CDEG (2005) 1

Forced in Council of Europe member states

A comparative study of legislation and political initiatives

Prepared by Ms Edwige Rude-Antoine Doctor of Law, Research Officer CERSES/CNRS

Directorate General of Human Rights Strasbourg, 2005 Equality Division Directorate General of Human Rights Council of Europe F-67075 Strasbourg Cedex

© Council of Europe, 2005

Printed at the Council of Europe. The Council of Europe

The Council of Europe is a political The Council of Europe has its perma- ters, composed of the Ministers of organisation which was founded on 5 nent headquarters in Strasbourg Foreign Affairs of the 46 member states, May 1949 by ten European countries in (France). By Statute, it has two constit- and the Parliamentary Assembly, com- order to promote greater unity between uent organs: the Committee of Minis- prising delegations from the 46 national its members. It now numbers 46 Euro- parliaments. The Congress of Local and pean states.1 The main aims of the Or- 1. Albania, Andorra, Armenia, Austria, Azerba- Regional Authorities of the Council of ganisation are to promote democracy, ijan, Belgium, Bosnia and Herzegovina, Bul- Europe represents the entities of local garia, Croatia, Cyprus, Czech Republic, human rights and the rule of law, and to and regional self-government within Denmark, Estonia, Finland, France, Georgia, develop common responses to political, Germany, Greece, Hungary, Iceland, Ireland, the member states. social, cultural and legal challenges in its Italy, Latvia, Liechtenstein, Lithuania, Lux- The European Court of Human Rights member states. Since 1989 it has inte- embourg, Malta, Moldova, Monaco, Nether- is the judicial body competent to adjudi- grated most of the countries of central lands, Norway, Poland, Portugal, Romania, cate complaints brought against a state Russian Federation, San Marino, Serbia and and eastern Europe and supported them by individuals, associations or other Montenegro, Slovakia, Slovenia, Spain, in their efforts to implement and con- Sweden, Switzerland, “The former Yugoslav contracting states on grounds of viola- solidate their political, legal and admin- Republic of Macedonia”, Turkey, Ukraine, tion of the European Convention on istrative reforms. United Kingdom. Human Rights.

The Council of Europe and Equality between Women and Men The consideration of equality mittee (one from each member State) carries out analyses, studies and evalua- between women and men, seen as a fun- are entrusted with the task of stimu- tions, defines strategies and political damental human right, is the responsi- lating action at the national level, as measures, and, where necessary, frames bility of the Steering Committee for well as within the Council of Europe, to the appropriate legal instruments. Equality between Women and Men achieve effective equality between (CDEG). The experts who form the Com- women and men. To this end, the CDEG

For information on the activities of the Council of Europe in the field of equality between women and men, please consult our website: http://www.coe.int/equality

Equality Division Directorate General of Human Rights Council of Europe F-67075 Strasbourg Cedex

Tel. +33 (0)388 41 20 00 — Fax +33 (0)3 88 41 27 05 — e-mail [email protected]

Contents

Summary...... 7 Actual cases: how media Information, awareness raising, interest education and training ...... 58 Forced : a problem of can generate awareness . . . . 27 definition ...... 7 Legal reforms to prevent and combat forced marriages ...... 58 Quantitative data: estimates only . . 7 Fatoumata Konta ...... 27 Policies and initiatives to help those Actual cases: how media interest can Luisa Toumi ...... 28 involved in forced-marriage generate awareness ...... 8 Aïssitou ...... 28 situations ...... 58 The many related factors behind Fadime Sahindral...... 28 Resources for research into the reality ...... 8 of forced marriages ...... 58 The collective and individual The many related factors consequences of forced marriage . . 8 behind forced marriage . . . . 30 Some references ...... 59 Partial responses in law, and the limits of the legal approach...... 8 France...... 59 The collective and individual Policies, programmes and initiatives consequences of forced Belgium ...... 60 to combat forced marriage ...... 10 marriage ...... 31 Croatia ...... 60 Proposed recommendations . . . . . 11 Psychological and emotional Morocco ...... 60 problems...... 31 Italy ...... 61 Introduction...... 13 Health damage ...... 31 Netherlands ...... 61 Financial and legal difficulties. . . 31 Portugal ...... 61 Forced marriage: a problem of Norway ...... 61 definition ...... 16 Partial responses in law, and Sweden ...... 61 Marriage as slavery: a multiplicity of the limits of the legal United Kingdom ...... 61 situations...... 17 approach ...... 33 , traditional Beyond international legal Appendix 1: marriage and marriage for reasons of instruments ...... 33 custom, expediency or perceived List of countries studied and respectability: the gap between Forced marriage and international correspondents ...... 62 interior and declared intent . . . . . 17 private law ...... 35 and early marriage: Forced marriage and civil law . . . 38 Appendix 2: where lack of maturity makes Forced marriage and criminal law.42 Working documents...... 64 consent impossible...... 18 Austria ...... 64 Bogus marriage, , Policies, programmes and Belgium ...... 66 , putative initiatives Bosnia and Herzegovina...... 73 marriage, marriage to acquire to combat forced marriage .47 nationality and undesirable Croatia ...... 74 Forced marriage and personal marriage: Cyprus ...... 76 an absence of marital intent . . . . . 19 protection policies...... 47 Czech Republic ...... 76 Marriage under constraint: Forced marriage and migration Denmark ...... 78 violation of the will and restriction of policies ...... 49 freedom ...... 20 Approaches to combating forced Estonia ...... 79 marriage ...... 52 Finland ...... 80 Quantitative data: estimates France...... 82 only...... 22 Proposed recommendations 58 Germany ...... 89

5 Hungary ...... 92 Netherlands ...... 103 Spain...... 117

Ireland ...... 94 Norway ...... 106 Sweden ...... 119 Italy ...... 95 Poland ...... 108 Switzerland ...... 123 Latvia...... 99 Portugal ...... 109 Luxembourg ...... 100 Romania ...... 113 Turkey ...... 124 Malta ...... 102 Slovakia...... 115 United Kingdom ...... 127

6 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives Summary

This study sets out to examine the decision whether or not to initiatives to prevent forced mar- forced marriages in 28 member states commit oneself, and from external- riages. of the Council of Europe, and more ised or declared agreement expressed specifically to consider the legislation in a form required by the law and in Under Recommendation potentially applicable to such unions, such a manner that the other party Rec (2002) 5 of the Council of Europe as well as exploring policy initiatives can take cognisance of it. Committee of Ministers to member to combat the phenomenon. It states on the protection of women attempts to uncover the dynamics of The general hypothesis is that sys- against violence, forced marriage forced marriages and the issues tems of civil and criminal law and the should be regarded as an act of vio- involved, with particular attention to rules of private international law are lence and should cease to be prac- the concepts of exchange of consent in need of reform in the light of inter- tised in Europe. In the words of the and the meeting of minds. Consent nationally recognised human rights recommendation: “Member states by the partners in a marriage is standards. The study has produced a should prohibit forced marriages con- apparent both from the psychological body of information to support the cluded without the consent of the or internal inclination that informs case for new policies, schemes and persons concerned.”

Forced marriage: a problem of definition

“Forced marriage” is an umbrella overlap – hence the difficulty of simply the terms used to express it: it term covering marriage as slavery, defining precisely what is meant by depends on all the circumstances in arranged marriage, traditional mar- “forced marriage”. which it is expressed. Anxiety and riage, marriage for reasons of custom, It is not a term that has explicit fear can rule out all thought of resist- expediency or perceived respectabil- legal content and it is defined differ- ance, without there being any genu- ity, child marriage, early marriage, ently in different countries. This is ine consent. Similarly it is not always fictitious, bogus or sham marriage, probably because, in cases other than possible to supply proof of the type of marriage of convenience, unconsum- those where there is actual physical emotional threats that can render mated marriage, , proof that a person’s freedom of con- individuals vulnerable and prevent marriage to acquire nationality and sent has been denied by physical them from resisting a marriage. Study undesirable marriage – in all of which force or violence – eliminating any of actual cases reveals a too system- the concept of consent to marriage is doubt that the marriage was forced – atic tendency on the part of courts to at issue. Among the types of marriage it is not always easy to ascertain the overlook the possibility that mar- listed, which can assume their partic- state of mind behind the explicit con- riages contracted in order to circum- ular characteristics in the period tent of the marriage contract. The vent immigration rules, ie without between marriage promise and wed- fact is that the intent expressed when any genuine marital intent, may also ding, there is considerable scope for a marriage is concluded is more than be forced marriages.

Quantitative data: estimates only

None of the Council of Europe studies and anecdotal information. Marriage under the age of 18, or at a countries has carried out a quantita- From these sources it is clear that very early age, continues in many tive survey to determine the sociolog- forced marriage is practised in many parts of the world, suggesting that a ical realities of forced marriages. At regions of the world and it mainly high proportion of such marriages are best we can draw on a few small-scale affects the world’s poorest people. forced ones. In most cases it is girls

Summary 7 who are forced into marriage and the It would thus be extremely useful more pertinent responses to the prob- practice is commoner in Africa and to produce a socio-demographic and lem. We could look more closely not Asia than in the industrialised coun- cultural profile of individuals who only at economic factors but also at tries, where young people are marry- fear, or enter into, forced marriages political crises and armed conflicts ing later and later, between the ages in each of the Council of Europe that could have an aggravating effect of 25 and 30. Countries in Europe member countries. This would help inasmuch as they create widespread tend to associate forced marriage us to assess the incidence of forced insecurity and vulnerability. with migratory flows and the difficul- marriage and understand its various ties that immigrant families experi- dimensions, to identify the regions ence in becoming integrated. where it is practised and to develop

Actual cases: how media interest can generate awareness

The study includes summary lem. Considering actual cases and characteristics, causes and conse- accounts of several cases that exchanging experience on the ground quences differ. received media coverage and height- is very useful for while the phenome- ened public awareness of the prob- non of forced marriage is not rare, its

The many related factors behind forced marriage

The factors that underlie forced importance attached to honour and debt to one’s own community. Addi- marriage differ according to whether virginity, security in old age, a desire tional factors may include deteriorat- we look at countries where the prac- to keep financial assets in the family ing relations between the sexes, the tice is perpetuated by rural, often or concern to reinforce parental rise of religious fundamentalism, the poor families, or at European Union authority. In the second, the driving impact of urban social policies, diffi- countries where it involves families forces may be a wish to prevent chil- culties with regard to marriage and of immigrant origin. In the first set of dren from becoming “Europeanised”, sexuality, and a concern to prevent countries, the causes are mostly to do or a need to reaffirm identity, perpet- one’s children from entering into a with cultural pressures such as the uate the migratory process or repay a mixed marriage.

The collective and individual consequences of forced marriage

For both boys and girls, forced and logistic help, individuals who need enabling to defend their human marriage has psychological, emo- have undergone forced marriage rights and basic freedoms. tional, medical, financial and legal need freedom to exercise their eco- consequences. As well as financial nomic, social and legal rights. They

Partial responses in law, and the limits of the legal approach

Considered together, the relevant and respect for marital capacity have tinction is drawn in this regard international legal instruments sug- become for the majority of these between substantive and formal gest the emergence in the different countries – notably by virtue of their requirements. In settling choice-of- member countries of a degree of commitment to the principles of law questions concerning the sub- standardisation around a straightfor- international instruments for the pro- stantive requirements for marriage, ward concept – that everyone has the tection of human rights and funda- some countries give preference to right to marry and found a family, mental freedoms – the key bench- national law while others apply the that child marriage (ie where a marks for assessing individuals’ law of the country of residence. A spouse is not yet of ) behaviour in family relationships. third group either allows spouses to cannot be permitted and that all mar- Freedom to marry, independent choose between their own national riages require the free and full con- choice, and the rejection of early laws and those of their country of res- sent of the future spouses, expressed marriage are clearly essential, and idence or determines the law applica- in person before a competent author- anything that compromises those ble according to the circumstances of ity in the presence of witnesses. Yet it principles must be rejected. the case. With regard to formal would be wrong to assume that this in Apart from this international level requirements, most countries opt for itself can effectively guarantee free- of protection, the study looks at how the law of the state where the mar- dom and choice with regard to matri- marriage is regulated by the domestic riage is contracted. mony. laws of each country and in private Research has shown the choice-of- All the Council of Europe member international law. law rule that gives precedence to states have signed and ratified at least There is intense debate about the spouses’ national legal systems to be two international agreements on choice-of-law rules that should apply unsatisfactory. Lawyers have sug- forced marriage. Absence of duress to the contracting of marriages. A dis- gested that a system which gives

8 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives precedence to the law of the country tion from the age requirement, offence was committed against a of residence is a better solution in parental or legal permission for family member, the nature of the terms of the principle of equality. In minors to marry, the role of the relationship between aggressor and many European countries, families courts where parental permission is victim and the seriousness of the act from immigrant backgrounds, and refused, the requirement of consent itself (whether it involved violence, particularly women whose national by the spouses, formal requirements, threat, unlawful imprisonment, use family-law systems contain provi- grounds for annulment and proce- of objects and so on). These various sions discriminating against them, dural stipulations. The findings sug- provisions in criminal law provide a prefer to see the law of the country of gest that all states should be encour- basis on which to punish forced mar- residence applied, considering that it aged to amend their legislation by riage – that is, once the marriage has affords them greater protection. In making 18 years the minimum legal been contracted. Rape within mar- the eyes of some jurists, however, this age for marriage. To do so would be in riage is not yet recognised under all option amounts to the compulsory accordance with international under- legal systems. Some countries have integration of foreign communities. It takings that states have given. It introduced provisions that can be is justifiable in the case of families would also remove a measure of used to prosecute parents for abetting who have lived for many years in a gender discrimination in those legal the rape of a minor. The next ques- foreign country, particularly if there systems that retain different mar- tion that arises has to do with bring- is a connection of proximity between riageable ages for boys and girls. ing criminal proceedings, and the a disputed situation and the local Another point to emerge is the urgent rules here differ widely from country legal system. However, it does noth- need for all countries to keep regis- to country: in some cases initiation of ing about the problem of recognition ters of births, deaths and marriages, proceedings depends on the victim abroad for legal steps or decisions so that people’s dates of birth and making a complaint, in others the taken under legislation inconsistent marriage dates are known. It would public prosecution service may take with the parties’ own national laws. also seem necessary to close off the the first step. The legislation in some Opting to let the parties themselves option of marriage by proxy, which is countries stipulates that the public choose the law that will govern their currently still available in many family relationship applies the princi- countries. Finally, governments prosecution service cannot take any ple of independent free will, and it is should be encouraged to adopt the action unless the victim has made a a solution that recognises legal plural- approach taken by Norway in Act 47 complaint. The law may, however, ism and shows greater respect for of 4 July 1991 concerning marriage, allow the prosecution service to take special features of foreign legal sys- under which either spouse may apply investigative action or place a suspect tems. A further solution is to leave to the courts to have a marriage in preventive detention so that he or the choice of applicable law to the annulled if he or she was forced into she does not abscond or material evi- courts. Different courts may some- it. dence go missing. In other legal sys- times use different choice-of-law cri- The research also highlighted the tems the public prosecution service teria to reinforce the formal validity ineffectiveness of legislation – in has an automatic right to take action of a legal contract. terms of its implementation rather if it is deemed to be in the public The question here is what choice- than its content. Victims fail to report interest. In some countries a com- of-law solution would be most appro- abuse, either because they are igno- plaint from the victim is not needed priate in terms of prevention, ie pro- rant of the law or because they for criminal proceedings to be initi- viding universal protection against believe that family problems should ated: under ordinary law any unwanted marriage. While giving be solved within the family. A further member of the public can bring a people the right to choose might point is that, under most countries’ matter before the courts (although, as seem the best solution, particularly legal systems, applications for annul- a rule, proceedings are initiated by for families who maintain close ties ment on the grounds of breach of the police). This is very useful in the with their country of origin, the cur- marital-capacity rules, absence of context of forced marriages as it ena- rent preference among legal theorists consent or vitiated consent can be bles relatives of a victim of forced is for application of the law of the made only by the victim, and there is marriage to sound the alert and have country of usual residence, as proba- a very short limitation period. Forced criminal proceedings instituted. bly affording greater protection. marriages also raise serious questions It would also seem to promote about the effectiveness of penalties In practice, in most countries, very observance of the observance of when the rules are broken. few cases are reported. Victims are undertakings with regard to human It is clear from a review of crimi- afraid to go to the police, or feel rights and fundamental freedoms – nal law that few countries have a spe- ashamed, or have little confidence in provided that appropriate provisions cific offence of forced marriage. In the authorities. The point is made in exist in the family-law systems of the most countries forced marriage is the information from many countries European countries concerned. punishable under ordinary law that when victims do make a com- The study sets out the rules on offences. In each case the penalties plaint, perpetrators often receive marriage in all the Council of Europe have regard to the seriousness of any only the minimum penalty, prison member countries reviewed. This aggravating circumstances – whether sentences being rare or relatively covers: marital capacity and exemp- the victim was a minor, whether the short.

Summary 9 Policies, programmes and initiatives to combat forced marriage

The study looks at the various It is clear that there have been The study concludes by reviewing policy approaches to personal protec- fresh developments in national law some of the facilities that can help tion in the different countries, cover- on foreign nationals. Belgium and victims of forced marriages, includ- ing child welfare support measures, France have taken specific measures ing advice centres, shelters and law occupancy and barring orders, orders to combat marriages of convenience, centres. It looks, too, at measures preventing abuse within families, and and French law contains a number of taken among ethnic communities, migration policy measures including provisions directed against forced not only under “integration agree- conditions for family reunification, marriage. It would seem that neither ments” but also involving action at efforts to combat marriages of con- extending the required periods of community, school and club level as venience, and procedures for acquir- proven cohabitation nor giving courts well as police initiatives, training ing the nationality of the spouse. the power to decide if a cohabitation courses, information provision, audi- requirement has been met is likely to In principle, these protection ovisual projects and research pro- counter the problem of marriages of measures are uncontroversial. They grammes. Some countries have pro- convenience in an effective way. If are based, in every country, on laws vided specific funding, introduced some people treat marriage as a mere which have a twofold justification: support measures and set up tele- lever for changing their nationality, it both as rules for immediate applica- phone help lines. More rarely, efforts might seem sufficient, in order to pre- tion with the self-evident aim of pro- have been directed at those responsi- vent marriages of convenience, to tecting minors and the human per- ble for forced marriages. The study break the link between what is a vol- son, and as the expression of suggests that in all such activities a untary step under family law and the international undertakings. Yet obsta- networked approach is the most integration measure currently associ- cles can arise and limit their preven- appropriate for helping people who ated with it. To do so, however, would tive effect with regard to forced mar- have been forced into marriage. run counter to the principles of the riages. Firstly the courts, in their European Convention on Human dealings with families and particu- The concept of a summary of poli- Rights and disregards the question of larly families of immigrant origin, cies, schemes and initiatives suggest- integrating people of immigrant ori- may have limited understanding of ing action in one specific direction is, gin. Is the law on aliens usable to pre- other types of family structure and at this stage, no more than that – an vent marriages concluded under other approaches to dispute settle- idea or rather ambition. It is not a duress? The answer is not straightfor- ment within families. Secondly peo- reality. The fact is that, through the ward. Measures taken by govern- ple’s relationship with the law differs combined effects of demographic, ments to combat sham marriages from one society to another. And economic, historical, political and ought not to result in excessive suspi- lastly different societies interpret social variables, each country has cion being directed at marriages children’s interests in different ways. developed its own particular charac- involving foreigners, and particularly So are there any general principles teristics – hence the range of mixed marriages. Nor, however, applicable with respect to family approaches described. Investigating rights? There is a dual problem here, should it be forgotten that fraud in the issue of forced marriage involves involving both the compatibility of the form of sham marriage can con- questioning the whole mythic edifice different legal systems and the cohab- ceal forced marriage. As well as indi- of opposition and complementarity itation of different cultural systems. vidual cases of marriage fraud, there between the sexes as well as the basic Taking in people from different back- are organised networks that will set concepts of family and society and grounds and respecting what makes up marriages of convenience for for- different perceptions of them. Pre- them distinct does not mean import- eigners unlawfully resident in Euro- venting and combating forced mar- ing practices that compromise basic pean countries who are prepared to human rights. Nonetheless, legal pay large sums of money – the riage is nonetheless essential. It is opinions differ on this question and women being purchased or forced likely that solutions to the problem sometimes end up defending prac- into the union. It is to be hoped that lie both in universally applicable tices which would not be permissible the new requirement in France that institutions and in more specialised under the positive law of countries of the registrar interview intending projects. The study demonstrates that origin, or which would be subject to spouses in order to verify marital action proposals in themselves are restrictions. All this points up just intent will have some effect in com- not enough. Resources also need to what an important role the law can bating both marriages of convenience be made available for assessing the play as a tool for integration. and forced marriages. effectiveness of any measures taken.

10 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives Proposed recommendations The study suggests that action is dence so as to avoid making • Women’s-rights associations needed on a number of fronts: women from immigrant back- should be supported. grounds subject to discrimination • Inter-association networks need Information, awareness raising, with regard to personal status. financial support. education and training • Governments should be encour- • Specific initiatives for women • Women and children should be aged to amend their legislation to need developing as part of munici- better informed about their rights make 18 the minimum marriage- pal policy and policies for integra- with regard to preventing and able age. tion. opposing forced marriages. • A recommendation should be • The gender dimension should be • Information projects need to be made to governments to include in incorporated into policy-making developed for both girls and boys their criminal-law provisions a on ordinary law. at school. specific offence of “forced mar- • Action programmes targeting • There is a need for awareness-rais- riage”, with penalties reflecting those responsible for forced mar- ing among public prosecutors, dip- aggravating circumstances. riages need to be developed. lomatic and consular staff, • Resources are required to assess • Limitation periods for the com- magistrates, police officers and the effectiveness of the proposed mencement of civil or criminal social workers in relation to forced policies and initiatives. proceedings should be reviewed. marriages and the legal, cultural and family problems that women Resources for research into the reality of Policies and initiatives to help those encounter. forced marriages involved in forced-marriage situations • Training programmes about • A working party should be set up women’s civil rights need to be • Contact points need to be devel- to conduct a European-level study developed for those professionally oped where people can report of forced marriages. in contact with the question. their experiences and receive The aims would be: assistance, support and advice. – to raise awareness of the problems Legal reforms • Special accommodation needs to experienced by victims of forced • Treaties that ignore the constitu- be made available, with an empha- marriage and their families; tional principle of male-female sis on respecting personal inde- – to examine legal practices, and pol- equality should be denounced. pendence and providing reception icies and approaches that have • Where there is a choice of law, centres for girls who find them- been introduced, as well as the preference should be given to the selves in emergency situations for roles of those involved in forced- law of the normal place of resi- whatever reason. marriage situations.

