When the average person thinks of forced or underage marriage, they probably envision a girl from a specific culture or even a different time period, in a country that is decidedly not New Zealand. Yet forced marriage does occur in New Zealand — and has raised significant enough concerns for Parliament to take notice.
What is Forced Marriage?
Unlike an arranged marriage involving consenting parties, a forced marriage occurs where a person is coerced to marry under physical, sexual, psychological or financial pressure. Although many victims of forced marriage are underage, a person can be forced to marry at any age. Forced marriage is sometimes underpinned by cultural or religious tradition, but it does not happen exclusively in migrant and ethnic communities. In any case, the harm done to the victims of forced marriage prove that it should be viewed as a human rights violation and not a valid practice. Victims may face physical and sexual violence from the person they are forced to marry, as well as honour-based violence from family if they do not comply with their wishes. In addition, young women who are forced into marriage can find themselves barred from access to education, healthcare and freedom of movement.
Forced marriage happens in New Zealand, though its prevalence is hard to determine. This is because many such marriages happen within small communities and thus are not officially recognised by the state. One source estimates that there are 20-30 forced marriages each year. Shakti, a refuge for migrant and refugee women of Asian, African and Middle Eastern descent, says it has dealt with around 70 forced marriages (but that many more have gone unreported). In Shakti’s experience, the two chief causes of forced marriage are gender inequality and a parental perception of children as property. Common contexts where children are forced into marriage include where a family seeks to control the child’s sexuality, secure inheritance by organising a marriage within the family without the child’s consent, or raise their socioeconomic status by marrying the child to someone who will (supposedly) support them financially. Victims can feel forced to marry against their will due to emotional manipulation and pressure to uphold familial “honour”.
A Gap in the Law
New Zealand is party to many international law instruments condemning forced marriage, such as the United Nations Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on Consent to Marriage and Minimum Age for Marriage and Registration of Marriages. Despite this, we do not have legislation of our own expressly outlawing forced marriage.
In 2012, the government stated that the incidence of forced marriage in New Zealand is low, and that it is illegal anyway under existing legislation. Under the Family Proceedings Act 1980, any marriage or civil union entered into under duress is void. In terms of underage marriage, the Marriage Act 1955 holds that people under the age of 16 cannot get married (but 16- and 17-year-olds can marry with parental consent). A victim of forced marriage may be able to invoke the Crimes Act 1961; especially the sections on sexual violence and, depending on their circumstances, the provisions on slavery and servitude. On the surface, all of this looks sufficient to prevent forced marriage.
Yet one area of concern is the fact that parents can approve the marriage of their 16- or 17-year-old — meaning they can consent to the marriage of their teenager against that teenager’s will.
The fact that other nations have implemented specific legislation against forced marriage also strongly hints that New Zealand should do so. In 2013, Australia passed the Crimes Legislation Amendment (Slavery, Slave-like Conditions and People Trafficking) Act. The amendment means that forced marriage is included in the definition of “exploitation” in the Commonwealth Criminal Code Act 1995 and recognised as a purpose for which people can be trafficked. Notably, this legislation covers not only people forced into registered marriages but those married through cultural ceremonies. Recent awareness campaigns reflect that Australia is following the issue and seeking to ensure that victims know where to turn for help. In comparison, New Zealand’s response has been called “woefully inadequate” and United Nations committees have recommended that we implement specific measures against forced marriage.
Two New Bills
The Family and Whānau Violence Legislation Bill 2017 is currently on its Second Reading and attempts to reduce New Zealand’s high rates of family violence by adopting “a comprehensive approach that prioritises early intervention and prevention.” Among its amendments to the Crimes Act 1961 is the new section 207A, which makes it a specific criminal offence to coerce a person to enter into a marriage or civil union. The section applies even if that marriage or civil union is an “arrangement or relationship” that is not solemnised or legally binding, which would seem to capture unofficial cultural marriages.
The Marriage (Court Consent to Marriage of Minors) Amendment Bill 2017 is currently before the Committee of the Whole House. It aims to mitigate the risk of 16 and 17-year-olds being forced into marriage by making it mandatory for a Family Court judge to approve the marriage. The Bill provides that for a judge to grant their consent, they must be satisfied that the 16- or 17-year-old has made the application free of coercion. The judge must also consider whether the marriage is in the 16- or 17-year-old’s best interests, taking into account their views as well as that of their parents. If necessary, a lawyer may be appointed to represent the 16- or 17-year-old. To avoid people exploiting legal loopholes, the Bill requires consent from a judge to marriages involving a 16- or 17-year-old as well as civil unions and de facto relationships.
A Step Forward?
The two Bills above are positive steps in New Zealand’s recognition of the need to prevent and punish forced marriage. Shakti’s ongoing engagement with the problem and events such as the Future Without Violence March last month have highlighted forced marriage within migrant communities and how this fits into the #MeToo movement. It is vital that New Zealand does not brush this issue under the rug, the way we did with family violence and youth suicide for so many years. Ultimately, standing against forced marriage means standing up for human autonomy and the right for each of us to choose their own future.
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 Claire Green “Forced and underage marriages: A pressing human rights issue in New Zealand?” (2015) 8 NZFLJ 96 at 96.
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