears most prevalent in countries of Africa, Asia and the Middle East, several recent cases have shown Australia is not immune to the practise.
If the global trend continues, Human Rights Watch estimates that 142 million children will be married by 2020.
Snapshot of Australia
There is no Australian research on the prevalence of forced marriage but the issue was brought to the fore following several recent high-profile family court cases.
A 2010 case involving a 13 year-old Victorian girl began when her school alerted the state’s child protection service that she was not attending school. The school suggested the girl’s absence may be due to her parents preparing her for marriage to a fiance they had chosen for her – a 17 year-old living overseas.
Consequently, the Department of Human Services initiated proceedings in the Family Court that eventually resulted in the court ordering the girl not be removed from Australia before she turned 18. The court also ordered that her passport be surrendered, that her parents be restrained from applying for another passport on her behalf and that her name be placed on the Australian Federal Police watchlist until her 18th birthday.
The next year, another prominent case came before the family court. The girl (known as Ms Kreet) had just finished year 12 and had a boyfriend (known as “Mr U”) who lived in Australia.
Ms Kreet’s parents told her she was to travel to their home country to marry Mr U there. But they deceived her and had another man in mind.
The court heard that on arrival, Ms Kreet was introduced to the man her parents had secretly chosen to be her husband. Her father told Ms Kreet that if she did not acquiesce to the marriage, he would have her boyfriend’s sisters and mother kidnapped and raped. Ms Kreet consented and the marriage took place.
But when Ms Kreet returned to Australia, she withdrew a visa application for her husband and applied to the Family Court for an annulment.
The court accepted that Ms Kreet believed that her father would carry out his threat and said that at the time of the marriage ceremony, Ms Kreet’s consent was not real because it had been obtained through duress. The court declared that the marriage was not a valid marriage and that the marriage was void.
Australian law reform
The latter case illustrates how coercion can overbear full and free consent to a marriage. When deciding Ms Kreet’s case, Judge Cronin concluded:
If a cultural practice relating to a marriage gives rise to the overbearing of a mind and will so that it is not a true consent, the cultural practice must give way.
Acknowledging emerging concerns about forced marriage in Australia, the Commonwealth government released a discussion paper on forced and servile marriage in Australia in 2010 and called for submissions from community groups to inform potential reform.
Then, on March 8 this year, legislation passed to specifically outlaw the practice. The amendment created new offences relating to slavery and slave-like practices including forced marriage.
Under the Act, a marriage is a forced marriage if – because of the use of coercion, threat or deception – one party to the marriage entered into the marriage without freely and fully consenting.
Since the new law came into effect, there has been considerable community interest in the area of forced marriage; engagement in outreach and writing multilingual materials to raise awareness of the law.
In one such innovative program, the Victorian Immigrant Refugee Women’s Coalition (VIRWC) designed a new campaign for high school students called The Choice is Yours. The coalition is calling for training about the indicators of forced marriage among teachers, doctors and community workers.
The law is one part of a holistic and effective social response. But it’s also essential that comprehensive support services for those in forced marriage are available and that resources are put into community-based services and education to explain the law.
In the 2010 case, the court had the power to prevent the girl leaving Australia, but such protective powers cease when the person turns 18. In the United Kingdom, civil protection orders are available regardless of the age of the applicant.
This would be the next step to ensure those in forced marriage have all the support they need and can choose the extent that they wish to engage in legal processes.
Jennifer Burn is director of Anti-Slavery Australia, which has received an Australian government grant to develop an e-learning training program about slavery and slavery-like practices including forced marriage. She is director of Anti-Slavery Australia at the University of Technology, Sydney and an associate professor in the Law Faculty at UTS.