Summary 11

Introduction

The word “marriage” signifies the defined by family structure, whether marriage that are imposed for social union between cohabiting spouses. It the family is understood in the reasons. also designates the legal contract extended sense or the restricted This study sets out to examine determining the conditions on which sense of couple and non-adult chil- those marriages that are termed that status is acquired and the rights dren. Although, for a long time, cer- “forced marriages”, and more specifi- and duties that go with it. From the tain societies attached no importance cally to consider the civil and/or jurist’s point of view, the legal con- to the consent of spouses as a mani- criminal law applicable to such tract creating the marital bond is par- festation of their wishes (marriages unions, as well as exploring policy ticularly important, as are certain being imposed on them by others)2 initiatives that have been taken to aspects of the condition of marriage. the individuals who were to be mar- combat the phenomenon. The gen- The classical jurist Modestinus ried eventually acquired a greater say eral hypothesis is that civil and crim- famously defined marriage as “the – with variations between different inal law needs to be reviewed in the union of man and woman, a lifelong places and different eras – in matri- light of internationally recognised community, the sharing of that which monial choice.3 Nonetheless, mar- standards for human rights, and that is subject to human law and that riages continue to take place without consideration must be given to the which is subject to divine law”. The the consent of spouses. In certain impact of forced marriages on same definition, which occurs in the societies, marriage is subject to women, husbands, families and soci- Digest [the key text of Roman law] imperatives of a higher order than ety as a whole. Those most affected (23, 2, 1) and in the Institutes of the the spouses’ individual wishes, which by forced marriage would seem to be Emperor Justinian (1, 9, 1), was used results in family, or indeed state, con- women and – in wealthy industrial- in medieval canon law and subse- trol mechanisms, and prohibitions on ised countries – women from immi- quently became widespread in the grant backgrounds. Information is Christianised West and colonised 2. Roman law refers in this regard to adfectio required to substantiate the case for America. maritalis. See the passage in Demosthenes’ urgent legal reforms, as well as poli- in his speech against Neaira: “For this is cies, programmes and initiatives to Whether family-centred or couple- what living with a woman in marriage is: for prevent forced marriages or at least centred, and whether reflecting reli- a man to beget children by her and present his sons to his fellow clansmen and mem- make them less common and thus gious or secular commitment, the bers of his district and to give daughters as create a basis for further effective condition of marriage can cover his own in marriage to their husbands. Mis- action. Forced marriage is a form of many different circumstances:1 it tresses (hetairas) we have for our pleasure, concubines (pallakas) for daily service to violence and, as such, it should have occupies an interface between vari- our bodies, but wives for the procreation of no place either in Europe or else- ous sets of rules, being addressed not legitimate children and to be faithful guard- where in the world. only by the positive law of states, but ians of the household.” See also J. Boswell, op. cit. also by religious law, systems of 3. J.L. Flandrin, in Les amours paysannes, morality, tradition and social rules of Paris, Gallimard, 1975, demonstrates that Council of Europe Recommenda- acceptable behaviour. It is also from the 17th century onwards, marriage tion Rec (2002) 5 includes forced mar- partners were self-selecting and enjoyed loving relations. M. Segalen, in Mari et riage in a list of acts of violence. It 1. See J. Boswell, Same-Sex Unions in Premod- femme dans la société paysanne, Paris, refers to “violence occurring in the ern Europe, Random House, 1995. In many Flammarion, 1980, p. 20, warns against con- family or domestic unit, including, societies the word “marriage” signifies both fusing love and sexuality. It was essentially the marriage ceremony and long-term mar- in the 20th century that marriages started inter alia, physical and mental aggres- ried life: see J. Gaudemet, Le mariage en being concluded without any intervention sion, emotional and psychological Occident, Paris, Cerf, 1987, p. 14, and from outside parties: see M. Gauthier, abuse, rape between spouses, regular M. Delmas-Marty and C. Labrusse-Riou, Le Amours d’autrefois, témoignages, La mariage et le divorce, Paris, Presses Univer- Crèche, 1998, and M. Valière, Amours pay- or occasional partners or cohabitants, sitaires de France, 1978, p. 17. sannes, Mougon, Geste édition, 1996. crimes committed in the name of

Introduction 13 honour, female genital and sexual marriage and looking especially freedoms? What specific legal meas- mutilation and other traditional prac- closely at mutuality of consent. For ures have European countries taken tices harmful to women, such as the spouses’ consent is both a mental to deal with forced marriages? Here forced marriages”.4 It also makes a process, a psychological or internal we will look at civil and criminal law, connection between forced marriage commitment to going ahead with the laws governing foreign nationals, and and the notion of consent: “Member marriage, and the external expression protective measures. The issue is a states should prohibit forced mar- of that, in a form required by law and broad, complex and technical one riages concluded without the consent of a kind that the other party can take encompassing various questions to of the persons concerned.” cognisance of. do with implementing different Similarly, the Third European “Forced marriage” is an umbrella bodies of law governing families’ sta- Ministerial Conference on Equality term covering marriage as slavery, tus. Administrative and judicial between Women and Men (Rome, 21 arranged marriage, traditional mar- authorities dealing with family dis- and 22 October 1993) addressed the riage, marriage for reasons of custom, putes may, for example, be required subject of violence against women as expediency or perceived respectabil- to apply rules that differ considerably an obstacle to recognition of, and ity, child marriage, early marriage, from their own domestic legislation, respect for, human dignity and integ- fictitious, bogus or sham marriage, or may have to decide how domestic rity. The ministers forcefully con- marriage of convenience, unconsum- law should respond to institutions or demned all forms of violence against mated marriage, putative marriage, practices that are unfamiliar or unac- women as violations of individual marriage to acquire nationality and ceptable from their own institutional human rights. Combating such vio- undesirable marriage – in all of which point of view. lence thus became one of the Council the concept of consent to marriage is We will conclude by considering of Europe’s priorities. at issue. Among the types of marriage policies, schemes and initiatives This was emphasised in the final we have listed, which may only introduced in response to the prob- declaration of the Second Summit of assume their various characteristics lems that forced marriages raise. Heads of State and Government of in the period between marriage What policies have been imple- the Council of Europe (10 and 11 promise and , there is consid- mented to provide counselling serv- October 1997), in which the national erable scope for overlap – hence the ices, shelter or accommodation, sup- leaders affirmed their “determination difficulty of defining precisely what is port, education, training and to combat violence against women meant by “forced marriage”. research? What social, legal and polit- and all forms of sexual exploitation of In the interests of producing a ical agencies may have a helpful role women”. better definition we shall begin by to play? With regard to forced marriages, as looking at these various aspects and All these issues will be addressed in many other fields, it is important how they interconnect. We shall also from a comparative, European per- to note that images and stereotypes attempt to offer an overview of forced spective. Comparing approaches to continue to distort people’s thinking. marriage. Is it a practice that can be the problem in different legal, cul- Where forced marriages involve quantified? On what is it based? What tural and political contexts can only women from immigrant back- is its psychological, emotional, mate- enrich our thinking. There is no grounds, cultural relativism can rial and legal impact on the people doubt that forced marriage is a topical sometimes express itself in a sort of involved? In considering the problem issue, and European countries are reverence for difference that has the it is obviously important to establish caught in the trap experienced by all reductive effect of disallowing any whether forced marriage occurs in democratic societies of the contradic- movement. It is then but a short and only a few isolated and much- tion between tolerance and the rejec- tempting step to the notion that reported cases or whether, in fact, it is tion of intolerance. Leaving people people “of immigrant origin” are widespread and growing. Moreover, free to organise their own family rela- more resistant to certain principles the many justifications put forward tionships can lead to forms of oppres- such as gender equality and individ- for such unions may explain the diffi- sion that are unacceptable. The issue ual freedoms. Jurists, too, are of their culties encountered in trying to stem of forced marriage highlights a con- time. Their task is doubtless to steer the practice. Clearly, attempting to flict about societies’ fundamental marriage towards ends that they address the causes of a phenomenon principles, and places us in a quan- regard as just, which means analys- when they are multiple, and laden dary inasmuch as the liberalism of ing the mechanisms at work in forced with real and serious consequences, democratic countries is possible only is a highly complex task. on the basis of an implicit consensus 4. Recommendation Rec(2002)5 of the Com- The next section of the study con- around certain founding values mittee of Ministers to the member states on the protection of women against violence, siders forced marriage chiefly from a including freedom to consent to mar- adopted on 30 April 2002, defines “violence legal perspective. What international riage, the primacy of the child’s inter- against women” as “any act of gender-based legal instruments are applicable? ests over those of parental authority, violence, which results in, or is likely to result in, physical, sexual or psychological Under private international law, what and equality between the sexes. It is harm or suffering to women, including is the effect of such unions, which fly as true today as it ever was that the threats of such acts, coercion, or arbitrary in the face of the major principles family is not an institution that deprivation of liberty, whether occurring in public or private life”. enshrined in the treaties protecting people can be left to organise as they human rights and fundamental see fit. Even though not all legal and

14 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives political systems are based on the into Europe, has also been gathered was to collect data via semi-struc- same theoretical and philosophical in relation to India, Pakistan and tured interviews with representatives approaches, these ideas ought to Morocco. of social, legal and political agencies – serve as a starting point for a number The research was carried out using and more information was gathered of recommendations to address the a common epistemological frame- problem of forced marriages. work for the different countries, inso- in this way from some countries than This study, which began in Octo- far as it was agreed that available from others. The report is not, there- ber 2004, is a survey of the situation information about forced marriages fore, exhaustive but does set out to with regard to forced marriages in the would be obtained through exchanges offer a fairly broad analysis. It has no following 28 countries: Austria, Bel- of letters and from member states’ ambitions, however, to be a work of gium, Bosnia and Herzegovina, representatives on the CDEG. The sociology. At most, it hopes to Croatia, Cyprus, the Czech Republic, material collected differed from Denmark, Estonia, Finland, France, country to country: some countries unravel the mysteries surrounding Germany, Hungary, Ireland, Italy, supplied information on the defini- forced marriage, to examine the prob- Latvia, Luxembourg, Malta, the Neth- tion of marriage while others submit- lems closely and to suggest a hierar- erlands, Norway, Poland, Portugal, ted the relevant provisions of their chy of principles on which solutions Romania, the Slovak Republic, Spain, civil or criminal codes or code of pri- might be built. Its primary purpose is Sweden, Switzerland, Turkey and the vate international law, and others United Kingdom. highlighted various policy initiatives. to point the way to the future and to More circumstantial evidence, The next step, while attempting to recommend avenues for further taking account of migratory flows take a coordinated overall approach, study.

Introduction 15 Forced marriage: a problem of definition

Before proposing a definition of Clèves dies because he could not the training for marriage, by the “forced marriage” we need to explain obtain from his wife more than the entourages of victorious princes, of what we understand by the compo- amicitia prescribed by theologians, princesses of conquered regions (Rac- nent terms “marriage” and “forced”. and the Princess, having refused the ine), legally codified negotiations Duc de Nemours and retired to a con- about children under 15 years of age Professor Jean Carbonnier wrote vent, also dies – of despair that mar- with a view to uniting families, of marriage as a “union of the spirit riage necessarily means the destruc- houses and estates (throughout the before that of the flesh”.1 Selecting a tion of passion.2 There is a persistent Middle Ages), the practice of old men definition is not straightforward, for notion that people married, in days choosing very young brides (in the two reasons: firstly because the social gone by, because specific interests 17th, 18th and 19th centuries), to and moral dimensions of marriage were at stake, and marriages were marriage as reparation (described in are not easily contained within a legal made by one’s parents, whereas now- the Bible). These were marriages con- definition, and secondly because of adays people marry for love and tracted following abduction, rape or the dual meaning of “marriage”, des- enjoy free choice. Yet parental tyr- kidnapping, which were seen as ignating both the immediate act that anny still exists, as do social problems responses to necessity: unions that initiates the state of being married, rooted in the yoke of forced marriage. were indissoluble but driven by the and the state itself as a continuing In some situations there is still a long imperative of early and abundant 3 condition. In Collins’ English Diction- way to go to the ideal of marriage as child-bearing.” ary the definitions of the adjective an alliance of two free wills, inde- “forced” include “done because of pendent of any procreative function Today, the new circumstances of force”, “compulsory” and “caused by or concern to found a household. Peo- our lives and accompanying changes an external agency”. ple’s image of marriage is, in fact, far of outlook certainly make it easier for removed from reality and actual people to exercise freedom with Recent research in the fields of his- experience. Marriage remains an act regard to marriage, and the image of tory, demography and ethnology is that has implications for the entire freedom is partly accurate – but only beginning to teach us more about community, both in the forms it takes partly. It is also a distorted image, for marriage down the ages, in different and in its “biological” future. some of the practices described above places and social settings. Various are still current. questions can now be answered about As noted in the report on the first who marries whom, at what age staff training initiative in Seine-Saint- Of course, not all nations and not people marry and what the functions all individuals share the same con- Denis (France) on the prevention of of marriage are. It is also possible to ception of marriage or regard it as the forced marriage, organised marriages identify changes that have taken same institution in terms of its con- were, for centuries, the norm in Eur- place and potential new develop- tent or form. The first difficulty we ope. “Scenarios ranged in ancient ments in society, including new encounter is therefore that of defin- times from abduction as a basis for models of family and parenthood. ing “forced marriage”. founding societies and unions (the Surely we have come a long way from case of the Sabine women), through the marriage described in The Prin- 3. See “Prévention de la pratique des mariages cess of Cleves, in which Monsieur de forcés - Première initiative de formation des 2. Christian Biet, Droit et fiction: la représen- personnels du service social en faveur des tation du mariage dans la Princesse de élèves en Seine Saint-Denis”, report by the 1. Jean Carbonnier, Terre et ciel dans le ma Clèves, Littératures classiques, annual sup- Délégation régionale aux droits des femmes riage, Mélanges Ripert, 1950. plement, Klincksieck, 1990. et à l’égalité, p. 6.

16 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives Marriage as slavery: a multiplicity of situations A report on trafficking of women recourse for protection to the law or This description, which covers a for marriage, domestic work and to society generally; she is subject to number of very different marriage prostitution highlighted certain fea- her husband’s arbitrary authority and situations, is not conducive to aca- tures of what might be termed to constant humiliation; she is finan- demic objectivity and we need to “enslavement” marriages: cially dependent; she is intimidated examine it with a certain degree of “The woman has been married in and submissive with regard to violent theory-based caution. At best, we can return for some form of payment (not treatment, divorce and financial identify problems posed by the termi- necessarily monetary) and has no dependence; she is not entitled to nology, and all we can say clearly is control over her own life (particularly leave the matrimonial home and that forced marriage cannot be her sex life); she has not been con- faces threats if she does so.”4 sulted on the choice of husband and defined without reference to the defi- nition of consent. The existence of is not entitled to refuse; she is under 4. Marjan Wijers and Lin Lap-Chew, Traffick- age; she has no control over her preg- ing in women, Forced Labour and Slavery- consent to the creation of the matri- nancies; her authority as a parent is like Practices in Marriage, Domestic labour monial bond depends upon consist- and Prostitution, Preliminary Report, Foun- reduced; she is at risk of rape, assault dation Against Trafficking in Women, ency between two expressions of or murder, with no possibility of Utrecht, October 1996. intent, inner and declared.

Arranged marriage, traditional marriage and marriage for reasons of custom, expediency or perceived respectability: the gap between interior and declared intent Marriage, in many countries, ents issue an invitation to the boy’s families, parental opinion actually involves “marriage brokering”, the family. Dates will be fixed and a party took precedence over the wishes of system whereby a matchmaker or go- will then be held for the families. If a young would-be marriage partners. between makes contact between two special party is held, it Different types of marriage are people who wish to marry. will be then that the husband-to-be arranged by family decision: tradi- “Purely in the context of tradi- brings a ring and a dowry gift for the tional marriage, marriage for reasons 6 tional marriage, it is the norm in Viet- bride.” of custom, expediency or perceived nam for marriages to be arranged, This type of practice is actually respectability, or forced marriage. depending, that is, on the social referred to as “arranged marriage”; it The authors of the report conclude classes to which the parties belong. It is also known as “traditional mar- that “arranged marriage” need not is the practice to use a male or female riage” or “marriage of custom”. There necessarily mean “forced marriage”. go-between, who must be a person of is no legal obstacle in such cases to “Obviously an arranged marriage good family living as one of a couple, the celebration of the marriage: the depends on an ‘arrangement’, i.e. a person of some loyalty who has had only requirement for it to be valid is negotiation and conciliation between children, because that is symbolically that each of the future spouses assent parents and children and between important. This person, man or to it and, at the moment of contract- families and in-laws. The various par- woman, is entrusted by the family ing the marriage, express intent to ties need to reach understanding and with the task of identifying, within lead a genuinely conjugal life. agreement. In this type of marriage the ‘fiances’ or ‘betrothed’ are his or her entourage, a suitable hus- Research in Belgium using ques- 5 involved in the procedure and pre- band or wife.” tionnaires completed by school pared over a long period for the idea “In Morocco, marriage can be a pupils and entitled “Marriage: a of the wedding. In some cases they matter for family decision making. choice for life? A study of young peo- are also entitled to a say in the discus- The common practice is for a young ple’s aspirations and expectations of sions.”8 man’s mother to seek out a fiancée marriage” 7 shows that social and cul- for her son, suggest the girl to him tural origins condition aspirations The authors also point out that, in and arrange a meeting. If he accepts about marriage. While the young western societies, situations like that the choice he tells his parents – who respondents were unanimous in described would tend to fall under then go to see the girl’s parents, identifying love, commitment and the heading of “marriages for reasons bringing small gifts, and ask for her the wish to have children as impor- of expediency”, which they define as hand in marriage. That is the tradi- tant factors, the importance accorded “unions to which, as a rule, both tional pattern. The second occasion to parental opinion differed depend- future spouses agree”. “Forging an of contact may be when the girl’s par- ing on their backgrounds. In some alliance between wealthy families, obtaining an allowance to live on, 5. E. Rude-Antoine (ed.) L’étranger en France 6. Ibid., p.35-36. making a ‘career’ marriage with the […] au regard du droit - Enquête auprès des 7. A. Garcia (ed.), I. Dumont, E. Melan, V. boss’s son or daughter, attempting to populations issues de l’immigration maro- Monshe, Le mariage: un choix pour la vie? secure an inheritance or wishing to caine ou vietnamienne en Ile-de-France Une enquête sur les aspirations et attentes (France), “Droit et Justice” report, Decem- des jeunes envers le mariage, final report, ber 1998, pp. 88-89. 15 June 2004, p.88 et seq. 8. Ibid., p. 89.

Forced marriage: a problem of definition 17 bear a particular name may all be In France, paediatrician Marie- marriage; in the former at least one stronger motives stronger than love.”9 Hélène Franjou, a national health does not consent”.12 Situations exist in which the service doctor working with the At the training course held in spouses may have agreed to let their Groupe des Femmes pour l’Abolition November 2004 by Equal Opportuni- own freedom be restricted by obliga- des Mutilations Sexuelles [Women’s ties and Anti-Racism Centre in Bel- tions imposed through a contract Group for the Abolition of Genital gium (Centre pour l’égalité des chances with a third party for the selection of Mutilation], or GAMS, defines forced et la lutte contre le racisme), the a marriage partner. In order not to marriage as “a marriage concluded arranged marriage was defined as oppose their parents who have without regard for the wishes of the marriage about which the parents 10 arranged a meeting, they may state individual being married”. consulted the children. It was pointed objectively that they desire to be mar- out, however, that a girl might give Social worker Aydogan Sezai, of ried, but their true inner wish may be her consent to a marriage but wish at the Transact Foundation, explains the opposite. In such situations, the a later stage to retract it on the that in the Netherlands there is no real individual intention may simply grounds that she had had no choice. formally agreed definition of “forced have been to express a willingness to The course participants all agreed marriage”. “If one is free to choose marry subject to family agreement. that arranged marriage was experi- one’s spouse,” he comments, “there is Two types of expression of intent are enced as forced marriage even when no question of an ‘arranged’ or present in such marriages, the con- it was concluded with the parties’ ‘forced’ marriage.” He thus brackets tent of the marriage contract, which consent. The classic situation would “arranged marriage” and “forced mar- is objective evidence of intent, and be that of marriage between cousins riage” together. “You can call it an other statements that are outward sig- or members of families from the arranged marriage if people under- nals of supposed intent. same village, or indeed the same line- take to select the marriage partner. In age. An example is the case of the Turk- recent years many new immigrants, In other words, in the tradition of ish girl who came to Germany with mostly women, have ended up in arranged marriages, the families of her family while still very young and shelters for victims of domestic vio- the future spouses are understood to who learns that the family wishes to lence. Most of them have confirmed, play a central role in arranging the marry her off without her consent, in talking to us, that they were marriage, but the choice of whether but says nothing because she is involved in ‘arranged’ marriages. An or not to marry rests with the daunted by the obstacles she would arranged marriage is not, by defini- spouses. In India, for example, stud- face if she voiced dissent. tion, something negative, but a forced ies show that love and other emotions Another is that of the young marriage is. A forced marriage is one have very little to do with marriage: woman of Senegalese nationality, in which the young people involved culture, tradition, caste and commu- aged over 18 and resident in France have no say. All the decisions are nity are still the important factors in since the age of five, who agrees after taken by the parents and the family; the institution of marriage and in her baccalauréat exams to return to the young people are forced to families.13 A study conducted in 11 Senegal, aware that marriage is the marry.” India, involving 3 850 literate young purpose of the trip but electing not to people aged 15-29, revealed that 51 % use the remedies open to her (a dec- Sina Bugeja points out that in of them would prefer to have their laration to the marriages authority of Malta it “is important to distinguish marriage arranged. Clearly attitudes non-consent to the marriage, or a between ‘forced marriages’ and ‘mar- are evolving, however, as 41.8 % said non-consent statement when the riages by agreement’. In the latter they would prefer to marry for love. marriage documents are being regis- case both partners consent to the tered at the consulate). 12. See contribution by Sina Bugeja, Executive 10. M. H. Franjou, “À propos des mariages pré- Director, National Commission for the Pro- Information gathered from people coces et forcés en France et […] ailleurs”, in motion of Equality, 12 October 2004. who deal with the problem throws up “Prévention de la pratique des mariages 13. Sex Education, Counselling, Research, forcés – Première initiative de formation Training and Therapy Department of the questions about the connections des personnels du service social en faveur Family Planning Association of India between “arranged” and “forced” mar- des élèves en Seine Saint-Denis”, report (SECRT), “Attitudes and Perceptions of Edu- riage. compiled for the Délégation régionale aux cated, Urban Youth to Marriage and Sex”, droits des femmes et à l’égalité, p. 14. report of a survey conducted by the Family 11. Interview conducted for the purposes of this Planning Association of India (FPAI), 1990, 9. Ibid., p. 89. report. 33 pp.

Child marriage and early marriage: where lack of maturity makes consent impossible

Under Article 1 of the United below the age of eighteen years marriages” – also known as “early Nations Convention on the Rights of unless, under the law applicable to marriages” – by laying down rules the Child, which was concluded in the child, majority is attained earlier”. about marital capacity which have 1989 and came into force in 1990, “a However, although many coun- regard both to puberty and the pro- child means every human being tries have laws that prevent “child creative function of marriage and to

18 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives the need for a certain degree of matu- from 15 to 18 for women (see Section Such is the view argued in the out- rity in order to marry, in some cases 4 of the Special Marriage Act), the line Council of Europe Parliamentary there is explicit provision for minors impact of the reform has been limited Assembly report on forced marriages to marry subject to parental authori- because people in rural areas have and child marriages, in which rappor- sation or official dispensation. In remained attached to their own tradi- teur Rosmarie Zapfl-Helbling makes a some parts of the world, traditional, tions. link between the two. Her definition of a custom-based and/or religious rules In situations where marriage can child marriage is one “where at least one and practices may also play a signifi- take place between partners aged under of the partners is younger than 18 cant role, so marriages continue to be 18, or indeed much younger, the ques- years old”.15 celebrated according to established tion arises as to whether such young rituals and are not necessarily regis- people are capable of taking an It thus matters little whether we tered. informed decision about a marriage Such a situation is reflected in a refer to “child marriage” or “early mar- partner and indeed about the implica- UNICEF report on early marriage riage”. In all such situations the mar- tions of marriage. What is the age from which notes that in Surinam, riage involves at least one partner who which a child may be considered capa- although the Civil Code stipulates 15 has not attained physical, intellectual ble of giving mature, independent and as the legal minimum age for mar- and emotional maturity, and has there- informed consent to sexual relations or riage, the “Asian Marriage Act”, codi- fore been unable to express full consent marriage? Clearly there is a case for fying practice in a particular popula- to marriage. regarding “child marriages” or “early tion group, recognises a minimum marriages” as a form of forced marriage. age for girls of 13.14 15. See Rosmarie Zapfl-Helbling, “Forced mar- Similarly in India, although a law riages and child marriages”, outline report, 14. UNICEF Innocenti Research Centre, “Early Committee on Equal Opportunities for of 1978 raised the minimum age for marriage”, report, Innocenti Digest, n° 7, Women and Men, AS/Ega (2004) 45, 7 Octo- marriage from 18 to 21 for men and March 2001. ber 2004.

Bogus marriage, sham marriage, marriage of convenience, putative marriage, marriage to acquire nationality and undesirable marriage: an absence of marital intent The terms “bogus marriage”, the grounds that the husband’s only (Sixth Chamber) in Bordeaux on 17 “sham marriage” and “marriage of motive in contracting it had been to March 2004.18 The judges stated that convenience” are used to describe gain entry to France. On 25 October the husband’s behaviour – the fact forced marriages in very specific 2001 the Court of First Instance in that he remained in Morocco after legal contexts. Belgian legal anthro- Chaumont declared the marriage the honeymoon while the wife pologist Marie-Claire Foblets adds to void, and that decision was upheld by returned to France, and that he then the list “marriage to acquire national- the Court of Appeal (First Civil came to France to move in with his ity” and “putative marriage”, although Chamber) in Dijon on 22 January sister – indicated an absence of genu- she notes that these are legal designa- 2004.17 The facts that the couple did ine consent to marriage. They added tions and that her term of choice is not have a shared language and that that the wife’s withdrawal of her “undesirable marriage”.16 the husband had had the banns pub- application when the husband did From the information gathered it lished on the day after the woman finally move in with her merely indi- is clear that some marriages are a arrived in Turkey, as well as the 20- cated that she loved him and was pre- strategy to circumvent the rules that year age gap between the spouses, pared to forgive him. The fact that he various countries apply to foreign were sufficient proof that matrimony had left again some six weeks later nationals. The primary intention was not the husband’s intent. demonstrated that the union was involved is not to found a family but false. The judges used the term “pre- rather, in most cases, to use the mar- Similar considerations applied in tence”, with application solely to the riage as a means of obtaining a resi- another case where a husband had husband. dence permit or nationality. organised a wedding taking advan- Such was the situation in the case tage of his wife’s psychological weak- Again, in the case of a marriage of a woman of French nationality ness and desire to be married. The declared void by the Court of First who was married in Turkey to a Turk- woman applied to have the marriage Instance in Bordeaux on 10 Septem- ish national. The French public pros- annulled, supplying evidence that ber 2002 (a decision upheld by the ecution service applied to the courts the husband’s sole motive had been Sixth Chamber of the Court of Appeal for the marriage to be annulled on to obtain French residence papers. in Bordeaux on 12 May 2004), the On 10 January 2003 the Court of First judges noted that proof of the 16. See Belgian Ministry of the French Commu- Instance in Bergerac declared the absence of consent had been estab- nity, Equal Opportunities Department, marriage void and the decision was lished and that a sham marriage had General Secretariat Research Office, “Mar- confirmed by the Court of Appeal taken place with the intention of iage choisi, mariage subi, quels enjeux pour les jeunes”, colloquy, Brussels, 21 January 2005. 17. Juris-Data, No. 2004-233787. 18. Juris-Data, No. 2004-238056.

Forced marriage: a problem of definition 19 deceiving the local administration in booklet, “The family: its international It is interesting, too, to note the order to obtain a residence permit. In legal dimensions”, that a marriage decision delivered by the Court of fact, in this case the husband had may be regarded as a mariage blanc First Instance in Besançon on 17 Jan- been expelled from France following [the term normally designates uary 2002, and the position taken by a police investigation which led to his “unconsummated marriage”] “if, the judges in the Civil Chamber of the conviction for a criminal offence. when the marriage is concluded, at Besançon Court of Appeal (10 Octo- There is no mention in the 1956 least one of the partners does not ber 2002) 22 on the annulment of a United Nations Supplementary Con- have the intention of leading a genu- marriage between a 50-year-old vention on the Abolition of Slavery, ine married life, i.e. living commu- woman and a Ukrainian national the Slave Trade, and Institutions and nally in a real and ‘sustainable’ man- aged 21. The judges found that the Practices Similar to Slavery of these ner”. 20 institution of marriage had been types of marriage, the purpose of exploited and that the husband’s In her outline report on “Forced which is to circumvent national laws intention had been to obtain the right marriages and child marriages”, Ros- on entry and residence or the acquisi- to reside legally in France; they also marie Zapfl-Helbling uses the term tion of nationality. noted the age difference between the “marriage of convenience” in a sense In the Resolution of the Council of spouses, the absence of cohabitation not confined to the context of immi- the European Union of December and the fact that the marriage was gration law. She characterises it as the 1997, however, they are defined as unconsummated. They used the situation “where people consciously marriages of convenience, i.e. “mar- term “mariage blanc”. exploit the marriage institution in riage concluded between a national order wrongfully to obtain certain of a Member State or a third-country At the Court of First Instance in advantages”, adding: “Most often the national legally resident in a member Melun on 9 January 1996, and then at aim is to obtain a resident’s permit. It state and a third-country national, the Court of Appeal in Paris on 3 June may also be that such marriages are a with the sole aim of circumventing 1997,23 judges refused – on the ground way out of family or cultural pres- the rules on entry and residence of of absence of proof – to annul a mar- sure.” 21 third-country nationals and obtaining riage between a French-Algerian for the third-country national a resi- Similarly, Alexandra Adriaenssens woman and her Algerian husband. dence permit or authority to reside in (Belgium) states that in marriages of The woman had accused her family a Member State”. This complex for- convenience “at least one of the part- and her husband’s family of having mulation constitutes a realistic ners does not have the intention of forced her to marry in Algeria solely response to the types of union leading a genuine married life, i.e. of for the purpose of obtaining a resi- described, in which there is no intent cohabiting in a real and ‘sustainable’ dence permit for her husband. to create a lasting relationship. manner”. The decision in this case offers a The same definition was used in a Marc Mathekowitsch (Luxem- good illustration of the problem of draft resolution on combating mar- bourg) reports in his letter of 18 Octo- distinguishing a forced marriage from riages of convenience tabled in the ber 2004: “The problems surrounding a marriage characterised by absence Belgian Chamber of Representatives. marriages of convenience have been of marital intent. The judges did not The Belgian text also stipulated: “Fic- studied closely by the Ministry of Jus- recognise this marriage as constitut- titious marriages are not forced mar- tice, which has concluded that all ing a form of psychological violence riages. Conversely, however, forced forced marriages are necessarily mar- against the woman and did not con- marriages do, in a certain sense, con- riages of convenience and can thus clude that there had been no consent. stitute fictitious marriages, given that be annulled on the grounds of It was hard to supply evidence there is an absence of consent by one absence of consent by one of the because the marriage had been cele- of the parties and that consent is one spouses. Article 146 of the [Luxem- of the constituent elements in the brated in a foreign country to which bourg] Civil Code states that where 24 19 she had travelled willingly. institution of marriage.” there is no consent there is no mar- The Belgian Equal Opportunities riage.” and Anti-Racism Centre states in its 22. Juris-Data, No. 2002-194160. 23. Juris-Data, No. 1997-022594. 20. Centre pour l’égalité des chances et la Lutte 24. For a decision with the opposite effect, see 19. Belgian Chamber of Representatives, “Pro- contre le racisme, La famille dans ses Court of Cassation, 1st Civil Chamber, 2 position de résolution relative à la lutte con- dimensions juridiques internationales, December 1997, Juris-Data, No.005067: in tre les mariages de complaisance” (Draft booklet (as of 1 January 2003), p. 34 this case a police officer’s testimony corrob- resolution on combating marriages of con- 21. Rosmarie Zapfl-Helbling, “Forced marriages orated evidence against a husband accused venience), 13 July 2004, Doc 51 1283/001. and child marriages”, op. cit. of violence.

Marriage under constraint: violation of the will and restriction of freedom

Forced marriage and marriage This is similar to the position plementary Convention on the Aboli- under constraint are similar con- taken in the 1956 United Nations Sup- tion of Slavery, which lists under cepts: “A marriage is forced where at practices similar to slavery “any insti- least one of the parties does not con- 25. Rosmarie Zapfl-Helbling, “Forced marriages tution or practice whereby […] a sent to it and constraint is used.” 25 and child marriages”, op. cit. woman, without the right to refuse, is

20 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives promised or given in marriage on consultation with them, as well as Such a scenario echoes one of the payment of a consideration in money where families resort to coercive types of marriage described in an opin- or in kind to her parents, guardian, practices, such as emotional black- ion submitted to the French Prime Min- family or any other person or group”. mail, physical constraint, violence, ister by the Haut Conseil à l’Intégration, The Belgian Equal Opportunities kidnapping, locking a child up and and the definition of forced marriage and Anti-Racism Centre makes a sim- confiscating identity papers, if con- contained therein. The document ilar point in its booklet,26 stating that sent is not forthcoming. describes: “a marriage under customary constraint exists where one of the two The French association Voix law, decided on by the family, at partners (or both), whether minor or d’Elles-Rebelles [She-Rebels Speak puberty or even as early as age 10-12. adult, has not consented but has been Out] defines forced marriage as “the The husband, who is normally older, is a constrained to marry. fact of being married against your man chosen by the family, of the same Such situations of constraint may will to someone you know or do not religion, family or ethnicity. The young be compounded by physical coercion, know. It is also a form of physical and girl or teenager in such cases is sub- ranging from unlawful imprisonment psychological violence that leads to jected to intercourse by force, as a rule to physical, including sexual, assault. many problems including psychologi- at the weekend in her parents’ home.” Examples include the case of a girl cal suffering and material and legal In the words of Professor Henrion “it is who expressed opposition to a forced problems.” 28 neither more nor less than organised, marriage and was subsequently sent premeditated rape”.31 In Estonia, forced marriage is not by her family to another country defined under the legislation. Annika where she was held captive and “Forced marriage” is thus not a term Hüvanen suggests to define forced 32 assaulted. with legal content and it is defined dif- marriage as “a marriage conducted In another case, a 13-year-old was ferently in different countries. This is without the full consent of both par- probably because, in cases other than married to man of 40 and forced, in ties or in which duress is a factor”, those where there is actual physical her parents’ home and with their and to include bridal kidnappings and proof that a person’s freedom of consent agreement, to engage in sexual acts violent treatment by third parties. has been denied by physical force or vio- with him. This was a case of both She notes that the meaning of forced lence – eliminating any doubt that the forced marriage and rape. marriage may differ in different cul- marriage was forced – it is not always The reality of such situations is tural contexts and that a distinction easy to determine the relationship confirmed by the information col- should be drawn between “forced between the individual’s inner intent lected from various social, legal and marriages and arranged marriages”. 29 political agencies. and the psychological phenomena asso- In certain circumstances, mar- ciated with the explicit content of the At the training course held in riages brought about by violence marriage contract. The fact is that the November 2004 by the Belgian Equal amount to rape. Christine Jama, a intent expressed when a marriage is Opportunities and Anti-Racism Cen- lawyer with the French association concluded is more than simply the tre, forced marriage was defined as Voix de Femmes [Women’s Voice], terms used to express it: it also depends “the union of young women with states: “To ignore the need for a men whom they do not, or hardly, on all the circumstances in which it is woman’s consent is also to infringe know and with whom they do not expressed. Anxiety and fear can rule out her individual freedom by denying want to live”. All the participants at all thought of resistance, and then there her free choice with regard to whom the training course agreed that a mar- cannot be any genuine consent. Simi- she marries, when she marries and riage could be said to be “forced” if larly it is not always possible to supply her own sexuality. Women in forced families used forms of pressure – proof of emotional threats that can marriages undergo physical, sexual such as emotional blackmail, physi- make individuals vulnerable and pre- and psychological violence, as well as cal constraint, violence or kidnapping vent them from opposing a marriage. deprivation of liberty. It amounts to – in order to obtain a girl’s consent. Study of actual cases reveals a too-sys- rape.” 30 The report “Marriage: a choice for tematic tendency not to recognise that marriages may be forced when they life? A study of young people’s aspira- 28. Quoted by Caroline Durand, “Prévention tions and expectations of marriage” 27 des mariages forcés: que retiennent les have taken place with a view to circum- states that one can use the term lycéen(ne)s des actions de prévention sur la venting immigration rules, i.e. without pratique des mariages forcés conduites au any genuine marital intent. “forced marriage” where parents or sein d’établissements scolaires?”, postgradu- guardians impose on their children or ate dissertation, University of Paris X, Nan- wards a union negotiated without any terre, Psychological and Educational Studies 31. “Les droits des femmes issues de l’immigra- Training and Research Unit, Department of tion”, opinion submitted to the Prime Minis- Educational Studies, October 2004, p. 10. ter by the Haut Conseil à l’intégration, 26. See Centre pour l’égalité des chances et la 29. See contribution submitted by Annika http://www.cfdt.fr, p. 18. lutte contre le racisme, La famille dans ses Hüvanen, Department of Gender Equality, 32. The only uses of the term “forced marriage” dimensions juridiques internationales, op. Ministry of Social Affairs, dated 1 November in French case law in the last 10 years occur cit., p. 33. 2004. in a judgment by the Regional Court in 27. A. Garcia (ed.), I. Dumont, E. Melan, V. 30. C. Jama, “L’accompagnement sociocritique Evreux on 7 May 2002 and a subsequent Monshe, Le mariage: un choix pour la vie? des femmes confrontées aux mariages judgment by the Appeal Court in Rouen Une enquête sur les aspirations et attentes forcés”, in Hommes et Migrations - Femmes (First Chamber) on 20 July 2004 in a case des jeunes envers le mariage, op. cit., p. 88 contre la violence, March-April 2004, where a victim was seeking compensation et seq. No.1248, p. 23. (Juris-Data, No.2004-248626).

Forced marriage: a problem of definition 21 Quantitative data: estimates only

Forced marriage not only assumes ages of 16 and 18. There are very few among 15 to 19-year-olds in sub-Saha- many forms, but it is also practised in national statistics on marriages ran Africa 74% of girls and 5% of boys many regions of the world. Among involving children under the age of in the Democratic Republic of Congo the poorest peoples on the planet it is 14 and even fewer on those involving married under the age of 18; in Niger actually increasing. The Interna- under-10-year-olds, except in Bangla- the figures are 70% of girls and 4% of tional Centre for Research on Women desh where a series of Demographic boys; in Congo 56% and 12% respec- (ICRW) 1 estimated in 2003 that more and Health Studies carried out in tively; in Uganda 50% and 11%; and than 51 million girls aged under 18 1996 and 1997 revealed that 5% of in Mali 50% and 5%. In Asia the cor- were married and that the figure girls aged 10-14 years were married. responding figures are: for Afghani- would rise to over 100 million in the stan, 54% and 9%; for Bangladesh, The same report indicates, using a next 10 years. 51% and 5%; and for Nepal, 42% and sample group of 5 000 women, that in 14%. Parallel figures for the Middle It is hard, however, to determine the Indian state of Rajasthan in 1993, East are: in Iraq 28% of girls and 15% the incidence of forced marriage 56% of women were married under of boys; in Syria 25% and 4%; and in partly because many marriages are the age of 15, and 17% before their Yemen 24% and 5%. In Latin Amer- unregistered and unofficial, and 10th birthday. A study carried out in ica and the Caribbean it is calculated therefore escape any system of data 1998 in Madhya Pradesh found that that 30% of girls and 7% of boys aged collection. Analysis of the informa- almost 14% of girls had been married 15-19 are married in Honduras; the tion gathered from the member between the ages of 10 and 14. In figures for Cuba are 29% of girls and states’ representatives on the CDEG Ethiopia and parts of West Africa, 7% of boys. confirms this problem. No country marriages involving children aged 7-8 has carried out a quantitative survey are not uncommon. Dozens of 13 to Population Council figures suggest to determine the sociological realities 16-year-old girls in these countries that 77% of girls in Niger, 68% in of forced marriages. At best we can commit suicide to escape forced mar- Nepal, 70% in Mali, 62% in Burkina draw on a few small-scale studies and riages. In Ethiopia, “key figures” on Faso and 64% in Yemen married anecdotal information. the “fraternel.com” website put the before the age of 18. According to the UNICEF report proportion of early marriages there at Early marriages are thus more 2 cited earlier, child marriage takes 54.5%. Two ICRW reports 3 indicate widespread in Central and West place all over the world. In parts of that 50% of Ethiopian girls marry Africa (where the respective rates are Africa and Southern Asia it is a before they reach the age of 15. In the 40% and 49%) than in East Africa common practice. In the Middle East, state of Kebbi in northern Nigeria, the (27%) or North and South Africa North Africa and other parts of Asia, average age of marriage is just over (20%). In Asia early marriage is most too, among groups of people with a 11, while the national average for common in Afghanistan, Nepal and traditional way of life, marriages are Nigeria is 17. In Nepal,4 7% of girls Bangladesh. frequently contracted from puberty are married by the age of 10, and 40% In the industrialised countries of onwards. In some parts of West and by the age of 15. Europe, few women marry before the East Africa and Southern Asia, mar- age of 25. In Germany, according to riage well before puberty is not According to figures from the 5 the Federal Statistical Office, 21% of uncommon, and in certain parts of United Nations Population Division, all women entering into marriage are Latin America and Eastern Europe 25 year-old or younger, but among 25 girls frequently marry between the 3. ICRW, “Too Young to Wed” and “Child Mar- riage”: see www.ircw.org year-old women or younger, only 4. UNICEF, “Early marriage”, op. cit. 0,8% enter into marriage and the pro- 1. See ICRW (International Centre for 5. United Nations Population Division, Depart- Research on Women) website: www.ircw.org ment of Economic and Social Affairs, World portion of marriage is 1,2% for the 2. UNICEF, “Early marriage”, op. cit. Marriage Pattems, 2000. population aged 19-25. In Italy, two

22 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives national trends in matrimonial prac- Countries in Europe tend to associ- violence they may nonetheless suffer tice have emerged since the 1970s.6 ate the practice of early marriage a form of oppression. The following On the one hand, young women with migratory flows and the difficul- article describes one such case. (aged 18-34) are tending to remain ties that immigrant families experi- “Mr. K. arrived in France in Febru- longer in the family home (and the ence in becoming integrated. ary 2000, having been married in same tendency is even more marked According to GAMS (Women’s Turkey to a young woman of French among young men). Between 1994 Group for the Abolition of Genital nationality, who had not taken the and 2002, the proportion of women Mutilation), in 2002, in the 14 French necessary steps to have her marriage aged 25-29 living with their parents départements [counties] most affected registered in France. There had been rose from 36.8% to 50.4% (the corre- (eight in Ile-de-France plus those of more than 400 guests at the wedding. sponding figure for young men went Bouches-du-Rhône, Eure, Nord, Oise, Mr. K’s in-laws prevented him from from 60.5% to 72.3%). The increase Rhône and Seine-Maritime), 70 000 10 signing up for French language was particularly marked among to 18-year-olds of immigrant origin classes and his father-in-law made women aged 30-34, the proportion experienced problems with a forced him work, without pay, in his busi- rising in a decade from 12.2% to or arranged marriage. Specifically, in ness. When notice to renew his tem- 36.3% (with corresponding figures for the eight départements of Ile-de- porary residence permit came from men of 24.9% increasing to 36.3%). France, the GAMS estimates that the préfecture [county administrative On the other hand, the average age of some 40 000 young people of immi- office], it was not passed on to him. marriage has risen for women (clos- grant origin have experienced, or When he went there, seven months ing the gap between it and the corre- been threatened with, forced early late, in December 2001, he was issued sponding age for men) and there has marriage. with a receipt acknowledging his been an increase in the number of It is a type of marriage particularly application. He then learned that his young couples living together before common among communities that wife had claimed the marriage was marriage. Between 1994 and 2002, originated in Mali, Mauritania and void and had filed for a divorce in average age at marriage increased by Senegal, but also among groups origi- October 2001. He was subsequently a year for both sexes (from 26.5 years nally from North Africa, Asia and Tur- thrown out by his wife and her fam- to 27.6 years and from 29.3 years to key.9 That is confirmed in the opinion ily, and in July 2002 received a regis- 30.5 years respectively). Civil mar- submitted to the French Prime Minis- tered letter from the préfecture riages are also becoming more com- ter by the Integration Council, which instructing him to leave the country mon: in 1966 they accounted for 1.2% included the following observation: on the grounds that ‘it could not be of all marriages whereas in 1986 the “While communities that originated concluded from the information figure was 14.2% and by 2001 it had in sub-Saharan Africa practise early received in the case that refusal of risen to 26.8%.7 There is a similar marriage of very young girls, often permission to reside in France would trend in all the industrialised coun- under customary law, the practice in disproportionately infringe his per- tries. communities from the Maghreb, sonal and family life. The letter stated that he no longer lived with Mrs. K., Nonetheless, early marriage con- Turkey and Asia tends to be that of he had not been long resident on tinues to be practised in some parts of officially celebrated, arranged mar- 10 French soil and he had continuing Central and Eastern Europe, particu- riages of young adults.” ties with Turkey, where the rest of his larly among Roma and in “the former Forced marriage in France affects family still lived.’ Mr. K. had held a Yugoslav Republic of Macedonia”, not only women, most of them from public-service post in Turkey, from where 27% of the women who mar- the Maghreb, sub-Saharan Africa, Tur- which he had had to resign in order to ried in 1994 were aged 15-19. World- key, Pakistan and India, but also come to France. When he returns to wide, research shows that early mar- young men. It is important to recog- Turkey he will be unemployed. He riage and early motherhood have nise the predicament of men who, as has learned French, having attended been more or less abandoned by the sons-in-law, join spouses in immi- classes since his separation, and has wealthiest sections of society, even in grant communities who may be for- integrated well in his workplace, but poor countries where traditions are eign nationals or French nationals of it is true that he left all his family still strong. Virtually everywhere, foreign origin. In 1999, in the Turkish behind in Turkey. Was his marriage poor women in rural areas tend to community in France, the proportion void? Surely not, with 400 guests at marry younger than those in urban of men entering the country for rea- the wedding! Yet he is being forced to areas, and levels of education also sons of family reunification was 31%, return home a failure – ‘defrauded’ by play a decisive role.8 while the proportion entering as a family known to have used the spouses of French nationals was 64%. same practice with their first daugh- 6. Linda Laura Sabbadini, Come cambia la vita Although men in these circum- ter, and now preparing to repeat it delle donne, Istituto nazionale di statistica, stances are rarely victims of physical Ministerio per le Pari Opportunità, Rome, with their third. The daughters have 2004. consented to the process in the name 7. Source: bill on , “Per la laicità 9. See Isabelle Gillette-Faye, Groupe des 11 dello Stato”, Italian Radical Party. femmes pour l’abolition des mutilations sex- of ‘loyalty to the family’. 8. See table correlating age at marriage with uelles, Paris, 24 January 2002. Marie Lazaridis, a project leader level of education in Sexual Relationships 10. Haut Conseil à l’Intégration “Les droits des and Marriage Worldwide, Alan Guttmacher femmes issues de l’immigration”, op. cit., p. with the French Ministry for Youth, Institute, 1995. 18 Education and Research, reported the

Quantitative data: estimates only 23 case of a young Pakistani who asked knew of cases of marriage under cases. In fact, marriage itself is not a to be placed in residential care to coercion within their circle of characteristic feature of Estonian cul- escape a marriage that his family had acquaintance, while a smaller ture, cohabitation between men and lined up for him: “Legally, nothing number (7%) said they were aware of women being the most widespread could be done because he was an it within their family. Girls were type of shared living arrangement. In adult. The example well illustrates more acutely aware of the problem 1970 there were 9.1 marriages per 1 that, while this is an issue which than boys were (21% awareness as 000 head of population; in 1990 the tends to affect girls, we cannot over- opposed to 14%). Older respondents figure was 7.5 and in 2002 it had look its effects on boys too. Although were more knowledgeable about fallen to 4.31. The number of couples the examples are fewer, they may forced marriages and stated that they contracting marriage in the country help boys to recognise [forced mar- took place frequently in Belgium. fell from 11 774 in 1990 to just 5 853 in riage] as a shared risk.”12 More of the older respondents (39.5% 2002. The average age of men con- The number of school-age girls of 19 to 20-year-olds, as compared tracting a first marriage rose from involved in forced marriages is with 22% of 17- to 18-year-olds and 25.7 years in 1995 to 28.2 years in unknown. There is, however, a grow- 16% of 15- to 16-year-olds) seemed to 2002, while the corresponding ing concern to take steps at the earli- know of actual cases. The replies did increase among women was from 15 est possible age to prevent such mar- not differ between different types of 23.5 years to 25.5 years. riages, and particular attention in this school, but the assertion that forced According to the Estonian Statisti- regard is now paid to primary school marriages were frequent in Belgium cal Office, among a resident popula- pupils. In the French département of was made more often by students in tion of more than 1 370 052, only 2 Val d’Oise, it is estimated that there technical (25%) or vocational (23%) 221 were born in, or were citizens of, are around 15 such cases in schools streams than by those in general certain African and Asian countries.16 every year. The corresponding figure streams (14%). Thirty-two percent of Annika Hüvanen therefore explains in Seine-Saint-Denis is thought to be students on vocational courses knew that the proportion of immigrants in closer to 30.13 of cases of forced marriage, as com- pared with 29% of those studying Estonian society who come from In Belgium there is still very little technical subjects and 19% of those countries more likely to have a tradi- information about the phenomenon taking general subjects. No signifi- tion of forced marriage is relatively of forced marriages generally. Discus- cant difference was noted between small (0.0016%). She adds that many sion of the issue tends to be provoked students with different religious or of the people who come from Asian by news items concerning families of philosophical convictions but knowl- or African countries are students immigrant origin, and it commonly edge of actual cases of forced mar- studying at university in Estonia. arises just before school breaks up for riage appeared more common among Other immigrants resident in Estonia the summer or at the start of a new young people attending an Islamic belong to communities that origi- autumn term. religious education class and particu- nated in countries of the former However, an exploratory study larly among those who said they Soviet Union including Russia, Bela- among pupils aged 15-18,14 commis- wanted their own marriage to be cel- rus, Ukraine and Armenia (together sioned by the Chief Minister of the ebrated by an imam. Students whose they account for around 28% of the French Community and the Equal parents had had primary education population). Immigration into Esto- Opportunities Department of the only were likelier than others to say nia was encouraged under the Soviet Ministry for the French Community that they knew of cases of forced mar- occupation, which began during the has assessed awareness within that riage among people of their acquaint- Second World War. age group of forced marriage, of the ance. Young people whose parents types of situation in which such mar- had not attended secondary school In the United Kingdom, where riages take place and of their conse- were more likely than others to know forced marriage is defined as “a mar- quences. Seventy-four per cent of of cases within their families. riage without the full consent of both parties and where duress is a factor”,17 pupils believed that forced marriages The same study indicated that the the most recent reports suggest there continued to be practised in Belgium. most common motivating factors in are around 1 000 such cases,18 while A minority (16%) added that they forced marriage were desire to obtain older reports put the figure at several a residence permit (in 20.6% of hundred.19 The Home Office esti- 11. See Hommes et Migrations - Femmes contre cases), parental constraint (20.1%), la violence, op. cit., p. 36; see also Gaye mates that 15% of the victims are and the need to make an expected Petek-Salom, “Des gendres et des brus male.20 choisis au pays par les familles turques de child legitimate (20%). Parental con- France”, in Hommes et Migrations - Vies de straint was mentioned more fre- familles, No.1232, July-August 2001. 15. Estonian Statistical Office, HYPERLINK 12. See Marie Lazaridis, “Les filles à l’école: de quently by girls than by boys (53.6% http://www.stat.ee l’égalité des chances à la prévention des as against 48.4%). More boys men- 16. Ibid. based on population figures as of 31 mariages forcés”, in Hommes et Migrations tioned money as a factor (33.7%, as March 2000. - Femmes contre la violence, ibid., p. 46. 17. www.homeoffice.gov.uk/docs2/ujapfm.pdf 13. Ibid., pp 45 and 46. against 17.5% of girls). 18. Ibid., quoting Humayun Ansari, “Muslims in 14. A. Garcia (ed.), I. Dumont, E. Melan, V. Statistics from Estonia show that Britain”, Minority Rights Group Interna- Monshe, Le mariage: un choix pour la vie? tional, London, August 2002. See also Lydia Une enquête sur les aspirations et attentes forced marriage is not a problem Magnoni, “Mariage forcé: tradition ou vio- des jeunes envers le mariage, op. cit. there, and there have been no proven lence”, in l’Essentiel, May 2002.

24 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives In Portugal, Alexandra Carvalho those produced by the Elele associa- The reality is that these quantita- reports that forced marriage takes tion in France, which estimates that tive data, restricted as they are to a place in the Hindu and Ishmaelite 94% of boys and 98% of girls of Turk- few countries and generally fragmen- communities. There have been many ish origin have their marriages tary, do not provide a proper over- reports in the media of arranged mar- arranged by their parents. 22 view of the phenomenon. Nonethe- riages, for payment, involving Portu- less the fact that, while people are Norway has also become a host guese women and foreign men of tending to marry later in industrial- country for immigration to Europe Arab origin – most of the marriages ised societies (between the ages of 25 and 8% of the population is of immi- being celebrated in England (from and 30), marriage under the age of grant origin. The largest immigrant where the men can then enter Portu- 18, or at very early ages, continues to groups are, in order, Pakistani, Swed- gal and obtain legal residence rights). be practised in many parts of the ish, Danish, Iraqis, Vietnamese, A number of cases in which foreign world suggests that a high proportion Somalis, followed by citizens of nationals were regularised in 2001 of such marriages are forced mar- former Yugoslavia (mostly Muslim and 2003 resulted from such mar- riages. It would be extremely useful Kosovars), Iranians and Turkish. The riages (more especially with Portu- to identify the socio-demographic and number of immigrants in Norway has guese women from very poor dis- cultural characteristics of individuals doubled in a decade. In Oslo, where tricts). With the increase in who fear, or who contract, forced almost 22% of the immigrants are immigration from Eastern Europe marriages in each of the countries concentrated (18% of them being of since 2001, there has been an studied. For example, by cross-refer- non-European origin), more than one increase in Portugal in the numbers encing various social indicators such child in four is a foreign national. The of victims of human trafficking, as the age and level of education of Oslo-based association, Human exploitation and prostitution. Organi- the young people involved, their Rights Service, reports that between sations that assist immigrants have countries of birth and their father’s 1996 and 2001, 82% of Moroccan girls recorded a few cases of forced mar- and mother’s socio-economic back- of Norwegian nationality were mar- riage.21 grounds, the number and sex of their ried to Moroccan citizens. Among siblings, the family religion and the In the Netherlands, Aydogan Sezai Pakistani girls of Norwegian national- frequency of visits to their country of of the “Tra n sa ct ” Foundation reports ity, 76% marry Pakistani citizens. origin, we could achieve a clearer and on the situation of Turkish women Hege Storhaug described young more realistic picture of the phenom- who arrive in the country aged Muslim girls as “human visas in a enon of forced marriage. We could between 16 and 21, having undergone new form of trade”, noting that the thus assess various factors including a forced marriage. Eighty per cent of practice of marriage to acquire resi- the numbers of such marriages and them, as girls aged 16-17 could not dence rights was encouraged by the their different dimensions (child have consented to marriage. Only laws on family reunification.23 This marriages, arranged marriages, mar- 20% were consenting. “Most of these description reflects the view of the riages of convenience, etc.), identify girls fall in love with a boy from Eur- association Human Rights Service the regions where they take place and ope. [They] suffer psychological vio- and not this of the Norwegian Gov- develop more pertinent responses to lence and physical constraints includ- ernment. the problem. We could analyse its ing false imprisonment. If the girl In Germany no reliable statistics incidence more closely, taking into refuses to submit to the marriage she on the extent of the problem are account not only economic circum- is beaten by her parents, most com- available. The Federal Government stances (including unemployment monly her mother. It is often the has not yet compiled any information and impoverishment), but also politi- mother who first resorts to violence, on the incidence and nature of forced cal crises and armed conflicts that and her example is then followed by marriages in the country. Prelimi- could have an aggravating effect inas- the father and brothers. In the Neth- nary conclusions from a recently much as they generate insecurity and erlands, forced marriages are an issue published study entitled “Health, vulnerability. among the largest groups of migrants Well-Being and Personal Safety of such as the Turks and Moroccans, but In conclusion, the phenomenon of Women in Germany” – the sample they also affect young Pakistani and forced marriage cannot be seen from group for which included a propor- African girls. In some cases boys too the same angle in all regions of the tion of the population of women of undergo forced marriage with a girl world, and we need a wide range of Turkish origin – suggest, however, from the country of origin.” Figures approaches according to the different that forced marriage is practised.24 for the number of forced marriages in contexts in which we study it. More the Turkish community are similar to specifically, in countries where it is a 22. R. D’Hoop, “Les mariages forcés”, report for Amnesty International: practice associated with migration, 19. www.homeoffice.gov.uk/docs/pcfoma.pdf: see http://www.amnestyinternational.be/ we need to consider not only the rel- M. O’Brien, B. Roche, K. Vaz and P. Scotland, doc/article.php3?id_article=4338 evant systems of civil and criminal “Forced marriage – the overseas dimen- 23. See www.racismeantiblanc.bizland.com/ sion”, 4 August 2000. See also extract from silenceselectif/bid42.htm: “L’inquiétude des law and necessary legal reforms, but “Dealing with cases of forced marriage”. Norvégiens”, 21 September 2003. also the way in which matters of pri- 20. Ibid. 24. The German Federal Ministry for Family vate international law are addressed 21. From an interview with Alexandra Car- Affairs, Senior Citizens, Women and Youth valho, of the Portuguese Council for Refu- (BMFSFJ) has posted an English-language (action under international human- gees summary of this study on its website. rights agreements, the problems of

Quantitative data: estimates only 25 classifying the phenomenon and con- dence over compliance with foreign the problem of forced marriages and flicts about choice of law and whether law). Description of a few actual reinforce the urgency of tackling it. enforcing public policy takes prece- cases will improve our insight into

26 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives Actual cases: how media interest can generate awareness

Marriage is a major life event to choose a future partner. When it is the following summaries of a few based on a choice. But it can also forced upon young people, it plunges cases that attracted media coverage assume a different form – as the ulti- them into misery and drives them to and raised public awareness of the mate denial of the individual’s right seek help. This should be clear from issue.

Fatoumata Konta

Return to the home country and a young girl’s struggle

Schoolgirl Fatoumata Konta had Dakar before going on to her grand- money. His letter took a month to been in love with a young French parents’ home in Casamance. But her arrive. The girl managed to recover national for six months. In February father then arrived to stay for a week. her passport among her father’s 2000 she told her parents about him – Two weeks passed and they were still things, and she then boarded a bus. her father first. He reacted with in Dakar. Fatoumata suggested that The women in the village were on shock and stopped speaking to his she should spend a few days with her her side, disapproving of the father’s daughter, probably in part because grandparents because it was drawing attitude, and her departure was not the young man in question was near the date for her return to France, mentioned. Her one thought was to white, but also because he could not where she had to sit her baccalauréat get away, and she was prepared to kill accept that his level-headed daughter exams. Her father asked Fatoumata herself if she failed. On arrival at a had actually become involved with a for her passport in order to go to the hotel in Kolda at 10 pm, she tried to boy. That same month, Fatoumata airport. Father and daughter then set register under an assumed name. left home to move in with her boy- off for Casamance with no further “You don’t need to do that,” the hotel friend. mention of the return trip. At her manager told her. “Everyone here Her mother, who had been on hol- grandparents’ home the girl became knows you. You are FK. We won’t say iday, returned and paid a visit to the anxious. It was then that she learned anything.” At dawn the following senior student counsellor responsible of her father’s intention that she morning she took a taxi-bus to Dakar, for Fatoumata, to report that every- should never return to France. and that same evening boarded thing had been resolved. Fatoumata Meanwhile, after the Easter holi- another bus bound for France. Later moved back home only to find that days, when there was no sign of she learned that instructions had nothing had changed and that her Fatoumata, students and teachers at come from the President’s office that father still refused to talk to her. her school decided to take action: she was to be let through at the air- She then came up with a plan to go they got up a petition and collected port. Fatoumata sat her baccalauréat. and consult her grandparents and signatures from both staff and pupils. The following year she entered the elder brother in Casamance in Sen- Fatoumata’s father was then called to Lycée Lamartine to take a prepara- egal. She told her mother, and her see an advisor to the President of Sen- tory course for a high-flying degree, mother spoke to her father about it. egal, Abdoulaye Wade. By this time and a year later she went to the Uni- He paid for her air ticket. The girl Fatoumata had been in Senegal for versity of Paris IV to study French. arrived in Senegal on 13 April 2000 to two months. She had sent a letter to She has since set up the Association stay at the home of her father’s her boyfriend explaining the situa- Fatoumata pour l’Emancipation des second wife for a fortnight. Her plan tion and, in his reply, he had sent her Femmes [Fatoumata Association for was to spend two or three days in an address in Dakar and some Women’s Emancipation] (AFEF).

Actual cases: how media interest can generate awareness 27 Luisa Toumi

Arranged marriage with an unknown partner

In 1994, when she was aged 17, she returned to France and was accuses her father of having threat- Louisa Toumi found herself married placed in a home. A few weeks later ened her there, putting a knife to her to Abdelaziz Amri (31): the marriage she left it to meet her husband for the throat, and her husband of having had taken place by proxy at a cere- first time: he was staying with an raped her after dragging her by the mony in Bouhouria, in a small village uncle in Nanterre. Traditionally a hair. In May 1995, after several near Oujda (Morrocco), and had been “marriage ceremony” months of married life, she turned to arranged by the parents of the marks the start of a couple’s life the county social services depart- couple-to-be. Louisa had been living together. In November 1994, three ment and took refuge with them. The in the country for a year, having been months after the marriage the two case came before the Assize Court in sent back there from France by her families were invited to the celebra- Melun, where the father was prose- father. After the arranged marriage tion in the girl’s family home. Louisa cuted for aiding and abetting rape.

Aïssitou

National of both France and Mali: a trip to meet the family turns into an unwanted marriage

“We’ll go back home this summer”, riages, they had learned of her story want to stay in Mali. Despite her her father had announced. By home, from an educational social worker to opposition, her tears and her despair, he meant the village in Mali from whom she had sent a despairing let- the marriage went ahead. Shortly which he had emigrated many years ter: ’I am more dead than alive,’ she after it, her parents returned to previously, long before his daughter’s had written. ’You are my only hope.’ France. She was thus abandoned to a birth. Aïssitou had grown up in The social worker had alerted the France with dual nationality and was local youth court but Aïssitou’s dual polygamist in his forties who had no attending high school there. She had nationality meant that she was sub- qualms about beating her when he been brought up to respect African ject to the national law of Mali. The wanted sex. She was kept locked up traditions and working-class neigh- TV journalists travelled there and and isolated. After a year and a half, bourhood values. She would have pre- managed to contact her. […] By and thanks to the journalists’ com- ferred to spend the summer at a means of deception she succeeded in plicity and initiative, Aïssitou man- youth camp but she knew not to chal- meeting them and telling them of the aged to escape. On her arrival at lenge any decision of her father’s. nightmare she had experienced. On France’s Roissy airport, there was no Besides, the trip would be an opportu- arrival she had been greeted by beat- one to meet her. In her family’s eyes nity for discovering her roots and get- ing drums – to celebrate her mar- ting to know the rest of her family. At riage, she was told. The whole thing she had become a pariah – a creature 17 years old, she was embarking on a had been planned and organised, of shame. She no longer had any journey to hell. Several months later, with the husband chosen well in friends or any sense of direction … journalists at the television channel advance. The only problems were How was she to rebuild her life?”1 France 2 managed to trace her. Work- that Aïssitou did not know him, did ing on a report about forced mar- not want to get married and did not 1. Lien social review, 27 June 2002, No.627.

Fadime Sahindral

Killed by her Turkish father for dishonouring her family

In 1998, Turkish immigrant Rahmi died in a car accident. Three years after 21 years there he had not yet Sahindral was found guilty by a Swed- later, Rahmi Sahindral shot his daugh- mastered the language. ish court following a prosecution ini- ter dead – in an incident which raised What we describe here are just a tiated by his daughter Fadime and questions about the circumstances of few illustrations of situations relevant her boyfriend Patrik Lindesjos. Sahin- the accident that had killed her to forced marriage. Many other exam- dral had, on more than one occasion, ples have been documented,2 notably fiancé. Unrepentant, Sahindral threatened the couple with death if concerning the Indian state of Rajas- declared that he regarded the murder they did not separate. Despite their than and the day known as Akha Teej victory in court, however, the pair as justifiable: his daughter had dis- when marriages between boys and were to suffer a tragic fate. A month honoured her family by her relation- girls are celebrated en masse; Bangla- after the verdict, just as they were ship with the Swede. Sahindral had about to begin life together, Lindesjos been living in Sweden since 1981, yet 2. UNICEF, “Early marriage”, op. cit.

28 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives desh, where many girls are married they leave their villages to seek work We could thus establish whether all shortly after puberty, partly to ease in urban areas, and also to prevent forced marriages have certain the financial burden on their parents the girls being kidnapped on their common characteristics, underlying and partly to protect their sexual way to school. causes and consequences, and could integrity; and Albania, where families It would be extremely valuable to make governments aware of the encourage girls to marry young in document such cases in all the coun- importance of research into what is order to grab likely husbands before tries studied and to pool experience. not, sadly, a rare phenomenon.

Actual cases: how media interest can generate awareness 29 The many related factors behind forced marriage

There are many reasons why connected with migration, for exam- and the difficulties of making con- forced marriages take place. The ple: quests among the opposite sex; underlying factors differ depending • parents’ desire to ensure that their on whether we look at countries children do not lose their tradition • a concern in some families to where such marriages are perpetu- and cultural codes or become restrict mixed marriages. ated by rural, often poor families, or overly “Europeanised”; at European Union countries where Whatever the factors at work, • parents’ wish to reassert their own they are practised among families of anthropologist Nicole-Claude Math- original identity through their immigrant origin. ieu describes the continuing practice daughters’ upbringing; of forced marriage in these terms: “an From all the information collected, • a concern to perpetuate the migra- invasion of women’s bodies and it would seem that marriage is tory process through the arrival of minds […] by the constant and con- regarded as a strategy for construct- new immigrants as spouses; straining physical and mental pres- ing families, a focus of financial trans- actions and a means of protecting • the importance attached to the ence of men to whom they must sub- 1 girls. Forced marriage may be repayment of debt, in the sense of mit”. Mathieu argues that consent explained by one or more of the fol- returning financial assistance: depends in all cases upon prior lowing factors: families who have emigrated to awareness of the balance of power. Europe may have received help Women consent to be dominated not • the pressure of patriarchal culture from relatives at home who look for utilitarian reasons, or because and obedience to one’s father; after their business interests there they accept prevailing standards, but • the importance of maintaining or keep the assets accumulated by because the very fact of their subjec- family honour and the wish to pre- the migrants within the family; tion can prevent them from appreci- serve a girl’s virginity; • deteriorating relations between ating the extent of the domination 2 the sexes, compounded by finan- exercised upon them. • the need to ensure that older cial and social insecurity and the people are cared for (families difficulties experienced by sons in Collecting information about the believing they will be better pro- attempting to integrate; factors that underlie forced marriages tected and looked after by a spouse is thus essential if any effective selected from within the family • the rise of religious fundamental- awareness-raising policies are to be circle); ism in different forms, squeezing put in place or preventive initiatives out secularism and generating a taken. Once governments recognise • a preference for cross-cousin mar- distorted image of the woman’s the types of factor mentioned – which riages with a view to the transmis- role; sion of assets; are used to justify forced marriages – • the impact of urban social policies they will be better equipped to argue • a strategy for reinforcing the which cater mainly for young men that they constitute a violation of mother-in-law’s authority, provid- (i.e. older brothers) and create human rights. ing her with a docile daughter-in- neighbourhoods lacking in any law. social mix; 1. N.C. Mathieu, L’anatomie politique, catégo- risation et idéologie de sexe, Côté femmes, Forced marriages may also be • a crisis in relation to marriage and Paris, 1991. encouraged by factors specifically sexuality in some communities 2. Ibid., p. 232.

30 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives The collective and individual consequences of forced marriage

For both boys and girls, forced tional, medical, financial and legal marriage has psychological, emo- consequences.

Psychological and emotional problems

As the real situations described break with one’s family – including friends outside the family. When they above make clear, forced marriage, one’s brothers and sisters – is a hard leave the family their school friends with all its inherent risks of psycho- choice to make, and it often results in reject them, accusing them of lacking logical, sexual and/or domestic vio- a parallel rejection by village commu- respect for their parents. The notion lence, places the girls or boys con- nities. of freedom, which is often idealised, cerned in a vulnerable position. A “Those who flee from the family can prove illusory. The emphasis that person forcibly married may experi- sometimes do so at great cost. A girl is placed in Germany and other west- ence a loss of self-confidence and who runs away exposes herself to ern societies on autonomy and indi- begin to exhibit ambivalent behav- reproach from all her relatives viduality masks a reality of isolation iour. In the case of marriages involv- because, through her desire for inde- and fear of weakness or failure. Inde- ing minors, parents bear responsibil- pendence, she has diminished the pendence can come at the same ity for the sexual violence involved, family’s standing in the eyes of heavy price even for young German and become accomplices in the rape friends and neighbours. Young girls girls. They often find themselves in of their child. Many girls or boys in who flee refuse to explain why they one-to-one relationships in which such situations experience powerful have done so and they are then family patterns are recreated, and feelings of guilt, as well as shame and accused of being selfish and immoral. they end up making a precipitate a sense of having betrayed the family. If they have to stay way from their return to the family.” 1 Sometimes they fear – with justifica- families for long periods they often tion – that their younger brothers or lose contact with other members of 1. Bikim Bayam Tekeli, “L’association Papatya et l’accueil des jeunes filles à Berlin”, in sisters may be made to pay if they their entourage, to whom they are Hommes et Migrations - Femmes contre la refuse a forced marriage. Deciding to close. Very few girls have a circle of violence, op. cit. p. 110.

Health damage

Forced marriage has many poten- tion. The girls or young men involved ity, loss of interest in school, running tial medical consequences, ranging may suffer psychological troubles away and even drug addiction), and from early pregnancy, through HIV such as sleep problems (including various somatic disorders (notably infection, to hepatitis B and other sex- nightmares), eating disorders (typi- abdominal pain). Some individuals ually transmitted diseases which can cally anorexia and bulimia), behav- lapse into severe depression that can be contracted more easily in deflora- ioural difficulties (including irritabil- even lead to suicide.

Financial and legal difficulties

Many victims of forced marriage of independence. In order to escape native accommodation and a source are driven to leave the family home the forced marriage and the clutches of financial support. and thus have to deal with the reality of the family they need to find alter-

The collective and individual consequences of forced marriage 31 In addition, if the marriage has Clearly, as well as receiving finan- marriage and similar practices and, actually taken place, the person mar- cial and logistic help, individuals who on the other hand, to bring forward ried by force needs to resolve the have undergone forced marriage policies and action plans specifically legal problems of having it annulled need freedom to exercise their eco- aimed at tackling the situations in or severing the marriage bond, and nomic, social and legal rights. They question and their consequences. It is will also need help with obtaining also need enabling to defend their also essential to ensure that any compensation. Girls or young men human rights and basic freedoms. measures taken are effectively may find themselves without identity Governments must be encouraged, applied. documents if these have been confis- on the one hand, to take measures cated by their families. both to prevent and punish forced

32 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives Partial responses in law, and the limits of the legal approach

The aim in this study has been to Legal provisions in each of the compile a sort of inventory of rele- countries studied were classed under vant legal provisions in each of the 28 four headings: countries reviewed and, most impor- • international legal instruments;1 tantly, to consider what effect they • private international law; 1. Regarding international legal instruments, have had in preventing or combating • civil law; the study covers the 46 Council of Europe forced marriages. • criminal law. member states.

Beyond international legal instruments

Protecting a person from forced The Convention for the Protec- signed and ratified by Denmark, the marriage is not straightforward, and it tion of Human Rights and Fun- Netherlands, Poland, Romania and is encouraging to note the gradual damental Freedoms, signed in Sweden, signed by France, Greece, development of a web of interna- Rome on 4 November 1950, reaffirms Ireland and Italy, adopted by Austria, tional legal instruments laying down (Article 12) the universal right to Azerbaijan, Germany, Finland, Hun- general principles about marriage marry, in the following terms: gary, Iceland, Norway, Spain and the and freedom to marry, although there “Men and women of marriageable United Kingdom, and taken over by are obvious problems with their age have the right to marry and to Bosnia and Herzegovina, Croatia, the application. These instruments are found a family, according to the Czech Republic, the Slovak Republic listed below. national laws governing the exercise and “the former Yugoslav Republic of of this right.” Macedonia”. It reaffirms that all states should The Universal Declaration of Resolution 843 (IX), of 17 Dec- take all appropriate measures with a Human Rights, adopted on 10 ember 1954, the General Assembly of view to abolishing such customs, December 1948 in Paris by 58 states the United Nations declared that cer- ancient laws and practices by ensur- of the General Assembly of the tain customs, ancient laws and prac- ing, inter alia, complete freedom in the United Nations, mentions the right to tices relating to marriage and the choice of a spouse, eliminating com- found a family (Article 16 -1): family were inconsistent with the pletely child marriages and the principles set forth in the Charter of betrothal of young girls before the age “Men and women of full age, with- the United Nations and in the Univer- of puberty, establishing appropriate out any limitation due to race, nation- sal Declaration of Human Rights. penalties where necessary and estab- ality or religion, have the right to lishing a civil or other register in The United Nations Convention marry and to found a family. They are which all marriages will be recorded. of 7 November 1962 on Consent entitled to equal rights as to marriage, to Marriage, Minimum Age for Article 1 (1) states: “No marriage during marriage and at its dissolu- Marriage and Registration of shall be legally entered into without tion.” Article 16 (2) states further that Marriages,2 which came into force the full and free consent of both par- “Marriage shall be entered into only on 9 December 1964 in accordance ties, such consent to be expressed by with the free and full consent of the with provisions of Article 6, has been them in person after due publicity and intending spouses.” in the presence of the authority compe- 2. See United Nations Treaty Collection, vol. tent to solemnise the marriage and of 521, p. 231. witnesses, as prescribed by law.”

Partial responses in law, and the limits of the legal approach 33 Article 1 (2) adds: “Notwithstand- March 1976 under the provisions of ing punishment and treatment, ing anything in paragraph 1 above, it Article 49, to which all the member shall be prohibited.” shall not be necessary for one of the states of the Council of Europe are parties to be present when the com- Parties, except Andorra and Turkey The Convention on the Elimina- petent authority is satisfied that the which only signed it – includes the tion of All Forms of Discrimina- circumstances are exceptional and following provisions: tion against Women, which came that the party has, before a competent – Article 23 (2): “The right of men and into force on 3 September 1981 in authority and in such manner as may women of marriageable age to marry accordance with the provisions of be prescribed by law, expressed and not and to found a family shall be recog- Article 27 and has been signed and withdrawn consent.” nised”; ratified by many states, including the member states of the Council of Article 2 is also relevant: “States – Article 23 (3): “No marriage shall Europe except Monaco and San Parties to the present Convention be entered into without the free Marino – includes, in Article 16, the shall take legislative action to specify and full consent of the intending following stipulations: a minimum age for marriage. No mar- spouses”; riage shall be legally entered into by “States Parties shall take all appro- – and Article 23 (4): “States Parties to any person under this age, except priate measures to eliminate discrim- the present Covenant shall take where a competent authority has ination against women in all matters appropriate steps to ensure equal- granted a dispensation as to age, for relating to marriage and family rela- ity of rights and responsibilities of serious reasons, in the interest of the tions and in particular shall ensure, spouses as to marriage.” intending spouses.” on a basis of equality of men and women: [the] same right to enter into Resolution 2018 (XX), of 1 The Convention of 14 March marriage; [and] the same right freely to November 1965, recommends that 1978 on Celebration and Recog- choose a spouse and to enter into mar- each member state should take the nition of the Validity of Mar- riage only with their free and full con- necessary steps to adopt such legisla- riages, signed only by Finland, Por- sent. tugal and Egypt – states, in Chapter 2 tive or other measures as may be “The betrothal and the marriage of on recognition of the validity of a appropriate to give effect to the fol- a child shall have no legal effect, and all marriage, that a contracting state may lowing principles: necessary action, including legisla- refuse to recognise the validity of a “No marriage shall be legally tion, shall be taken to specify a mini- marriage where, under the law of that entered into without the full and free mum age for marriage and to make the state: consent of both parties, such consent registration of marriages in an official to be expressed by them in person, after “[…] one of the spouses had not registry compulsory.” due publicity and in the presence of the attained the minimum age required authority competent to solemnise the for marriage, nor had obtained the The Universal Islamic Declara- marriage and of witnesses, as pre- necessary dispensation; or […] one of tion of Human Rights, adopted scribed by law.” (Principle 1-a); the spouses did not have the mental by the Islamic Council and promul- capacity to consent; or […] one of the “Marriage by proxy shall be permit- gated by UNESCO on 19 September spouses did not freely consent to the ted only when the competent author- 1981, states: marriage.” (Article 11) ities are satisfied that each party has, “Every person is entitled to marry, before a competent authority and in to found a family and to bring up chil- The African Charter of Human such manner as may be prescribed by dren in conformity with his religion, and Peoples’ Rights, adopted on law, fully and freely expressed consent traditions and culture” (Article 19-a). 26 June 1981, which entered into before witnesses and not withdrawn In Islam, marriage is a universally force on 21 October 1986, and by 1 such consent.” (Principle 1-b); recognised right. Islamic law January 1994 had been acceded to by “Member States shall take legisla- acknowledges it as the legitimate 49 member states of the Organisation tive action to specify a minimum age means of founding a family, ensuring of African Unity, provides: for marriage, which in any case shall that one will have descendants and not be less than fifteen years of age; no – Article 4: “Human beings are invi- maintaining individual chastity, and marriage shall be legally entered into olable. Every human being shall be the Koran contains the exhortation: by any person under this age, except entitled to respect for his life and the “O mankind! Reverence your Guard- where a competent authority has integrity of his person. No one may ian Lord, who created you from a granted a dispensation as to age, for be arbitrarily deprived of this single person, created, of like nature, serious reasons, in the interest of the right”; His mate, and from them twain scat- intending spouses.” (Principle 2) – and Article 5: “Every individual tered (like seeds) countless men and shall have the right to the respect of women.” (4:1) The International Covenant on the dignity inherent in a human The Declaration also states that Civil and Political Rights of 19 being and to the recognition of his “No person may be married against his December 1966, adopted and legal status. All forms of exploita- or her will.” (Article 19-a). Thus nei- opened for signature by the UN Gen- tion and degradation of man, par- ther boys nor girls may be con- eral Assembly in Resolution 2200 A ticularly slavery, slave trade, strained to marry a person for whom (XXI), which came into force on 23 torture, cruel, inhuman or degrad- they have no inclination. Sunna Abu-

34 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives Daud Book 11 (No. 2091) records: “A Council of Europe Committee of International Covenant on Civil and virgin came to the Prophet […] and Ministers Recommendation Political Rights. Cameroon, Congo, mentioned that her father had mar- Rec(2002)5, to member states on Côte d’Ivoire, Mali, Somalia, India ried her against her will, so the the protection of women against vio- and Vietnam have adopted the same Prophet […] allowed her to exercise lence and its explanatory memoran- agreement. Only Mauritania and her choice.” dum, is also relevant. Pakistan have neither signed nor rati- All these declarations, conven- fied it. The Convention on the Elimi- tions, resolutions and recommenda- nation of All Forms of Discrimination Protocol No.7 to the Convention tions, representing as they do forms against Women has been signed and for the Protection of Human of international “summary jurisdic- ratified by Tunisia, Congo, Cam- Rights and Fundamental tion”, give grounds for hope. Taken eroon, Senegal, Côte d’Ivoire, India Freedoms, signed in Strasbourg on together, they suggest the emergence and Vietnam. Turkey, Pakistan, Mau- 22 November 1984, states (Article 5): in the different countries of a degree ritania, Morocco and Algeria have of standardisation around a straight- adopted it. Somalia has neither “Spouses shall enjoy equality of forward concept – that everyone has signed nor ratified it. Many of the rights and responsibilities of a private the right to marry and found a family, countries in question are also signato- law character between them and in that child marriage (i.e. where a ries to the African Charter of Human their relations with their children, as to spouse is not yet of marriageable age) and Peoples’ Rights of 26 June 1981, marriage […].” cannot be permitted and that all mar- the 1990 Declaration of the Organisa- riages require the free and full con- tion of the Islamic Conference, or the The Declaration of the Organisa- sent of the future spouses, expressed Bamako Declaration of 29 March tion of the Islamic Conference, in person before a competent author- 2001. adopted in 1990 in Cairo, reads: ity in the presence of witnesses – but Today, absence of coercion to it would be wrong to assume that this marry and respect for marital capac- “The family is the foundation of in itself can effectively guarantee ity have thus become for the majority society, and marriage is the basis of freedom and choice with regard to of these countries – notably by virtue its formation. Men and women have matrimony. of their commitment to the principles the right to marriage, and no restric- All the countries reviewed have of international instruments for the tions stemming from race, colour or signed and ratified at least two, and in protection of human rights and fun- nationality shall prevent them from some cases more than two, relevant damental freedoms – the primary enjoying this right” (Article 5). international agreements. And while values and criteria for assessing indi- forced marriages in the so-called viduals’ behaviour in family relation- “immigration countries” tend to take ships. Freedom to marry, independ- The Declaration adopted in place among communities who origi- ent choice, and the rejection of early Bamako on 29 March 2001 by nated in the Maghreb, other parts of marriage are clearly essential, and French-speaking African Minis- Africa, India, Pakistan, Vietnam or anything that compromises those ters with responsibility for child Turkey, it is important to emphasise principles must be rejected. In addi- protection recalls that, ”the con- that these countries, too, have com- tion to this international level of pro- sent of concerned subjects must be mitted themselves to respect for tection, marriage is governed by spe- freely demonstrated. If not so, the mar- human rights. Algeria, Morocco, cific domestic provisions in each riage is invalid and every sexual act Tunisia, Turkey and Senegal, for country and by the rules of private must be considered as sexual violence.” example, have signed and ratified the international law.

Forced marriage and international private law

The question of forced marriage is tic law of unions that breach the key has come into conflict in recent years related to an issue that has preoccu- principles enshrined in the agree- with the legal traditions of other parts pied jurists for a number of years: ments protecting human rights and of the world. There are, moreover, how to take account, in the context of fundamental freedoms. In modern significant differences between private international law, of family Europe, half a century after the national legal systems as to how they practices that are unlawful under United Nations General Assembly treat “personal status”. In Muslim such law, being dictated by laws and adopted the Universal Declaration of countries, for example, the concept customs that disregard private inter- Human Rights and the agreements embraces the property relationships national law. that followed on from it, the legal between couples and such matters as National judicial and administra- position of immigrant families consti- inheritance and gifts, which fall out- tive authorities dealing with such sit- tutes, to some extent, a test of their side the scope of “personal status” uations 3 may have to apply rules sub- implementation. provisions in most EU countries. stantially different from the The question of forced marriage is Differences in “personal status” corresponding provisions in their covered by the area of family law con- law are a source of complication with own legal systems, or may have to cerned with “personal status”, an area regard both to classifying given situa- determine the effects in their domes- in which the western legal tradition tions and to determining what law

Partial responses in law, and the limits of the legal approach 35 should apply and how, if a “public stances.4 Where the persons wishing who is neither a national of that state policy exception” is made, the foreign to marry are of different nationalities, nor habitually resides there” (Article law is to be applied. Moreover, courts the law that will govern their relation- 6). may employ different approaches to ship must be determined, and the In Portugal, Article 50 of the Civil a given question to achieve what are national laws may apply cumula- Code stipulates that the form of mar- sometimes similar results. Inevitably tively as in Germany or distribu- riage is governed by the national law all this has repercussions on the rules tively, in that each future spouse is of the state in which the marriage is of private international law and cre- subject to his or her own national law, celebrated, with exceptions provided ates legal uncertainty both for the as in France. With regard to formal for in Article 51,5 under which a mar- public and for legal practitioners. requirements, most countries opt for riage may be celebrated in the pres- In some foreign countries, refer- the law of the state where the mar- ence of a diplomatic or consular rep- ence is made to customary or reli- riage is contracted. This is true of Bel- resentative or a Catholic priest. gious law systems that are inconsist- gium, Croatia, France, Luxembourg, The fact is that the “marketplace” ent with the key principles informing Malta and Switzerland. In Germany, of inter-family exchange has spawned the international legal instruments. for family marriage ceremonies, the numerous rules which may be recog- In seeking solutions to conflicts of exception provided for in Article 13, nised in the national law of one coun- law or custom, courts may use the sub-section 3-1 of the Introductory try but unknown in that of another. imperative of public policy to justify Act to the German Civil Code In deciding what choice-of-law rules rejecting a law or custom that is at (EGBGB) must be observed. Finland, to apply to a given question, lawyers odds with the criteria for protecting Portugal and Egypt signed the Con- first need to classify or categorise the human rights and fundamental vention of 14 March 1978 on Celebra- issue at stake.6 Some foreign institu- freedoms, or to affirm rules based on tion and Recognition of the Validity of tions fit easily into the categories of other criteria, such as the interests of Marriages, the first chapter of which the particular national law system, a child. sets out the requirements for cele- while others pose especial difficul- Forced marriage raises all sorts of brating a marriage in a contracting ties. For example, marriage by proxy questions about the choice-of-law state, namely: in Portugal is prohibited in Croatia; rules applicable to contracting of “The formal requirements for mar- the matrimonial “guardian” (wali), marriages. We have to draw a distinc- riages shall be governed by the state who under Algerian law represents tion here between formal require- of celebration” (Article 2); “a marriage the woman and consents on her ments and substantive requirements. shall be celebrated where the future behalf, is an institution unrecognised In settling choice-of-law questions spouses meet the substantive require- in French, German or Italian law; and concerning the substantive require- ments of the internal law of the state there are other such examples. The ments for marriage, some countries, of celebration and one of them has question this raises is whether mar- including Belgium, Germany, France, the nationality of that state or habitu- riage by proxy is a substantive or a the Netherlands, Luxembourg, Italy ally resides there, or where each of formal requirement, and likewise and Greece, give preference to the the future spouses meets the substan- with regard to the wali. All this is not law of the country of nationality. tive requirements of the internal law unrelated to the problem of forced Other countries – the UK, Malta and designated by the choice-of-law rules marriage and specifically to the prin- the Common Law and Scandinavian of the state of celebration” (Article 3); ciple, enshrined in international law, countries – apply the law of the coun- “the application of a foreign law that consent must be given freely and try of residence. In Spain, future declared applicable by this Chapter in person. spouses may choose between their may be refused only if such applica- In other words, once the problem own national law and the law of their tion is manifestly incompatible with of classification has been resolved country of residence. In Switzerland, the public policy […] of the state of (i.e. when the court has succeeded in choice of law depends on the circum- celebration” (Article 5); “a contracting identifying a given institution) it is state may reserve the right, by way of possible that the choice-of-law rules, 3. It should be noted in passing that, since 1 derogation from Article 3, sub-para- March 2001, the member states of the Euro- determining what legal system to graph 1, not to apply its internal law pean Union, with the exception of Den- apply to the situation, will result in mark, have been subject to Council to the substantive requirements for applying foreign legislation permit- Regulation (EC) No.1347/2000 of 29 May marriage in respect of a future spouse 2000, sometimes referred to as “Brussels II”. ting marriage under the age of 18, or The Regulation supplants national provi- marriage by proxy – thus raising a sions, under the principle that international 4. Under Article 44 (1) of the Federal Private law takes precedence over domestic law. It International Law Act (LDIP) of 18 Decem- question about the importance deals with conflicts of law where the issue is ber 1987 (version as at 1 June 2004), “the attached to free will at the moment of one of jurisdiction, but not with which substantive requirements for the celebra- consent to marriage. In such a situa- country’s law is applicable to the substan- tion of marriage in Switzerland shall be tive issues of the case, which continue to be determined by Swiss law”. If the require- covered by each country’s domestic legisla- ments under Swiss law are not met, a mar- 5. For more details see Appendix 2: Working tion. It contains a restrictive list of alterna- riage between foreigners may nonetheless documents – Portugal. tive and ranked criteria for use in conflict- be celebrated provided it meets the require- 6. On this question see E. Rude-Antoine “Le of-law situations. See in France, Decree No. ments of the law of the country of national- droit international privé et les migrations 2005-460 of 13 May 2005 on competences of ity of one of the fiancés (Article 44 (2)). The maghrébines” in E. Rude-Antoine (ed.), civil courts, on civil procedure and on judi- form of marriage celebration in Switzerland L’immigration face aux lois de la Répu- cial organisation. is governed by Swiss law (Article 44 (3)). blique, Paris, Karthala, 1992, pp. 111-129.

36 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives tion, two foreigners living in a coun- valid, as the two future spouses have was forced into concluding the mar- try where the substantive require- marital capacity under the Romanian riage. ments for marriage have been ruled law. In that case, the marriage is rec- to be those of the spouses’ national ognised, while it violates German The choice-of-law rule that gives law, and who are being married public policy (Article 6 EGBGB). Vio- precedence to spouses’ national legal before a competent authority, must lation of German public policy is not systems is therefore unsatisfactory. prove compliance with the require- admitted, as German laws authorise As noted above, there are other coun- ments under their national law in marriage under 16 years on certain tries where the choice-of-law rule respect of age, capacity and consent. conditions. gives precedence to national law, or If they are both of the same national- to the law of the country of residence, Referring a matter to public policy ity, the law applicable will be their and lawyers have suggested that this does not alter the fact that Romanian shared national law. If they are of dif- is a better solution in terms of the law provides for discriminatory treat- ferent nationalities, the most principle of equality. In many Euro- ment as between boy and girl. The common solution is distributive pean countries, families from immi- same form of discrimination exists in application of the relevant systems of grant backgrounds, and particularly family law in Luxembourg. In prac- law. women whose national family-law tice, gender-based discrimination The next question is on what con- systems discriminate against them, arising from the application of for- prefer to see local law applied, con- dition foreign law – permitting, for eign law is preventable by means of example, people to marry younger sidering that it affords them greater the “public policy exception”: regis- 7 than the marriageable age of the protection. In the eyes of some trars can refuse to apply discrimina- jurists, however, this option amounts country where the marriage is con- tory foreign rules. tracted – may be recognised in that to the compulsory integration of for- country. For instance, could a mar- At the same time, the public policy eign communities. It is justifiable in riage contracted in Sweden between a exception should not be applied sys- the case of families who have lived 16-year-old Portuguese national and a tematically. In other words, it should for many years in a foreign country, 18-year-old Swedish girl living in depend on the circumstances of each particularly if there is a connection of Sweden be valid, even with parental case, even in situations clearly incon- proximity between the disputed situ- authorisation, given that the mar- sistent with basic principles of the ation and the law of the country of riageable age in Sweden is 18 for girls state where the marriage is to take residence. But that still leaves the and boys. How can the Portuguese place. Recourse to the public policy problem of recognition abroad of marital capacity rule be consistent exception, on the basis of a hierarchy legal measures inconsistent with the with the Swedish national legal posi- of interests, is not always a com- law of the country of nationality. tion? pletely effective solution inasmuch Other states have opted to let the per- sons concerned choose the law that Under private international law as it can produce equivocal situations will govern their family relationship. foreign law is commonly set aside if – valid under the law of one state but This is a solution that recognises legal applying it would produce situations not under that of another. pluralism and shows greater willing- inconsistent with basic principles of In a memorandum of 5th July ness to take distinctive features of for- public policy. Public policy thus takes 2005, the Ministry of Children and eign legal systems into account. A precedence over foreign law. In the Family Affairs suggest that a marriage further solution is to leave the choice example above, the Portuguese rule contracted abroad, were one or both of applicable law to the courts. In allowing a boy to marry at 16 years of spouses is below 18 years old or if the some cases, courts may use different age would be inconsistent with Swed- marriage is contracted by proxy, shall choice-of-law criteria in recognising a ish public policy, and the registrar not be valid in Norway. This proposal legal contract as valid. To take the ought not to celebrate the marriage, is suggested to be valid for all Norwe- example of a marriage contracted in as it could be annulled by a Swedish gian citizens and persons who are res- London between two British nation- court. ident in Norway. The intention is to als and celebrated by a British minis- Similarly, the marriage of a 16- prevent child marriage and forced ter of religion (i.e. without the year-old Romanian girl to an 18-year- marriage. To prevent serious negative involvement of a civil authority of the old Romanian husband – which impact due to lack of acknowledge- state), some non-UK courts will rec- would be consistent with Romanian ment of a marriage the Ministry has ognise such a marriage on the rules on marital capacity – would not proposed a possibility for approval of grounds that it is valid under the law be valid in Sweden where neither the marriage as valid if there are of the country where it took place girls nor boys may marry under the strong reasons. Either spouse may and others because it is valid under age of 18. seek an annulment if he or she was the national law of the spouses or On the contrary, in Germany for forced into concluding the marriage. that of their place of residence. example, according to conditions Some people may prefer a divorce. under paragraph 1303, sub-section 2 For that reason, the Ministry in the 7. E. Rude-Antoine, “La coexistence des sys- of the Federal Civil Code (Bürgerliches same memorandum suggest that a tèmes juridiques différents en France: Gesetzbuch – BGB), the marriage of a spouse or both spouses may demand l’exemple du droit familial”, in P. Kahn (ed.), L’étranger et le droit de la famille - Pluralité 16-year-old Romanian girl to an 18- a divorce directly without been sepa- ethnique, pluralisme juridique, Paris, La year-old Romanian husband would be rated for at least one year if he or she documentation française, 2001, pp.147-181.

Partial responses in law, and the limits of the legal approach 37 The question here is what choice- for families who maintain close ties emphasis on compliance with under- of-law solution would be most appro- with their country of origin, the cur- takings on human rights and funda- priate in terms of prevention, i.e. pro- rent trend among legal practitioners mental freedoms – where a European tecting every individual against is to seek application of the law of the country’s family law system has pro- unwanted marriage. While giving country of residence, which would vision for doing so. people the right to choose might seem to afford greater protection. It seem the best solution, particularly would also seem to place greater

Forced marriage and civil law n addressing the issue of forced govina, the public prosecution serv- In Norway, the Ministry of Family marriage from the standpoint of civil ice in France, the Grand Duke in and Children Affairs suggest, in a law, we need to consider the applica- Luxembourg, and civil-court judges memorandum of 5 July 2005, that ble rules in family law, the substan- in Ireland may thus authorise mar- The County Governor shall not be tive and formal requirements and riage from the age of 16 years; it can able to give dispensation for marriage their effects in terms of marital be permitted from 15 years of age by if the couples are below 16 year-old. capacity, consent to marriage, the cel- the mayor’s office in Bucharest or Where an intending spouse is ebration of marriage and the annul- county councils in Romania; and in under age, permission from a parent ment of marriage. Finland the Justice Ministry may or legal representative may also be Most national legal systems make allow persons under 18 to marry if required. This is the case with minors 18 years the minimum marriage age. there are special reasons for it. Before aged 16 or above in Belgium, Croatia, This is the case in Belgium, Bosnia an exception can be made, the person France, Latvia, Luxembourg, Malta, and Herzegovina, Croatia, Cyprus, legally responsible for the under-age Portugal, Switzerland, Turkey and the the Czech Republic, Estonia, Finland, spouse must be consulted if his or her United Kingdom, and with minors Germany, Hungary, Italy, Latvia, the view could be material to the deci- aged 15 or above in Estonia9. In Bel- Netherlands, Norway, Poland, the sion. In Germany, family courts may gium parental consent must be regis- Slovak Republic, Sweden, Switzerland exceptionally authorise a marriage tered by a youth court. In Norway, and the United Kingdom. In Malta, where one of the parties is of mar- minors under 18 years require a par- people may marry from the age of 16 riageable age and the other is in his or ent’s consent and the County Gover- although paradoxically the age of con- her sixteenth year. In Hungary, nor’s authorisation in order to marry. sent to sexual intercourse is 18. In young people may marry from the The County Governor may only give Turkey, legal age for marriage is 17 age of 16 subject to special permis- permission where there are special years for both girls and boys. In Por- sion from a court and in exceptional reasons for contracting a marriage. tugal, where the age of majority is 16 circumstances only. In Poland, if The main rule is that approval is not years, that is also the minimum age there are serious grounds for doing given to a person under 17 year. for marriage. The fact of an intending so, a guardianship court may allow an If parents refuse consent or are spouse being aged under 16 is an under-age spouse to marry where, in incapable of giving it, a court may absolute impediment to marriage. the circumstances, the intended mar- authorise the marriage. In Belgium While 18 years is the legal age for riage would be in the interests of the there is a provision to this effect marriage in Ireland, an Act of 1995 families. Similarly in Turkey, a court where the court regards the parental provides that a court may authorise may decide on exceptional and refusal as unfounded. Courts assess the marriage of minors under 18 proven grounds to permit 16 year-old such situations case by case. They years on certain conditions. boys and girls to marry. In such cases may authorise the marriage of a In some countries there is still a the court is required, wherever possi- minor if his or her parents fail to difference between the marriageable ble, to consult the father, mother or appear or cannot indicate their view. ages for girls and boys. That is so in legal guardian. In Italy, a judge sitting In Croatia, permission may be France8, where the minimum age for in chambers may agree to a marriage granted if the court establishes that boys is 18 years and for girls 15 years, involving a spouse aged 17 – where the minor is sufficiently physically and in Luxembourg and Romania, that person has made an application mature to assume the rights and where the respective ages are 18 and to the court – on the basis of an duties resulting from marriage, and 16. assessment of his or her physical and after consultation with the minor At the same time, certain coun- intellectual maturity, and after con- making the application and his or her tries allow the authorities to make sultation with the public prosecution parents or guardians. In Estonia, a exceptions to the age requirement for service and the parents or guardians. court may authorise a marriage at the serious, special or exceptional rea- In Cyprus, minors can be allowed to request of the other parent, or the sons. Courts in Bosnia and Herze- marry from age 16 if there are person with parental authority, if the weighty reasons for it. In the Slovak marriage is in the minor’s interest. In 8. In the framework of the proposed act to Republic, too, if the minor has combat violence against women, the age of reached his or her 16th birthday, the 9. The new Family Act, currently under dis- marriage for women is increased to 18 cussion, will bring changes into the regula- years. This proposed act will be very soon courts may permit the marriage if tion of the exceptions in the legal age of submitted to the Senate. there are serious reasons for doing so. marriage.

38 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives Germany, if the minor’s legal repre- that they are marrying of their own tracted before a minister of religion. sentative refuses consent without free will. In Poland, consent must be In the latter case the spouses make good reason the minor may apply to manifest as “a concerted wish”. In two separate declarations, one for the the court for a ruling that will take Estonia, a marriage is contracted on civil union, the other for the religious the place of parental consent. In Swit- the mutual desire of the intending one. They agree to be bound simulta- zerland, a minor prevented from spouses. In other words, all these neously by ecclesiastical law and the marrying may ask the court to set legal systems reflect the principles family and guardianship law. Ireland aside the refusal of his or her repre- laid down in the body of international permits civil marriage in the office of sentative. In Norway, where persons law. the registrar of marriages or religious with parental authority refuse to con- There is also reference in national marriage in church, after compulsory sent to a marriage, the chief county law to the free and full consent of the notice to the registrar three months administrative officer may nonethe- two parties, expressed in person in before the marriage. In Norway, the less authorise it if the refusal is the presence of the authority empow- officials competent to celebrate mar- unfounded. Similarly, in the UK, if ered to celebrate the marriage and of riage are public notaries, clergies of consent is unreasonably refused or two witnesses. In Belgium, France, the state church or ministers of other cannot be obtained, a court ruling Germany and Switzerland the pres- denominations, officials of humanist will be sought. ence of the registrar is required; in or recognised non-religious organisa- It should be noted that many coun- Romania, consent must be expressed tions that receive public funding, per- tries do not maintain registers of “personally and publicly in the pres- sons authorised by the Ministry in births, deaths and marriages, which ence of the competent official”; in cases where it is necessary due to makes it impossible to check the age Denmark, “by presenting themselves long distances or other reasons. In of persons getting married or to together and in person before the rel- the latter case, the appointment is obtain birth certificates. evant authority and by declaring made for four years. Before any mar- Consent itself is mentioned in their intention to marry”; in Latvia riage celebrated in Norway, all cou- only a few pieces of law in the coun- the requirement is for the “presence ples must verify compliance with tries studied. With the exceptions of of the future spouses and two adult conditions for marriage with the Austria, Malta and the Netherlands, witnesses before the representative Registar. where the information received gave of the general registry”; Hungary In the UK various forms of mar- no indication of the relevant provi- requires “the presence of both parties riage ceremony are permissible. sions, all the other countries lay at the marriage registry“; in Luxem- A marriage may be celebrated down, in various forms of words, that bourg consent must be given “pub- according to the rite of the Church of consent of the future spouses is a pre- licly before the registrar”; in Estonia it England, in the presence of a requisite for validity of a marriage. must be expressed “in person at the member of the clergy and between 8 The Belgian, Spanish, French and same time”; the Slovak Republic am and 6 pm, following the cere- Luxembourg codes state that there is requires it to be made “publicly and mony set out in the official liturgy. At no marriage without consent. In solemnly in the presence of wit- least two witnesses are required. most cases, however, consent is not nesses”; in Sweden it must be given Three formalities precede the cere- clearly defined. At best, we find vari- “personally and at the same time, mony, namely publication of the ous stipulations. In Cyprus, for exam- before the registrar”; Portugal stipu- banns, receipt of a marriage licence ple, the “free and full consent of the lates that it must be “strictly per- and receipt of a registrar’s certificate. spouses” is required; in the Czech sonal”; and Finnish law requires that Marriages may also be celebrated Republic consent must be “free, full “the couple be present together at the according to non-conformist rites on and mutual” – we find a similar for- marriage ceremony”. condition that the building used mula in Latvia, Portugal, and Switzer- Marriage is thus celebrated before meets certain legal stipulations and land, where marriage depends on an authority. The formal require- that a certificate or licence has first “mutual consent”, and in the United ments in this respect differ from been duly obtained. A registrar need Kingdom, where the law requires country to country. In some systems, not be present at the ceremony. “free consent”; German law states civil marriage is compulsory. Others, Marriages celebrated according to that consent must be “free and volun- such as Bosnia and Herzegovina, the rites of certain religious sects, and tary”; in Italy it must be “free, France and Germany, permit reli- Jewish marriage, are also permitted. informed, real and unfeigned”, a for- gious marriage if it is preceded by In such cases a registrar’s certificate mula echoing that of Romania, which civil marriage. A third group of coun- must be presented before the cere- requires “informed and free” consent; tries, including Croatia, Italy, Portu- mony. Quaker marriage may be cele- and in Bosnia and Herzegovina gal and the Slovak Republic, allow brated in any meeting place, even if it emphasis is placed on “the free will of future spouses to choose between lies outside the territory of the regis- the parties”. Norwegian law not only religious and civil marriage. In try responsible, and the same applies requires “free consent” but also pro- Poland the marriage may take place to Jewish marriage. vides a means of checking that this before the senior registrar, with the Civil marriage is another option – condition has been met inasmuch as spouses manifesting their concerted in the registrar’s office in the pres- the administration can interview the will to marry in the presence of two ence of two witnesses. The spouses intending spouses in order to verify adult witnesses, or it may be con- will be questioned about their inten-

Partial responses in law, and the limits of the legal approach 39 tion to contract the marriage, and a of threats; in Poland, “criminal ground for absolute nullity of the certificate is required. Purely civil threats”; in Latvia, duress; in Croatia, apparent marriage. For there to be marriage is common nowadays. It is a “unjust threat”; in Sweden, “pressure simulation, the parties must jointly fully effective procedure in itself and applied by means of threat or vio- have feigned exchange of consent no religious ceremony is necessary. lence”; in the Czech Republic, “physi- and have in no way intended it to While few countries permit mar- cal constraint”; in Portugal, “physical have effect. Similarly, Bosnia and riage by proxy, Croatia having out- and moral constraint”; in Germany, Herzegovina, Latvia and Romania lawed it, others continue to allow it. “constraint and threats”; in Spain, have provisions for annulment where In Portugal, for example, it is legal. “constraint and threats of serious dan- “the marriage was contracted with One of the future spouses may dele- ger”; in Cyprus, fear; and in Switzer- the fictitious intention of creating a gate authority to an appointed repre- land, “serious and imminent threat to family”. sentative: in order to do this it is suffi- [one’s] own life, health or honour or It would be extremely valuable to cient to go to a notary and express those of a relative”. The legislation on study the case law of each of the one’s consent. The notary then draws grounds for annulment in Luxem- countries reviewed to see what crite- up a proxy document. This must con- bourg, Norway and the UK refers only ria and indicators the courts apply in tain specific authority to contract the to “vitiated consent”. deciding whether or not marriages marriage and state how it will take In Belgium, deferential fear of should be annulled. For example, the place. The proxy becomes invalid if it one’s father and mother is not in concept of “cohabitation” after mar- is revoked or if the mandating indi- itself regarded as a sufficient ground riage, which the courts use in certain vidual or the representative dies or for annulment. Maltese courts, on the countries including France, requires becomes incapacitated. Marriage by other hand, have included that con- close scrutiny. proxy is also practised in the Czech cept in their definition of violence. This is clear from a judgment by Republic, in Morocco and in Algeria. Fear of a parent or guardian may viti- the regional court of Dax (France), Ireland does not permit marriage by ate consent and render the marriage delivered on 6 November 2002, and proxy; the two spouses must be void. the subsequent judgment of the Pau present, together with two witnesses. Error with regard to a person’s court of appeal (2nd chamber, section identity or essential qualities is a fur- As noted above, consent to marry 2) of 26 April 2004.10 The courts ther ground for annulment on the depends simultaneously on psycho- refused a young Moroccan woman’s basis of vitiated consent. It is recog- logical intent – inner commitment – application for annulment of her nised in Malta and Poland; in Spain, and on a declaration of intent at the marriage and found that a legal status where the law refers to “marriage time the marriage is contracted. Con- acquired non-fraudulently in another contracted on the basis of error sent given where the person con- country should be given effect in regarding a person’s identity or quali- cerned lacks marital capacity is thus France in accordance with the legal ties and which had a crucial bearing void (see the laws of Belgium, Hun- system competent by virtue of pri- on the consent”; in Switzerland (“if [a gary, the Czech Republic, Italy, Lux- vate international law. The facts of person] contracting a marriage has embourg, Norway, Romania, the the case were that a marriage had been deliberately misled with regard Slovak Republic and the UK), and in taken place in Morocco between a to the spouse’s essential personal cases where an individual’s mental French national and a Moroccan girl qualities“); in France (“in the case of condition is impaired consent is under the age of 15.11 The lower court error with regard to a person’s iden- simply non-existent. This is made pointed out that both French law and tity or essential qualities”); and in explicit in the legislation of Belgium, Moroccan law permitted exceptions Portugal (“when one of the spouses Germany, Croatia, France, the Czech to the rules on minimum age. A has mistaken the other’s identity”). Republic, the Slovak Republic, Moroccan court had in fact made Assessing whether such an error has Poland, Portugal, Romania, Latvia, such an exception in the interests of a taken place, and thus whether mari- Norway, Switzerland, Turkey and minor, in accordance with Moroccan tal intent was lacking, is at the sole Italy. In the majority of countries law. The young woman was applying discretion of the court. In Turkey, studied, however, the key factor in for annulment on the grounds of either spouse may apply for annul- determining whether or not a mar- absence of consent (under Articles ment of the marriage where he or she riage should be annulled is that of 146 and 180 of the Civil Code). The has “made a declaration of erroneous true, inner, unvitiated assent. Some- judges found, however, that consent consent to marriage on the ground one’s not offering any obvious resist- had in fact been received and was either that he or she did not wish to ance does not necessarily signify that confirmed by two years’ cohabitation. they consent. Factors that can over- marry or that he or she did not wish come inclination to resist but invali- to marry the person who became his 10. Juris-Data, No. 2004-242710. date the “consent” include the follow- or her spouse (Article 149), or “he or 11. Under the traditional Moroccan Mudawana, ing: in Belgium, France, Malta, she was mistaken about his or her or Family Code, marital capacity is acquired at 18 years of age for men and 15 for Romania and Sweden, violence; in spouse” (Article 149.1). women, but Article 19 of Act No. 03-70 Italy, “violence and fear of causing Simulation, or sham marriage, also amending the Family Code provides: disappointment through failure to constitutes grounds for annulment. “Capacity to marry is acquired by men and women in full possession of their mental contract [the marriage]”; in Bosnia In France and Belgium simulation faculties on reaching the age of 18 Grego- and Herzegovina and in Poland, use has been enshrined in law as a rian years.”

40 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives Under Article 185 of the Civil Code, age would change nothing: “In those the minimum legal age for marriage. also, an application for annulment on societies, a child is not regarded as Firstly, this is in line with the range the basis of Article 144 of the code having reached adulthood until he or of international undertakings that was inadmissible if more than six she has married.” states have signed up to. It would also months had elapsed since the spouse That would seem to be the situa- remove the gender discrimination applying had reached marriageable tion in India, where early marriage currently found in legal systems that age. continues to be practised despite leg- maintain different marriageable ages A further possibility under civil islation enacted to prevent it. Special for boys and girls. Another point to law in some countries (including Acts have been passed laying down emerge is the urgent need for all France) is compensation for non- conditions governing marriage, nota- countries to keep registers of births, material injury, from a victim indem- bly with regard to marital capacity. deaths and marriages so that spouses’ nification fund. An award of that kind Under an Act of 1978 the minimum marriage dates can be checked as was made by the Evreux regional age of marriage is 18 for women and well as their dates of birth. It is also court on 7 May 2002 and upheld by 21 for men. This Act, reforming the necessary to close off the option of st the Rouen court of appeal (1 cham- Child Marriage Restraint Act 1929, marriage by proxy, which is currently 12 15 ber, section 1) on 20 July 2004 in under which the minimum ages were still available in many countries. response to a claim by a victim. The 15 and 18 respectively, has not had Finally, governments could usefully girl who brought the case had been the expected effect on practice within be steered towards the Norwegian rejected by her family because she families, which – on the evidence of solution, enshrined in Act No. 47 of 4 had had a relationship with a non- the quantitative data discussed ear- July 1991, under which either spouse Muslim and had refused to marry a lier – continue to arrange unions may apply to the courts to have a Turkish national. Her family consid- involving very young partners, and marriage invalidated if he or she was ered that she had shamed the com- indeed to compel them to marry. It is forced into concluding it. munity and had behaved unworthily. a fact that many societies deny the It should be borne in mind, how- She had lived in fear at the time, sub- existence of adolescence: a girl ever, that the ineffectiveness of the sequently she had been under threat becomes a women at puberty, with- law lies not in its content but in its of further violence, and there had out any transitional phase. On that implementation. Victims fail to been a murder attempt. The court basis, as the UNICEF report points report the abuse that they suffer found that all of this constituted non- 13 out, there is no impediment to mar- either because they are ignorant of material harm for which compensa- riage at a very young age. According the law or because they believe that tion was required. to the report, this loss of adolescence family problems should be solved The concept of marital capacity is a core factor in trauma experienced within the family. It is also important thus raises the question of the law’s by the victims of early marriage (and, to emphasise that, under most coun- impact with regard to early marriage by extension, of forced marriage, tries’ legal systems, applications for or child marriage. To tackle the prob- since youth implies that there cannot annulment on the grounds of failure lem of child marriage, some coun- be consent). In practice, according to to observe the rules on marital capac- tries do, in fact, plan to raise the min- an official report on forced marriage ity, absence of consent or vitiated imum marriage age. Others take the 14 for the British Home Office, most consent can be made only by the vic- view that to do so would have no brides in India move in with their in- tim, and that there is a very short lim- impact on child marriage. laws, where they have a central role itation period. These are some of the That is the Estonian view. While to play. Once a young woman is eyebrows may be raised at Estonian installed in such situation she will 15. The new Moroccan Family Code provisions law permitting marriage between find it very hard to take the steps under Act No. 03-70 have not outlawed mar- minors aged 15-18, and there is a required to seek annulment of her riage by proxy. Under Article 17, “Marriage shall be concluded in the presence of the strong argument for bringing Esto- marriage. Moreover, embarking on parties. A proxy may, however, be nian law into line with other Council such a procedure would discredit her appointed for the purpose, subject to of Europe countries, the national own family, and she could not rely on authorisation by a court and to the existence of particular circumstances preventing the position is that that is irrelevant to their support. In many of the coun- party mandating the proxy from concluding freedom to choose a spouse and the tries where forced marriage contin- the marriage in person. The mandate must requirement that marriage be ues to be practised, legal provisions be an authenticated document or private agreement, duly signed by the mandating entered into freely and with full con- on the subject have no more than party, who must be of adult years, with full sent. The Estonian authorities point symbolic value. civil capacity and, where he or she is a mat- out that authorisation by both parents rimonial representative, must meet the Nonetheless, it is clearly appropri- requirements for performing that function. or the guardian of the minor is a pre- ate to encourage all states to amend The mandating party must confirm by sig- requisite for marriage at those ages. their legislation by making 18 years nature in the mandate the name of the Similarly, with regard to the situa- other party to the marriage, the information identifying that party and any other infor- tion in Turkey, Saye Petek Galom, 13. UNICEF, “Early marriage”, op. cit. mation considered useful for inclusion. The Chair of the association “Elele”, 14. See http://www.homeoffice.gov.uk/docs/ mandate must mention the amount of the argues that raising the marriageable forced.html: “The report of the working dowry payable in advance and at term. A group on forced marriage”, compiled at the magistrate must certify the mandate, having instigation of the Home Office Minister for confirmed that it meets the stipulated con- 12. Juris-Data, No. 2004-248626. Community Relations, pp. 7 and 15. ditions.”

Partial responses in law, and the limits of the legal approach 41 reasons why legal rules have been about the effectiveness of the penal- proceedings a possible solution to the ineffective in combating forced mar- ties for infringing the rules. In addi- problem? That is the question riage. Questions also need to be asked tion to civil remedies, are criminal addressed in the following section.

Forced marriage and criminal law

Few countries have made forced Law No. 37 amending the Criminal tence of three months to three years. marriage a specific criminal offence. Code, which entered into force on 19 Paragraph 1 of Article 237 provides In Norway: “Anyone who forces February 2005, expressly cites forced that anyone who, in total disregard of another person to conclude a mar- marriage as an example of a particu- his or her family obligations under riage through recourse to violence, larly serious case of duress, carrying the law, leaves a family member inca- deprivation of liberty, undue pres- a prison sentence of at least six pable of taking care of himself or her- sure or other unlawful behaviour, or months and up to five years. Traffick- self in a difficult situation is liable to a through the threat of such behaviour, ing in human beings for the purpose prison sentence of three months to shall be guilty of the offence of forced of sexual exploitation gives rise to a three years. If the family member marriage. The penalty shall be harsher sentence (paragraph 232 of dies or is seriously harmed as a result imprisonment for a period of up to six the StGB). of their action as defined under para- years. Accomplices shall be liable to In most countries forced marriage graph 1, the prison sentence incurred the same penalty” (Article 222 (2) of can be punished by means of the pen- is between one and eight years (para- the Criminal Code). alties for the various forms of crimi- graph 2). On determining the sen- This criminal-law provision forms nal behaviour it can involve. This is tence, the court may in addition part of a Norwegian Government pro- the situation in Austria, Belgium, order the offender to fulfil his or her gramme to combat forced marriage. Bosnia and Herzegovina, Croatia, obligations towards a minor (para- The aims are to prevent forced mar- Cyprus, the Czech Republic, Finland, graph 3). riage of minors and to help and sup- France, Hungary, Italy, Luxembourg, In Croatia, violence and rape are port people exposed to unions of this Malta, the Netherlands, Poland, the crimes under ordinary law but the type. The Norwegian legislation Slovak Republic, Romania, Spain, main provisions under which forced includes in its definition of forced Switzerland, Turkey and the United marriage can be penalised are found marriage all forms of unlawful behav- Kingdom. Categorisation of the rele- in Chapter 14 of the criminal code, iour designed to compel a person to vant offences differs widely from one dealing with “criminal acts directed conclude a marriage. It is thus the country to another but they include against sexual freedom and sexual special intent – the particular pur- rape, attempted rape, physical and morality”. Rape was recently rede- pose – that defines the offence and psychological violence, sexual vio- fined in Croatian law to include any distinguishes it from others. The lence, bodily harm, threatening with sexual act or the equivalent commit- wording is broad inasmuch as it a weapon or dangerous object, ill- ted by force, through the abuse of encompasses violent acts, depriva- treatment, trespass to the person, authority or under coercion. This tion of liberty, threats and pressures – indecent assault, false imprisonment, implies that rape may be committed all punishable under Norwegian law. infringement of freedom and integ- within marriage. The criminal-code Making forced marriage an offence in rity, psychological duress, sexual chapter on criminal acts directed its own right means that it can be duress, kidnapping and abduction, against sexual freedom and sexual punished more severely and the pen- offences against the person, infringe- morality thus includes the offence of alties applicable may be cumulative, ment of sexual integrity, honour rape as described in Article 188: “Any- which would not be an option in pro- crime, etc. one who constrains another person ceedings taken on the basis of “ordi- In Austria there is a criminal by force or by threat to that person’s nary” charges. offence of rape of a partner, and pro- life, or who falsely imprisons another It should be noted that, under ceedings can be taken on that basis in person, for the purpose of engaging some systems of criminal law, certain cases of forced marriage. in sexual relations or activity equiva- forms of marriage – notably mar- In Bosnia and Herzegovina Article lent to the sex act shall be liable to riages of convenience – constitute an 221 of the Criminal Code punishes imprisonment for between one and offence: in Malta, for example, mar- rape within marriage, defined as ten years. Anyone who commits a riage of convenience is a crime pun- involving force or the threat of direct criminal offence of the type ishable by imprisonment. Further- assault. No mention is made of situa- described in the first paragraph of more, although the term “forced tions where psychological duress is this article with particular cruelty or marriage” is not explicitly mentioned, exercised. Under paragraph 1 of Arti- humiliation, or is one of a number of threats, abduction and having sexual cle 236 of the same code, a natural individuals engaging at the same relations with a person without his or parent, an adoptive parent, a guard- time in more than one sex act, or the her consent all constitute offences. ian or another person who abuses a equivalent, against the same person Similarly, in Germany, the amend- minor or acts in excess of his or her shall be liable to the penalty of ment introduced in paragraph 240, rights and fails to fulfil his or her duty imprisonment for a period of at least sub-paragraph 4-2 No. 1 of the Crimi- of care vis-à-vis a minor commits three years. If the commission of a nal Code (Strafgesetzbuch, StGB) by neglect and is liable to a prison sen- criminal offence of the type

42 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives described in the first paragraph of offence (“crime”) and the law rules included rape or sexual assault com- this article causes the death of the out any defence of consent, whatever mitted within marriage as criminal person raped, or severe damage to his the age of the accused, if the victim is offences. Under Section XII (“Crimes or her health, the perpetrator shall be under 15. The victim’s age is then an against persons”), Title II (“Crimes liable to the penalty of imprisonment aggravating factor and the perpetra- against personal freedom and human for a period of at least three years. If a tor is liable to up to 20 years’ impris- dignity”), infringement of a person’s criminal offence of the types onment. “The presumption that liberty is also an offence (see Section described in the second or third para- spouses consent to sex acts in the 175). graphs of this article is committed context of marital intimacy applies New provisions in the Italian crim- against a minor, the perpetrator shall only in the absence of proof to the inal code have replaced the concept be liable to the penalty of imprison- contrary” (judgment of the Court of of rape, as such, by that of “sexual vio- ment for a period of at least five Cassation, Criminal Chamber, of 11 lence”, a generic term that covers all years. If the commission of a criminal June 1992). forms of sexual assault. It punishes offence of the type described in the In addition, France’s Law No. 98- false imprisonment and sexual vio- second paragraph of this article 468 of 17 June 1998 extends the rele- lence, lays down aggravating circum- results in the consequences vant limitation period in the case of stances, and makes sex acts with a described in the third paragraph of under-age victims to 10 years after minor a criminal offence. There is no the article, the perpetrator shall be the victim reaches majority, whoever specific provision on rape of a minor, liable to the penalty of imprisonment the aggressor. The law applies to or indeed on other specific sex acts for a period of at least five years.” offences on which action was not against a minor. The victim’s age is an In Cyprus, Article 5 of Act No. 119 barred at 20 June 1998, the date it aggravating circumstance rather than (1)2000, on the prevention of vio- came into force. giving rise to a separate, specific lence in the family and the protection Marriage of convenience is an offence. Similarly, the existence of a of victims, defines rape or attempted offence under France’s Law N° 2003- husband-wife relationship is not a rape of spouses as a crime (see crimi- 1119 of 26 November 2003. Under the factor constituting a particular nal code, Articles 144-146). Article new Section 21 quater (created by the offence. There is no separate offence 154 of the criminal code sets out the 2003 Law) of the Order of 2 Novem- of rape within marriage. penalties for forms of fraud in rela- ber 1945 on foreigners’ entry into and Under Article 242 of the Nether- tion to marriage (see also Articles 178 residence in France (currently, Arti- lands criminal code, prosecutions are and 180). cles 621-1 to 621-3 of the Code of for- possible in cases of forced marriage In the Czech Republic marital rape eigners’ entry into and residence in on the basis of criminal offences such is not a specific offence. The absence France and asylum right), chief as rape, indecent assault, false impris- of relevant legal provisions on vio- county administrative officers (“pre- onment, duress or threats and intimi- lence means that there is total impu- fects”) can have the public prosecu- dation. The first step is for the victim nity for forced marriage. tion service investigate if it is sus- or a third party to make a complaint. In Finland criminal proceedings pected that such a marriage has been On 1 December 1991 a new rule came may be taken in cases of forced mar- contracted. into force in relation to sex crimes riage on the basis of those sections of Under Hungarian law it is a crime against minors aged 12-16. Proceed- the criminal code concerned with to force someone to marry. Offences ings in such cases could be initiated sexual offences and, more specifi- including threatening behaviour have only if a complaint had been made by cally, rape, duress in sexual relations, been prosecuted under Article 174 on the victim or the victim’s parents. duress in the sex act and sexual constraint (“A person who by means This provision having proved difficult abuse. Penalties depend on the level of violence constrains another person to apply, the law was amended on 10 of violence or threat involved, and to do, refrain from doing or endure September 2002: the public prosecu- also on whether the victim is a minor something, and thus occasions signif- tion service is now required to inter- or in a situation of particular depend- icant harm, shall be guilty of a crime view the victim in order to make sure ence on the perpetrator. – unless another crime is involved – that the offence was not committed Under Article 222-23 of the French and shall be punished by a term of with his or her consent. If there was criminal code, “Any act of sexual pen- imprisonment of up to three years”). consent, the proceedings may be dis- etration, whatever its nature, com- There are a number of provisions in continued at the prosecution serv- mitted against another person by vio- the criminal code in relation to vio- ice’s discretion. lence, constraint, threat or surprise, lent offences committed against Article 184 of the Polish criminal is rape” and “Rape is punishable by 15 family members or children. They code has an offence of violence years’ criminal imprisonment.” The provide a basis for bringing criminal within the family: “Anyone who definition includes digital penetra- proceedings and for imposing various inflicts physical or psychological ill tion of the anus or vagina and acts of types of penalty available for sex treatment on a family member, a fellatio without consent. Forced mar- offences and/or abuse of women or person temporarily or permanently riage can be regarded as rape of a children. Since the criminal code was in his or her charge, a minor or a vul- spouse. Proceedings for complicity amended in 1997, Section 14 nerable person shall be liable to a may be taken against the parents of a (“Crimes against the family, young term of imprisonment of between six minor. Rape is defined as a grave people or sexual morality”) has months and five years. The penalty

Partial responses in law, and the limits of the legal approach 43 shall be increased to ten years if the marital, public-order and public- “gross violation of a woman’s integ- perpetrator has, by his or her actions, safety matters. Apart from Act 61, rity”. It is punishable by imprison- put the victim’s life at risk.” Rape is which deals specifically with violence ment for a period of between six punishable under Article 168 of the between spouses, Romanian criminal months and six years, which may criminal code, which provides: “Any- law makes no distinction between the imposed additionally to other penal- one who uses force, threat or other private and public spheres. The legis- ties, for example for assault. unlawful means to constrain another lation on trespass to the person is person to engage in or submit to an applicable only to cruelty within mar- In Turkey, under the new Crimi- immoral act shall be liable to a term riage (Articles 180 and 181). nal Code, adopted on 26 September of imprisonment of between one and Section VI of the Slovakian crimi- 2004 and entered into force on 1 June ten years.” Article 199 of the code nal code contains specific provisions 2005, sexual offences are dealt with makes it an offence to abuse a per- protecting children against various under the Section on “Crimes against son’s vulnerable position in order to forms of assault and violence, notably the person”. The concepts of rape and involve them in sexual relations (the under the heading “Criminal offences indecent assault under duress have provision covers offences besides against the family and children”. Fur- been replaced with the concepts of prostitution). The penalty here is ther protection is provided to some sexual assault and sexual exploitation imprisonment for up to three years. extent by the provisions in Section V of children. The offence of sexual In Portugal, forced marriage can (“Criminal offences constituting seri- assault and the circumstances of its be dealt with under the provision on ous violence in the context of civil commission have been well-defined. crimes against sexual freedom: “Any- coexistence”) and Section VIII Aggravated circumstances exist one who constrains another person to (“Criminal offences against freedom where the offence involves penetra- undergo or engage, with him or and human dignity”). Offences tion with an organ, an object, etc. In another person, in copulation or anal involving sexual violence are covered the event of a sexual offence with or oral coitus by means of violence or by Articles 242 and 243, while Article aggravating circumstances resulting serious threat or by rendering the 217 deals with endangering the moral in mental or physical harm to the vic- other person unconscious or unable development of children and adoles- tim, a more severe sentence applies. to resist shall be liable to imprison- cents. Where a victim who is in a coma fol- ment for a period of between three Since 1989, the Spanish criminal lowing commission of the offence and ten years” (Article 164(1) of the code17 has punished violence within dies, the penalty incurred is life criminal code). “Anyone who abuses marriage. Its provisions were rein- imprisonment. Under the new code the authority conferred by a relation- forced by the Framework Act of 9 rape between partners qualifies as a ship of hierarchical, economic or June 1999 on protection of victims of crime carrying severe penalties. This work-related dependence to con- ill-treatment. Thus, any person who change in the law is intended to strain another person, by means of an engages “habitually in acts of physical punish marital rape. Sexual exploita- order or form of threat not specified or psychological violence” against a tion of children is defined as an in the preceding article, to undergo or spouse is liable to a prison sentence “offence against sexual integrity”. An engage, with him or another person, of between six months and three aggravated sentence is incurred in copulation or anal or oral coitus years. This penalty is additional to where the offence is perpetrated by a shall be liable to imprisonment for a those imposed for any other offences, descendant, an ascendant, a blood period of up to three years” (Article such as assault, which the acts of vio- relation of the second or third degree, 164(2) of the criminal code). Where lence involved. The criminal code a step-father, an adoptive parent, a the victim is the perpetrator’s spouse, also lays down heavier penalties for guardian and so on. The conditions of Article 152 of the Portuguese crimi- striking a spouse without causing repentance that lead to suspension of nal code16 lays down a penalty of wounds. Heavier penalties apply too trial proceedings or of a sentence imprisonment for between one and where threats are made with the use have been well defined. There can be 10 years, depending on the gravity of of weapons or dangerous objects and no suspension, reduction or remis- the offence. there is a tie between the aggressor sion of sentence where a person was and the victim. kidnapped or held against their will In Romania neither rape nor 18 and forced into marriage with the sexual cruelty between spouses con- In Sweden, a reform adopted in 1998 created the new offence of “vio- accused or convicted person. Perpe- stitutes a criminal offence. Nonethe- trators of honour crimes incur the less, Romanian law does provide for lation of a woman’s integrity”, which is defined as the repeated commis- maximum penalty for the offence women who are victims of sexual cru- committed. Family members or close elty within marriage to take the sion of offences against life and lib- erty, or sexual offences, directed relatives who kill a woman who has offender to court and claim damages been the victim of a sexual assault on with interest. Penalties for cruelty against a woman with whom the per- the ground of protecting the family’s within marriage are governed in part petrator has, or has had, an intimate honour do not benefit from mitigat- by Act 61/1991 on contraventions in relationship. Where the offence is committed by a spouse it is classed as ing circumstances. Deliberately injur- ing a descendant or ascendant, a 16. See “La lutte contre les violences conju- gates”, a working document of the French 17. Ibid. spouse, a brother or a sister consti- Senate (No. LC 86, March 2001). 18. Ibid. tutes an aggravated offence.

44 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives In the United Kingdom, forced ficient ground for sentencing him to vant to forced marriages as it enables marriages are classed under “sexual just two years’ imprisonment. relatives of a victim of forced mar- offences”, the penalties for which are riage to sound the alert and have set out in the Sexual Offences Act In other words, few countries have criminal action taken. defined forced marriage as an offence 1956. There is, however, specific leg- In practice, in most countries, very in its own right. In most countries it islation on indecent assaults against few cases are reported – victims are is punishable via penalties for children, the Indecency with Chil- afraid to go to the police, or feel offences under ordinary law. The dren Act 1960. In November 2003, ashamed, or have little confidence in penalties for each offence have Parliament adopted a new Sexual the authorities. The point is made in regard to circumstances which may Offences Act. the information submitted from be more or less aggravating, depend- many countries that often, when vic- ing upon whether the victim was a The offence of rape depends in the tims do make a complaint, perpetra- minor, on whether the offence was UK on absence of the victim’s con- tors receive only the minimum pen- committed against a family member, sent. The new Act creates an offence alty, prison sentences being rare or on the nature of the link between of assault by penetration other than relatively short. with the penis, i.e. by any means aggressor and victim and on the seri- ousness of the act committed (i.e. if it It is worth noting that the Special including with objects. Perpetrators Court for Sierra Leone has agreed to of this offence may be male or involved violence, threat, unlawful imprisonment, use of objects, etc.). recognise a new offence of “forced female. The law irrefragably pre- All these provisions in criminal law marriage”, to be regarded as a crime sumes absence of consent on the part provide a basis upon which to punish against humanity. On the Interna- of children under 13. Other provi- forced marriage – that is, once the tional Day for the Elimination of Vio- sions on “sexual offences” set out marriage has been contracted. Rape lence against Women, 25 November penalties to be imposed on those who within marriage is not yet recognised 2004, at the United Nations, Secretary cause or incite a minor to engage in under all legal systems. Certain coun- General Kofi Annan welcomed this sexual activity with a third party or tries have introduced provisions that step, making the point that in many with themselves, even where the can be used to prosecute parents for cases sexual violence was com- attempt fails. These provisions offer a abetting the rape of a minor.19 The pounded by the threat of potentially possible basis on which to convict 20 next question to be asked concerns fatal HIV infection. parents. It should be noted that acts the bringing of criminal proceedings, In Germany, another amendment of violence between partners do not and the rules here differ widely from is currently discussed by the Bun- constitute a specific offence. They country to country: in some cases ini- desrat. The Länder Chamber has are often classed as intimidation or as tiation of proceedings depends on the passed draft legislation that should trespass to the person. Ordinary law victim making a complaint, in others now be presented to the Bundestag is applicable in such cases but the the public prosecution service may (Bundesrat Printed Matter 546/05). courts, which enjoy a large measure take action unprompted. In some According to this draft legislation, of discretion, can take into account countries the public prosecution serv- forced marriage, where the victim is any ties between aggressor and ice cannot take any action unless the coerced into marriage by force, the victim in determining the sentence. victim has made a complaint. The threat of appreciable harm, or the The fact that violence has taken place law may sometimes allow the prose- exploitation of a coercive situation in between partners may thus lead the cution service to initiate an investiga- connection with a stay in a foreign courts to impose heavier sentences. tion or even place a suspect in pre- country, is punished with imprison- Marriage is regarded as a circum- ventive detention to ensure that he or ment of up to 10 years. A new para- stance aggravating the offence. Vio- she does not abscond or material evi- graph 234b including this provision lence within marriage may also come dence go missing. There are systems shall be added to the criminal code. under the scope of 1997 legislation where the public prosecution service The civil code shall also be amended. providing protection against harass- has an automatic right to take action ment, which it defines in the follow- It is important to consider the if it considers it to be in the public ing terms: “a person whose course of determining characteristics of forced interest. In some countries it is not conduct causes another to fear on at marriage in order to be able to define necessary for a victim to make a com- a new offence of that name. A broad least two occasions that violence will plaint for criminal proceedings to be be used […] against him is guilty of an approach is needed, to take in the dif- instigated, and any member of the ferent degrees of seriousness (vio- offence”. Since the early 1990s the public can refer a matter to the jus- courts have handed down convictions lence, false imprisonment, threats, tice authorities (although, as a rule, pressures, the use of objects, etc.) and for rape between partners, but there proceedings are initiated by the have been very few such cases. Some differences of personal status (are the police). This is potentially very rele- victims minors or adults, did the judges take account of length of mar- offence take place between family riage in such cases and may reduce 19. See the Evreux (France) Regional Court members, was the connection the sentence accordingly. In October judgment of 7 May 2002 and the subsequent 1999, for example, the fact that a man judgment by the Rouen Appeal Court of 20 July 2004 on an application for compensa- 20. Source: ATTAC-Genre, “Le mariage forcé, who had raped his wife had been tion made by the victim of an offence, op. crime contre l’humanité”, 30 November married for 17 years was deemed suf- cit. 2004.

Partial responses in law, and the limits of the legal approach 45 between perpetrator and victim is that all victims can get redress legal angle, particularly as it is a prac- close or distant?). The penalties also through the justice system, and a tice rooted in custom and tradition. need graduating according to the cir- number of procedural measures need The problem is not simply to deter- cumstances of individual cases. We to be taken: persons other than the mine what agreement or law should have already made the point that victim ought to be able to initiate pro- apply: it is also about how well the forced marriage cannot be tackled ceedings; victims ought to get a hear- laws that are applied can be adapted successfully, or victims properly pro- ing; and they should be given psycho- to the specific circumstances of tected, by legal instruments alone. logical support as well as protection forced marriages. This is a complex We need to supplement our study by (from reprisals, for example). question but it is directly relevant to looking at the way legal proceedings In conclusion, it should be clear all the policies that governments are conducted in a range of countries. that the subject of forced marriage implement, and the programmes and Limitation periods need extending so cannot be approached solely from a measures they initiate.

46 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives Policies, programmes and initiatives to combat forced marriage

It is because forced marriages policy choices for preventing or coun- specific measures for implementa- create very real problems that gov- tering them. Not all countries, how- tion at local, regional and national ernments are impelled to make ever, have relevant action plans with levels.

Forced marriage and personal protection policies

If measures under civil and crimi- – “States Parties shall […] protect the – “The judicial or administrative nal law are inadequate, then we must child from all forms of physical or authorities of the Contracting State look to personal protection measures mental violence, injury or abuse […] of the habitual residence of the as a means of achieving more tangi- including sexual abuse” (Article 19). child have jurisdiction to take ble results in preventing forced mar- – “States Parties shall take all effec- measures directed to the protection of riage. There are two international tive and appropriate measures the child’s person or property” (Arti- 1 agreements that require the signa- with a view to abolishing traditional cle 5 -1). Also: tory states to do their utmost to pro- practices prejudicial to the health of – “In all cases of urgency, the tect children. children” (Article 24). authorities of any Contracting State in whose territory the child United Nations Convention on The Convention of 19 October or property belonging to the child 2 the Rights of the Child, of 1989, 1996 on Jurisdiction, Appli- is present have jurisdiction to take which has been signed and ratified cable Law, Recognition, Enforce- any necessary measures of protec- by many countries including Austria, ment and Co-operation in re- tion” (Article 11 -1). Belgium, Bosnia and Herzegovina, spect of Parental Responsibility On this basis a number of coun- Cyprus, Croatia, Denmark, Spain, and Measures for the Protection tries have introduced legal measures Estonia, Finland, Greece, Hungary, of Children,3 which entered into providing for the courts to settle Ireland, Italy, Latvia, Luxembourg, force on 1 January 2002, has been family conflicts or to intervene where Malta, Norway, the Netherlands, signed by a number of countries parents fail in their duties and to take Poland, Portugal, the Czech Republic, including Austria, Belgium, Cyprus, steps to protect anyone who fears or Romania, the United Kingdom, the Denmark, Finland, France, Germany, has undergone a forced marriage. Slovak Republic, Sweden, Switzerland Greece, Hungary, Ireland, Italy, Lux- and Turkey, as well as most of the embourg, the Netherlands, Poland, For example, relevant child welfare countries of origin of the immigrant Portugal, Spain, Sweden, Switzerland provisions have been introduced in communities within the European and the United Kingdom and ratified Austria, Belgium, France, Germany, Union (Algeria, Tunisia, Morocco, by the Czech Republic, Estonia, Hungary, Romania, Sweden and Côte d’Ivoire, Mali, Senegal, Maurita- Latvia, Lithuania, Monaco, Slovakia Switzerland. nia, Cameroon, Pakistan and Viet- and Slovenia. Its provisions are If the health, safety or morality of nam) and has been signed, although designed to protect children in inter- a minor is at risk, or if the child’s not ratified, by Somalia. The Conven- national situations, from birth to age upbringing is seriously compromised, tion provides: 18. It provides: a court may – on application by the child’s father and mother jointly, by 1. Regarding these agreements, the study cov- 3. Amending the Convention concerning the one of them, by the person or service ers the 46 Council of Europe member states. Powers of Authorities and the Law Applica- 2. India and Congo have adopted the Conven- ble in respect of the Protection of Minors (5 responsible for the child, or by a tion. October 1961). guardian, the minor in question or

Policies, programmes and initiatives to combat forced marriage 47 the public prosecution service – tional framework through which the may bar the aggressor from the area instruct that welfare measures be ANPDCA can coordinate measures in which the home is situated. taken. Exceptionally, the court may taken by ministries and other govern- The court may also order the act on its own initiative. It may ment agencies responsible for social aggressor not to visit the victim at instruct either a qualified person, a and family protection and education, home, to stay away from places that supervisory body or a non-residential with key input from local administra- the victim frequents and not to enter education or rehabilitation agency to tive bodies and civil society. The into contact with the victim. In the assist and advise the person or serv- ANPDCA, a dedicated central admin- UK, if a victim is in real danger or is ice responsible for the child, as well istrative body, monitors observance likely to discontinue proceedings as the child’s family, and to monitor of the law in the field of child protec- against the aggressor, the court may the child’s development. Such meas- tion. Child protection services have make this type of order without ures are known in the UK as care, the task of preparing annual, giving the aggressor prior warning. In supervision or protection orders. One medium-term and long-term strategic Austria, such orders are served by a step that may be taken in such situa- plans to restructure and develop the bailiff but the police may be asked to tions is to remove the child from the system of protection for children in intervene in the most serious cases. family home. This is done in difficulty in their specific administra- response to an application by the tive areas. They also supervise imple- In Italy there is a system of protection authorities if a child has suffered, or mentation of the strategies, and coor- orders to prevent abuse within the family. is at risk of, substantial harm. Emer- dinate, support and review the work If the conduct of a spouse or gency protection orders can be made of county administrative authorities cohabitee causes serious harm to the in respect of any child believed to be in this field. physical or moral integrity of the at risk of substantial harm if the child other spouse or cohabitee, the court is not transferred immediately to a Protection orders in Turkey may, in situations where the facts of place of safety. Where it is presumed the case do not automatically warrant Law No. 4320 on Family Protection that a marriage has taken place with- initiation of criminal proceedings and aimed at preventing forced marriages out the consent of a minor, the court on application by one of the parties, and all forms of violence against may thus take the steps it deems nec- order that one or more of a series of women entered into force in 1998. It essary in the child’s interest. In Ger- measures be taken. Social services or was the first time that a legal defini- many, measures available in such sit- a family mediation agency or similar tion of “marital violence” was given. uations range from injunctions, recognised body, whose role is to pro- With the aim of combating domestic through guardianship and other court tect victims of marital or domestic violence, this law permits victims to orders to complete or partial with- violence, may be instructed to inter- lodge complaints and obtain protec- drawal of custody. The custody of a vene. The court may also make an tion orders. Failure to comply with person may be withdrawn com- order that the spouse in charge of the the law or with a protection measure pletely if other measures have failed family be paid an allowance propor- can be reported to the public prosecu- or if they are deemed insufficient to tionate to any loss of income. tor. Under the law, criminal proceed- eliminate a risk. In order to protect ings can be triggered without it being In principle, these protection children from marriage effectively, it necessary for the victim to lodge a measures are uncontroversial. They will often be necessary to remove complaint. This possibility allows the are based, in every country, on laws parental rights and to separate the police and the judiciary to take action which have a twofold justification: child from the family (at least tempo- in the event of a complaint by a third both as rules for immediate applica- rarily). A judge in charge of the party, even where the victim has not tion with the self-evident aim of pro- family protection may make an complained. tecting minors and the human per- appropriate order without any formal son, and as the expression of application having been made to it, In Austria, Germany, Italy and the UK, international undertakings. Yet obsta- where it has been alerted, for in cases of domestic violence, courts may cles can potentially arise in their instance, by friends, neighbours or a make orders with regard to occupation of implementation, limiting their pre- child protection agency. If urgent the family home, or barring aggressors ventive effect with regard to forced intervention is needed – for example, from contact with their victims. marriages. This happens firstly if a child is about to leave to be mar- because courts, in their dealings with ried – the court may issue injunctions A victim may be given sole occu- families and particularly families of to ensure the child’s safety and pro- pancy of the family home even in the immigrant origin, may have difficulty tection. In Romania a government absence of any legal right of owner- understanding different types of strategy for protecting children in dif- ship or tenancy. The court will take family structure and approaches to ficulty was developed in the years its decision on the basis of the cir- dispute settlement within families. It 2001-2004. It sets out a consistent cumstances in the case, and has a happens secondly because people’s package of response measures in large measure of discretion in this relationship with the law differs from which the central role falls to the regard: it may divide the accommoda- one society to another, and lastly National Authority for the Protection tion, awarding sole occupancy of part because different societies place dif- of Children’s Rights and for Adoption of it to the victim, may require the ferent interpretations on the concept (ANPDCA), and creates an institu- aggressor to leave the premises, or of the child’s interests. We thus need

48 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives to ask if there are, in fact, general ent backgrounds and respecting their would not, in fact, be permissible principles applicable with respect to distinctive characteristics does not under the positive law of countries of family rights. There is a dual problem mean importing practices that com- origin, or which would be subject to here, involving both the compatibility promise fundamental human rights. restrictions. All this serves to empha- of different legal systems and the Nonetheless, legal opinions differ on cohabitation of different cultural sys- this question and they can sometimes sise just what an important role the tems. Accepting people from differ- be used to justify practices which law can play as a tool for integration.

Forced marriage and migration policies

In French case law over the last for family reunification is submitted, nationals into the host country. It is 100 years, applications for annulment the member state concerned may also a tool for preventing forced mar- of marriage on grounds of absence of require evidence that the sponsor has riages inasmuch as the member consent – most of them made by accommodation regarded as normal states may require that the sponsor wives and some by the public prose- for a comparable family in the same and his or her spouse be of a mini- cution service – have often been region, and which meets the general mum age, which cannot be set higher based on the argument that marital health and safety standards in force than age 21, before the spouse is able intent was lacking and the marriage there; that the sponsor has sickness to join the sponsor. was contracted with a view to circum- insurance, in respect of all risks nor- Replies received from the coun- venting immigration laws. mally covered for nationals of the tries studied indicate that Belgium, Many of these marriages were, in member state concerned, for him- France, Germany, Spain, Denmark, all likelihood, “sham” or “bogus” mar- self/herself and the members of his/ Italy, the Netherlands, Portugal and riages – marriages of convenience her family; and that the sponsor has the United Kingdom have introduced contracted with a view to one of the stable and regular resources which family reunification rules similar to parties obtaining a residence permit are sufficient to maintain himself/ those set out in European directive. or being granted a different national- herself and the members of his/her These rules cover: ity. Thus, under the heading of family without recourse to the social • the potential beneficiaries of the migration policy, several countries assistance system of the member family reunification procedure – have introduced measures to combat state. Member states are required to all the relevant pieces of legisla- them. Yet, we should not overlook the evaluate these resources with refer- tion limit the procedure to spouses possibility that some such cases also ence to their nature and regularity and unmarried minors and only involved forced marriage. and may take into account the level exceptionally allow other mem- Council Directive 2003/86/EC of of the minimum national wage and bers of the family (such as strong 22 September 2003 on the right to pension as well as the number of link) to benefit from it; family reunification 4 – the first Euro- family members. Member states may • the conditions that sponsors must pean-level law in this field – lays require third-country nationals to meet (a residence permit being down conditions for family reunifica- comply with integration measures in required); tion among third-country nationals accordance with national law, and • income and accommodation and recommends a number of meas- may apply the further condition that requirements designed to ensure ures that states should take to prevent the sponsor should have resided law- that the non-national can person- marriage under duress. fully on the territory for a period not ally meet his or her family’s needs The directive provides for the exceeding two years before an appli- in a sustainable manner and pro- sponsor’s spouse and unmarried chil- cation is made in respect of his/her vide the family with the best possi- dren aged under 18 to benefit from family member. ble housing conditions; The family reunification proce- the family reunification procedure. • the length of validity of residence dure – the main aim of which is to By way of exception, where a child permits obtained under the family maintain family unity – is designed to aged over 12 arrives independently reunification procedure. enable third-country nationals to from the rest of his or her family the The point is explicitly made in obtain residence permits authorising member state may, before authoris- working documents of the French them to remain legally on the terri- ing entry and residence under the Senate that5 family reunification is tory of the member state where the directive, verify whether he or she becoming particularly difficult, nota- application is made. Member states meets a condition for integration pro- bly in Northern European countries. may reject an application for entry vided for by its legislation as at the • New provisions were introduced in and residence of family members, or date of implementing the directive. German law on 1 January 2005. may withdraw or refuse to renew a The sponsor must have a resi- According to paragraph 32 of the family member’s residence permit, dence permit issued by the authori- Residence Act (Aufenthaltsgesetz), on grounds of public policy, public ties of a member state and valid for at the minor children of foreigners least one year. When the application security or public health. The directive thus imposes restric- 5. “Le recgroupement familial”, working docu- 4. Official Journal of the European Union, 3 tions on family reunification in order ments of the French Senate, No. LC 112, October 2003, L.251/12-L251/18. to ensure better integration of foreign September 2002.

Policies, programmes and initiatives to combat forced marriage 49 who have a limited or an unlim- may have his or her residence permit pean Convention for the Protection of ited residence permit, have a right renewed. In difficult situations such Human Rights and Fundamental to a limited residence permit for as this the authorities must consider Freedoms and in Article 23 of the the purpose of family reunifica- all the explanations advanced by the International Covenant on Civil and tion. Minor children of these for- person concerned. Chief county Political Rights. This right cannot eigners who have completed their administrative officers (“préfets”) will therefore be made contingent upon 16th year of life are to be granted a take into account – though each case the residency situation of the parties limited residence permit if they must still be thoroughly scrutinised – concerned, and consequently the reg- are fluent in German language and any information supplied by associa- istrar may not refuse to draw up a give guarantees that they can inte- tions that work with foreign nation- declaration or to celebrate a marriage grate themselves into living condi- als, particularly women. Decisions in for the sole reason that a foreign tions in the Federal Republic of this regard have immediate effect. national is illegally resident in the Germany (paragraph 32 sub-sec- A number of countries including Kingdom. Moreover, the suspicion tion 2 of the Residence Act). Belgium and France have also looked that a marriage may be one of con- • Under the Danish Act of 6 June closely at the question of marriages venience does not justify a registrar 2002 family reunification is no of convenience, focusing on the in refusing to draw up a declaration of longer recognised as a right, even requirement for marriage of a valid marriage, the purpose of the declara- for spouses and children. Moreo- residence permit, and on the concept tion being to confirm that the couple ver, family reunification for of marital intent on the part of the meet the formal requirements and spouses is possible only when both spouses. that the necessary documents have been submitted. In such circum- spouses are aged over 24. The Under the Belgian Marriages of stances, however, the registrar may sponsor must, for a period of at Convenience Act of 4 May 19997 regis- refuse to celebrate the marriage, or least three years, have held a resi- trars are responsible for drawing up a may postpone it.9 The would-be dence permit of unlimited dura- marriage declaration document and spouses then have the option of tion, such a permit being for notifying the public prosecution applying to a court for an order obtainable only after seven years’ service in cases where there is doubt requiring the registrar to conduct the residence in the country. Both as to the spouses’ consent and their marriage. In practice, a summary spouses’ aggregated ties with Den- intent to form a lasting union. mark must be stronger than with application procedure is common in Some legal commentators have any other country. However, the such cases but it is also possible to criticised the Act as an infringement couple does not have to satisfy the take proceedings on the substantive of the freedom to marry. On the basis 10 condition of ties if the spouse issue. In order to demonstrate that law develops out of practice, living in Denmark has been a absence of genuine intent to embark Marie-Claire Foblets8 argues that if Danish national for 28 years or on married life, a body of evidence the registrar uses the provisions of was born and raised in Denmark must be assembled which collectively the Act properly, it can be a means of or came to Denmark as small child constitutes grounds for legal suspi- preventing forced marriages. If not, it and was raised in Denmark and cion and represents the basis of a will merely be repressive. She notes, has resided in Denmark for 28 case. Admissions and witness state- on the basis of a study of 250 court 11 years. ments can also be used, taking decisions, that some offices of the account of the particular circum- • In the Netherlands, sponsors are public prosecution service will act on stances of each case. Absence of a required to be at least 21 years old. the basis of a registrar’s refusal to sexual relationship between the The procedure is also subject to issue a declaration while others will spouses may be taken into account rigorous financial requirements. not. but is not in itself absolute proof that It is important to note, however, It should also be noted here that a a marriage is one of convenience.12 that in France, the rules on family Belgian Government circular of 17 Spouses are to be given the benefit of reunification and proof of cohabita- December 1999, concerning the 4 the doubt.13 6 tion for at least two years include a May 1999 Act amending certain pro- On 13 July 2004 the Belgian Cham- provision whereby a spouse who has visions in relation to marriage, drew ber of Representatives brought for- come from a foreign country and, attention to the importance of the ward a draft resolution on combating because of marital violence, cannot fact that the right to marry is marriages of convenience.14 It called meet the cohabitation requirement enshrined in Article 12 of the Euro- on the Federal Government to sup- port a new law aimed at penalising 6. Under the Order of 2 November 1945 on the 7. Act of 4 May 1999 on marriages of conven- those who conclude marriages of con- entry and residence of foreigners, amended ience, Moniteur belge, 1 July 1999. by the so-called “Sarkozy Act”, Law No. 8. Marie-Claire Foblets, “À la lumière du nou- 2003-1119 of 26 November 2003 on control veau code de droit marocain et des direc- 9. Ibid., p. 34. of immigration and residence of foreigners tives européennes”, contribution to a 10. Centre pour l’égalité des chances et la lutte in France and nationality (Official colloquy organised by Belgium’s Ministry contre le racisme, La famille dans ses Gazette No. 274, 27 November 2003), the for the French Community, Equal Opportu- dimensions juridiques internationales, op. period is extended to three years if the for- nities Department, Secretariat Research cit, p. 34. eign spouse cannot supply proof that he or Office, and entitled “Mariage choisi, 11. See Circular of 1 July 1994, Moniteur belge she lived continuously in France for at least mariage subi, quels enjeux pour les jeunes”, 7 July 1994, and Circular of 4 May 1999, a year following the marriage. op. cit. Moniteur belge 1 July.

50 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives venience; creating a database about Under the law, foreign nationals from the union without losing her such marriages; enabling municipali- married to a French national may residence rights. ties to tackle the practice effectively thus be required to meet the cohabita- A stipulation has been added to by laying down clear instructions and tion condition from the date of issue Article 63 of the French Civil Code supplying municipal registry staff of the first temporary residence per- requiring registrars to conduct an with relevant information; creating mit. Proof of continuing cohabitation interview with intending spouses within district offices of the public may, in most cases, take the form of a before any marriage is celebrated in prosecution service the post of legal sworn declaration signed by both France. The purpose of the interview support officer with responsibility for spouses to the effect that they have is to confirm, at a sufficiently early coordinating the work of different not ceased to cohabit. In cases where date before the marriage ceremony, judicial districts and keeping them cohabitation is in doubt (e.g. where a that the couple’s marital intent is gen- informed, and for ensuring that each marriage took place some considera- uine. The intending spouses may be office not only monitors the local ble time previously and the applicant interviewed separately or together. authorities but also assists them as has just recently entered the country Where they are unable to attend such necessary; reviewing the system of or submitted the application, or an interview, or where it is clear from residence permits, notably by extend- where the marriage is contracted by a documents submitted that their mari- ing the waiting period for definitive foreign national illegally present in tal intent is not in doubt, the inter- authorisation of residence in order to the country), additional proof or even view may be waived. The principle give the authorities more time to con- a police check may be required. The still holds that the registrar may have sider applications; setting up an offi- effect of such a step should not be to recourse to the public prosecution cial contact point where male and increase unnecessarily the burden of service in cases where there are seri- female victims of marriages of con- proof on those concerned, particu- ous grounds to suspect that marital venience can discuss their problems; larly where the applicant has entered intent is lacking. The fact that an and taking steps to put marriages of France recently, immediately follow- intending spouse is in breach of the convenience on the agenda of the ing a marriage celebrated abroad or law on residence requirements is not shortly before a planned marriage in Council of Ministers of the European an automatic reason for notifying the France, and the procedural require- Union. public prosecution service. Nonethe- ments have been met. less the Constitutional Council has Similarly in France the Ministry of clearly taken the view that the fact of When a temporary residence Internal Affairs, Internal Security and unlawful residence may, in conjunc- permit is renewed for the first time, Local Freedoms sent a circular to tion with other aspects of a case, be and again when resident status is regarded as an indicator of marriage chief county administrative officers granted, chief county administrative of convenience. This means it is a as part of a drive to combat marriages officers are required to check that the factor that may be taken into account of convenience.15 The circular details cohabitation requirement is met. in decision-making at municipal the approach to be taken in assessing Cohabitation may be proved by sub- level. Chief county administrative whether spouses meet the require- mission of documentary evidence. officers will support all relevant ment of cohabitation. Couples are also required to sign a action taken in cases where marital sworn declaration. The cohabitation intent is in question. Where a case is 12. Liège, 17 March 1992, J.L. M.B., 1992, 955. Following their engagement, two Moroc- condition does not necessarily referred to the public prosecution cans were married before a Belgian registrar require the spouses to live under the service, it has 15 days in which either and subsequently celebrated the event. The same roof.16 Chief county administra- to permit the marriage to go ahead or woman later applied for annulment of the marriage on the ground that it had been one tive officers are required to look to conduct a fuller investigation and of convenience. Her application was favourably on applications for therefore postpone the marriage. The granted. The judgment was reversed on renewal of residence permits by for- prosecution service’s interim deci- appeal, however, the Court of Appeal noting inter alia that the spouses had intended to eign nationals who have ceased to sion and the reasons for it must be furnish an apartment in which to live and cohabit due to fear of marital violence communicated to the registrar and not to hold their marriage celebration until on the part of a French spouse. In the the parties concerned, as must the the following year, in accordance with Moroccan custom; that the woman had said case of a forced marriage this meas- final decision after investigation. The she recognised there was a considerable dif- ure enables a woman who has been time allowed for the investigation is ference in character between herself and married under duress to free herself one month, with a possible extension her spouse; that the wife’s family had envis- aged her obtaining a divorce by mutual con- of a further month. sent but that the husband had not been 14. Draft resolution on combating marriages of Mixed [French and non-French] prepared to divorce; and that the spouses convenience, tabled by the Belgian Cham- had admitted they had never had sexual ber of Representatives on 13 July 2004, Doc couples who marry outside France relations. On the basis of these circum- 51 1283/001. are required to present themselves at stances, the court took the view that at the 15. Circular NOR/INT/D/04/00006/C, of least once at the French embassy or time of the marriage the couple had indeed 20 January 2004, from the French Ministry intended to cohabit and that it was not of Internal Affairs, Internal Security and consulate, where they may be inter- therefore a marriage of convenience. Local Freedoms to Chief County Adminis- viewed together or separately: they 13. Centre pour l’égalité des chances et la lutte trative Officers [“préfets”] in Metropolitan may do so when they apply to have contre le racisme, La famille dans ses France and the Overseas Departments and dimensions juridiques internationales, op. Territories. the marriage banns published, when cit., p. 34. 16. Article 108 of the French Civil Code. the French national receives his or

Policies, programmes and initiatives to combat forced marriage 51 her certificate of marital capacity marriage. Under Italian law, appli- extending stipulated periods of (not the marriage certificate), or cants for naturalisation must have proven cohabitation nor giving courts when the marriage is entered on the been lawfully resident in the country the power to decide if a cohabitation civil registrar. for at least six months or must have requirement has been met is likely to been married for three years. The Collectively these measures – counter the problem of marriages of only grounds for refusal are if an which take effect either before a mar- convenience effectively. Given that applicant has been convicted of a riage is celebrated or when it is offi- marriage, for some people, is essen- criminal offence or is believed to rep- cially registered – are designed to pre- tially a means of changing their resent a security risk to the Republic. vent or combat forced marriage. nationality, it might seem sufficient, for preventing marriages of conven- Another important factor in any In Denmark, the Netherlands, consideration of forced marriage is Spain and the United Kingdom, ience, to break the connection the question of how French national- spouses have to follow the naturalisa- between what is a voluntary step ity is acquired. The fact that a spouse tion procedure under ordinary law under family law and what is an inte- automatically acquires nationality on but the periods of residence required gration-orientated measure. To do so, marriage may encourage some par- are shorter: whereas the normal however, would contravene the Euro- ents to choose for their child a mar- requirement in Denmark is residence pean Convention on Human Rights riage partner who lives in a European for nine years, the spouse of a Danish and disregard the question of immi- country and has dual nationality – national will be eligible for naturalisa- gration and integration. Is it possible, that of the country of origin and that tion after six years depending on the therefore, to use this area of the law of the host country – and to insist on duration of the marriage. In Spain the to prevent marriages under duress? the marriage. length of residence required is The answer is not straightforward. reduced from 10 years to one year, In France and Portugal, a foreigner Measures taken by governments to and in the UK from five to three who marries a national can obtain combat sham marriages must not years. In the Netherlands the resi- nationality via a straightforward dec- dence requirement does not apply to result in excessive suspicion being laration procedure: one year after the spouses of Netherlands nationals pro- directed at marriages involving for- marriage in France, or three years vided they have been married for at eigners, and particularly mixed mar- after it in Portugal. France has placed least three years. And whereas riages. Nor, however, should it be for- restrictions on acquisition of nation- people who acquire Netherlands gotten that this form of fraud can ality: if the couple has ceased to nationality through the ordinary nat- conceal a forced marriage. As well as cohabit, if the foreign national has uralisation procedure lose their origi- individual cases of marriage fraud, been sentenced for a criminal offence nal nationality, spouses of a Nether- or has received an expulsion order, or there are organised networks that lands national are allowed to retain if he or she has insufficient command will set up marriages of convenience dual nationality. of the French language. for foreigners unlawfully resident in European countries who are pre- In Germany and Italy the law rec- It is clear from a comparative pared to pay large sums of money – ognises naturalisation of foreign study of the legislation of the differ- the “wives” being purchased or forced spouses. In Germany certain condi- ent countries that there have been into the union. It is to be hoped that tions are attached for the applicant fresh developments in the legislation and his/her family (paragraph 8, sub- on foreign nationals. Belgium and the new requirement in France that section 1 No. 4 of StAG): lost of the France have taken specific measures registrars should interview intending original nationality (paragraph 8, sub- to combat marriages of convenience, spouses before a marriage in order to section 1 No. 1 of StAG), respect of and French law contains a number of verify marital intent will have some German way of life as well as a three- provisions directed against forced effect in combating both marriages of year length of stay and two years of marriage. It seems clear that neither convenience and forced marriages.

Approaches to combating forced marriage

All the countries studied have audiovisual projects, research pro- helping people who have been forced facilities for the victims of forced grammes. Some countries have pro- into marriage. marriages, including advice centres, vided specific funding, introduced Before looking at some of the shelters and law centres. In addition, support measures and set up tele- schemes and activities, it is important measures have been taken among phone help lines. More rarely, efforts to note that the types of information ethnic communities: so-called “inte- received from the different countries have been directed at those responsi- gration contracts”, action in the com- vary widely, making detailed analysis munity, in schools and through clubs ble for forced marriages. In all these impossible. What follows is therefore and associations, police initiatives, activities a networked approach simply a summary of initiatives in a training courses, information supply, emerges as the most appropriate for number of countries.

52 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives Types of provision Advice centres who find themselves in crisis situa- accept a daughter’s decision to live People who refuse to be married tions due to a whole range of prob- elsewhere. In many cases the associa- 17 by force need to have their own iden- lems. tion will resort to the courts”. tities acknowledged, they need to be A more specifically targeted initia- Constant efforts are made in supported in their bid for freedom, tive is that of the Papatya Association Turkey to increase the number of and they need to be listened to with in Germany, funded by the Youth and shelters. There are currently thirteen sympathy. For these reasons some Sport Department of the Federal State shelters managed by the Directorate countries have set up advice centres of Berlin, which works to prevent vio- of Social Affairs and Child Protection where people in such situations can lence against girls. Birim Bayam at the Prime Minister’s Office and go to tell their stories, can help to Tekeli reports: “Around 30% of the eleven managed by various private- reinforce one another’s confidence girls who come to the association are sector bodies. In addition, Law No. and can reach and implement their under threat of forced marriage. The 5257 on local government has helped own decisions. In Germany there is sale of fiancés is one aspect of this to increase the number of reception the Papatya Association and in type of violence. At its most extreme, facilities, since it requires all munici- France the Mouvement Français pour it can take the form of honour killings pal authorities to come to the assist- le Planning Familial (MFPF) [French or genital mutilation. The associa- ance of women and child victims of Family Planning Movement]. Advice tion’s aim is to provide protection, violence. Municipalities with more centres, which victims of forced mar- refuge and advice to girls who want to than 50,000 inhabitants are obliged to riage can visit repeatedly in making escape from family violence, and we open protection centres. These their decision, play an essential role. have an eight-place refuge apartment municipal measures will help to It is vital for victims to be able to talk for them in Berlin. The address is improve the quality of the protection about their wishes and doubts, and secret so that the girls will not be pur- and support provided to victims. sued by their families. Contact has to about the suffering they experience For the period 2003–2007, the Gov- be made through the SOS Youth serv- as a result of being denied freedom at ernment of Sweden has set aside SEK ice, and the association will then call the most intimate, personal level. 180 million for sheltered housing and the girl. There is an initial interview other measures for young people at Shelters to assess the seriousness of the threat risk of violence in the name of hon- Homes run by associations for and determine whether the girl needs our. In 2003, SEK 20 million were women who have been ill-treated in shelter. If the association agrees to allocated, the bulk of which went to Portugal, shelters for battered women take her in, the girl must respect the the county administrative boards in in the Netherlands, shelters for vic- ground-rules in the refuge. The girls Stockholm County, Västra Götaland tims of physical violence or sexual or receive support from German, Turk- County and Skåne County to set up physical assaults in Turkey, public ish and Kurdish social workers who sheltered housing. In 2004 the county authority accommodation in the UK, have been specially trained. When administrative boards in the three reception centres run by the volun- they are admitted they are given metropolitan counties have received tary sector in Croatia, accommoda- assistance to plan either for a return SEK 7.5 million each for continued tion services for women and children to the family or for living apart from measures for sheltered housing and who are victims of violence in Malta, them. The guidance offered will other purposes. shelters run by women volunteers in depend on the individual girl’s his- Norway, shelters for both men and tory, wishes and capabilities. The “Maisons de justice” women in Sweden, homes and hos- girls are encouraged to talk to their tels in France – all of these are places families, either at a meeting in a In Belgium and France “Maisons where the victims of forced marriage youth social worker’s office or by tel- de justice” [law centres], run by the can find refuge and accommodation. ephone or letter. The aim is to help regional courts, can provide legal What they need is somewhere to stay them formulate and defend their own information to victims of forced mar- on a temporary basis in a safe envi- ideas and plans for the future. At riage and help them to apply to the ronment, where they can go in an meetings with families, the parents courts for an annulment. emergency. Obviously the types of are often adamant that their daugh- provision listed were not developed ters must return home. If a girl is too 17. Birim Bayam Tekeli, “L’Association Papatya et l’accueil des jeunes filles à Berlin”, in in response to the specific problem of fearful of such a meeting it will not Hommes et Migrations - Femmes contre la forced marriage: they accept people take place. Only 10% of parents violence, op. cit., p. 110.

Other initiatives Work with ethnic communities In Sweden, in 2003, acting on Gov- women’s and children’s rights. The ernment instructions, the Commis- commission submitted two progress In the UK, the Community Liaison sion for State Grants to Religious reports and, on 31 December 2003, a Unit attached to the Foreign and Communities engaged in more in- final report. In July 2005, the com- Commonwealth Office handles some depth dialogue with religious com- mission was granted SEK 300,000 for 200 cases a year. munities on issues relating to continued dialogue with religious

Policies, programmes and initiatives to combat forced marriage 53 communities on society’s fundamen- Education on 7 March 2002 and enti- works in partnership with other bod- tal values. tled “Equality, mixed society and sec- ies. Belgium has victim support serv- ularism: from the general aim of Associations also play an impor- ices which can offer emotional and emancipation through education to tant role in the UK. Anti-Slavery psychological assistance to victims of combating forced marriages and pro- International, founded in 1839, lob- forced marriage. Victim support falls moting equal rights”, the almost 200 bies countries where slavery still within the remit of the Community participants discussed what general exists to bring forward measures to ministries responsible for social wel- provision was relevant to prevention end it (and it defines forced marriage fare. of forced marriages and asked as a form of slavery). It promotes In France, the Ministry for Social whether specific responses were research and works with local organi- Affairs and the Department for Parity required. The issue was thus seen as sations to raise awareness of the prob- and Equality in the Workplace have an integral part of the education sys- lem. Other associations working in approached the question of forced tem’s general mission and basic prin- the field are Southall Black Sisters, a marriages in the context of the “inte- ciples. Schools in fact have a duty, group that defends single women’s gration contracts” which applicants under a ministerial instruction on the rights and handles some 200 cases for residence permits are asked to subject, to report suspected cases of annually, and Reunite, which works 20 sign.18 The aim here is to prevent sexual violence. to combat forced marriage. community-based narrow-minded- In Sweden, measures have been In Belgium several associations ness by encouraging vulnerable taken by the National Agency for have specialised in working with vic- groups of people, particularly women Improvement of Schools and the tims of forced marriage: Istappen.be in certain communities, to commit National Centres for Education in Val- supports the victims of both forced themselves to a process of integra- ues. The Government has funded the marriages and marriages of conven- tion. production of relevant educational ience, while Payoke, a reception cen- Social welfare initiatives resources and initiatives to highlight tre, is concerned with the victims of the situation of vulnerable girls and human trafficking and arranged mar- In 2000 Norway introduced an boys in families where the notion of riages. In Antwerp the municipality action programme to tackle the prob- honour is centrally important. A has set up a unit to combat marriages lem of domestic violence. A further report was published entitled of convenience and the “Meldpunt programme with a similar aim was “Stronger than you think: how gedwongen huwelijk” offers support initiated in 2004 and more recently schools support girls and relate to and advice about the steps to take in an action programme was launched families” (available only in Swedish). cases of forced marriage. to prevent forced marriages. In Norway, some organisations In Sweden the National Youth Action by voluntary associations Affairs Office has received financial supported by public funds can assist support from the Swedish Heritage Associations also play a key role in persons facing problems relating to Fund to fund projects to help girls. preventing forced marriages and forced marriages and assist those in helping people who have been the difficult situation. Action in schools victims of such unions. Action by the police In some countries, schools are In France in 2001 the Voix de assuming a role in efforts to prevent Femmes [Women’s Voice] association In many countries the police have 19 forced marriages. In France, at a col- handled 145 such cases. France Terre a role to play in the fight against loquy organised by the Ministry of d’Asile [France: Country of Asylum] is forced marriages. involved in efforts to prevent and In Austria the police have immedi- 18. Circular NOR/INT/D/04/00006/C, of combat violence against refugee ate powers, where a victim’s health or 20 January 2004, from the French Ministry of the Inner, Internal Security and Local women. A number of other associa- freedom is at risk, to bar the perpetra- Freedoms to Chief County Administrative tions, including Elele, Voix de tor of the violence from the victim’s Officers [“préfets”] in Metropolitan France Femmes, Voix d’Elles-Rebelles and home (the “Article 38a procedure”). and the Overseas Departments and Territo- ries states that residence permits are to be the GAMs, work at grassroots level by Such banning orders have to be con- issued on condition, in all cases, that inte- providing advice in schools. The firmed by a higher authority within gration is achieved under Article 6 of the Fatoumata Association for Women’s 48 hours. The police will check, relevant order. The aim is to assess the nature of the foreign national’s intention in Emancipation (AFEF) offers one-to- within three days, whether the perpe- applying for residence by asking him or her one support and advice, organises trator of the violence has complied. If to engage in a process of social and occupa- awareness-raising conferences and not, a fine may be imposed, and tional integration in France, involving learn- ing the language, becoming familiar with repeated breach of a ban can lead to and observing the main principles of the 19. See Marie Lazaridis, project leader, Ministry imprisonment. This type of banning French Republic, placing his or her children for Youth, National Education and Research, order applies for only 10 days, but it in school, undertaking vocational training “Les filles à l’école: de l’égalité des chances and becoming involved in the life of the à la prévention des mariages forcés”, in may be extended for a further 10 days local community. The mayor of the munici- Hommes et Migrations - Femmes contre la if the victim applies to a civil court for pality in which the foreign national lives violence, op. cit. a protection order. When the police may be consulted on this last point. Appli- 20. Circular 97-175 of 26 August 1997 to chief cants for residence permits can be asked to education officers, heads of county educa- use their powers under Article 38a sign an “integration contract”. tion services and school principals. they have a duty to notify the victim

54 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives of his or her means of recourse in has to stop work for more than 28 1997. The state may, at a later date, civil law. weeks as the result of an attack, com- require that any money awarded be The UK Home Office encourages pensation for loss of earnings may be paid back if the court finds that no all initiatives, private or public, that payable from the 29th week. offence was committed and the are designed to combat marital vio- In Germany, under the law on victim receives compensation for lence. In January 2001, the Home compensation for victims (Opferent- damage suffered. The state is also Office Immigration Service funded a schädigungsgezetz, OEG), victims of empowered to recover amounts paid, project to crack down on forced mar- intentional violence may, on request, by a civil-law subrogation action riage, as a result of which 240 cases be awarded financial compensation against the party responsible. were resolved and 60 girls who had for all damages of a pecuniary nature In Portugal, Executive Order 423/ been held in the country against their or to their health. Among other 91 of 30 October 1991 provides for vic- will were repatriated. Police forces things, this financial compensation tims of violent crime to receive finan- have a key role to play in the practical covers pecuniary losses suffered and cial support from the state. Victims of application of official guidelines and the cost of preventive and other med- marital violence are among the cate- they have set up their own specialist ical treatment. It is available to gories covered. If, as the result of an units to which victims of marital vio- German or European nationals and to assault, the victim is unable to work lence can turn for help. Women are foreigners who have lived lawfully in for at least 30 days, has suffered a sig- entitled to request that they be dealt Germany for three years. Visitors and nificant reduction in living standards with by a female police officer. tourists (having been in the country and has not obtained compensation The police in Belgium can assist for less than six months) receive through the courts, there is an entitle- victims of forced marriage by giving financial compensation in the event ment to state support. The amount them addresses of law centres or of serious damage. Payment does not payable covers only material injury. victim support services. depend on conviction of the perpetra- It is fixed with reference to the In Norway in 2002, police forces tor of the damage in the criminal amounts payable to victims of road introduced the district-level post of courts. accidents and must take account of coordinator of action against domes- In Spain, if an act of marital vio- any other sources of income that the tic violence, the aim being to rein- lence constitutes an offence and inca- victim may have. Applications are force police efforts at prevention in pacitates the victim for more than six made to the Ministry of Justice, this area. months, and the victim receives no which has an ad hoc committee to In January 1999 the Portuguese compensation or payment from consider them. Act 129 of 20 August Council of Ministers adopted the either a private insurance fund or the 1999 provides for a system of provi- known as INOVAR programme, run social security system, state aid may sional aid to the victims of offences by the Ministry of Internal Affairs, in be payable under a national solidarity under Article 152 of the criminal which a unit with a staff of five was scheme. Entitlement depends on a code, specifically victims of marital given the task of working to improve final court decision in the criminal violence, if as a result of the offence relations between victims and the case, and the maximum level of any they are placed in financial difficulty. police. Its task is to raise awareness award is fixed with reference to the Applications for provisional aid may within the police of violence-related national minimum monthly wage: it be made by the victim in person, by a issues, to help set up a database on will be double that amount while the women’s aid association or by the the problem, encourage modernisa- victim is incapacitated, subject to a public prosecution service. The state tion of police stations and inform the six-month waiting period; and may require that any sum awarded, wider public about violence. Larger between 40 and 130 times the same provisionally or otherwise, be paid police stations have units that special- amount, depending on the degree of back if the victim obtains compensa- ise in domestic-violence cases. incapacity, in cases where the inca- tion. To recover amounts paid the pacity is permanent. The sum is then state is also empowered to take subro- Financial support adjusted to take account of personal gation action against the party Persons who have suffered marital circumstances (e.g., the victim’s responsible. violence in the UK are no longer inel- financial position and whether there Other forms of assistance igible for the financial support paya- are any dependents). Applications ble to the victims of crimes of vio- are processed by the Wages and Pen- In Spain, Act 35/1995 of 11 Decem- lence generally. Victims will receive sions Directorate of the Ministry of ber 1995 concerning violent crimes, financial support only where the per- the Economy and Finance. If the crimes against sexual freedom, and petrator of the violence has been ministry turns an application down, aid and assistance to victims, applies prosecuted and the victim has ceased the victim may appeal to an inde- in particular to victims of marital vio- to live permanently with the perpe- pendent ad hoc commission set up lence. Chapter I of the Act was given trator. The support takes the form of a under the relevant act of parliament effect by Royal Decree 738/1997 of 23 one-off payment, the amount of of 1995. The legislation provides for May 1997. However, no implement- which is determined according to an provisional aid to be granted pending ing legislation has yet been intro- official scale. It may be paid to cover a court verdict if the victim’s financial duced in respect of Chapter II exceptional expenses (such as the situation is precarious – a concept (“Assistance to victims”). The 1995 cost of work in the home). If a victim defined by Government decree in Act places on the public authorities

Policies, programmes and initiatives to combat forced marriage 55 investigating the case a duty to support and assist girls and woman at In the Netherlands, training inform the presumed victim that they risk from “honour”-related crimes of courses are run by associations that have the possibility of applying for violence. are active on the issue. state aid. Public prosecution services In Turkey, there is a telephone The French département of Seine- were reminded of this duty in Circu- hotline (ALO 183), which operates Saint-Denis has run a special training lar 2/1998 of 27 October 1998, issued during working hours, which women course, “Preventing the practice of by the Head of Public Prosecutions. and children, in particular victims of forced marriage: an initial training The Act also requires the Ministry of violence and sexual exploitation, can course for social services staff who Justice to set up victim-assistance call for advice on legal procedures, work with schoolchildren”. Designed offices at all courts where they are psychological counselling and public- by the county council, the education needed. Circular 1/1998, issued by awareness measures. service and the Délégation aux Droits the Head of Public Prosecutions, rec- de la Femme et à l’Egalité [Women’s ommends that each prosecution serv- Work with aggressors Rights and Equality Committee] of ice set up a domestic-violence unit In Norway, attention has also been the Ile-de-France Region, the course with specially trained staff. directed at the perpetrators of such programme was published in 2002 In Norway, victims of sexual or crimes. under the title “Forced marriages – domestic violence can apply for free In Germany, where there are well cultural aspects and legal remedies”. legal aid. The rule covers women developed support systems, the fed- A project on prevention of forced who suffer sexual violence perpe- eral government wishes to see addi- marriages was undertaken, with the trated by their husbands. tional help measures for aggressors. help of the school social assistant, by advanced health and social care stu- Telephone help lines In Sweden the National Organisa- dents at Eugène Delacroix vocational tion of Occupational Crisis Centres In the UK, Germany and Austria, high school in Drancy, Seine-Saint- for Men has received funding to there are 24-hour telephone help Denis, which is officially classed as a develop means of assisting male lines for people in difficulty. “sensitive area”. The project was immigrants with violent tendencies. In France, under anti-discrimina- assisted by the association GAMS and Over a period of years, various tion legislation passed on 16 Novem- included a showing of the film Forced projects have been carried out under ber 2001, telephone help lines for vic- Marriage, followed by a discussion the aegis of the national prison serv- tims of racial discrimination were set between GAMS members and the 150 ice with a view to developing meth- up in each département. In coopera- students taking part.21 ods of preventing recidivism. tion with the courts and bodies In Norway, training courses are already working to combat discrimi- Training and information initiatives available for professionals who work nation, a victim support scheme was with the police and health services, In Austria, on the initiative of the also set up at département level. with a view to helping them deal Minister for Health and Women, six People who have been forced into more effectively with both the perpe- Ministries are closely collaborating to marriage can report their problems trators of violence and their victims. through this system. The anti-dis- draw up measures to prevent harmful practices, especially forced marriages In Sweden, the government organ- crimination services observe the rule ised a series of seminars for repre- of professional confidentiality. and female genital mutilation. These include. information campaigns tar- sentatives of the public authorities, In Norway, an important measure geted to teachers, as well as legal religious denominations, women’s to combat forced marriage is the Tele- amendments where necessary. shelters, organisations that work with phone Information service. The Min- During the Austrian EU Presidency, immigrants and other NGOs, as well istry of Children and Family Affairs “Harmful traditional practices” will as experts in the field. The focus was has organised a national telephone be a topical issue (Conference of the on how the public authorities and advice service. The service started in Ministers for Gender Equality, Brus- NGOs might cooperate to improve April 2000. The helpline has to main sels, 25 January 2006). matters for girls and their families. target groups: those who are in crisis In France, provisions entitling vic- because they are exposed to forced In the UK, general practitioners tims to information from police offic- marriage, and those who need to working in the National Health Serv- ers and to legal assistance were know how to help young people in ice have received training to help included in the Framework Justice crisis because of forced marriage. The them identify signs of domestic vio- Act passed on 9 September 2002 (the number of calls from young people in lence. “Perben Act”). Under Section VIII of crisis increased over the last three In Croatia, public prosecutors and the Act, “Provisions on Aid to Vic- years. One explanation is that now magistrates have received training tims”, victims have an actual right to young ones know where to go for about European law on domestic vio- be informed (see Articles 63 and 64). help and that they have experienced lence. that they are helped. In Germany, in an initiative to 21. See Caroline Durand, “Prévention des In Sweden, too, “Terrafem”, a sup- raise awareness within police forces, mariages forcés: que retiennent les port network for immigrant women, the federal authorities have organised lycéen(ne)s des actions de prévention sur les pratique des mariages forcés conduites received funding for an emergency training courses and rationalised the au sein d’établissements scolaires?”, post- telephone service in 20 languages to police approach to forced marriages. graduate dissertation, op. cit.

56 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives Police officers are required to use all charged with kidnapping, domestic vio- Sweden”. These reports were pub- means at their disposal to inform vic- lence or child abuse. lished in 2003. tims of their rights with regard to In Latvia the Anti-Violence Centre at The National Institute of Public applying for compensation and Dardedze has conducted a research Health has been commissioned by the taking civil action. If a prosecution is project on marriage, having children, Government to collect, analyse and dis- under way or a case has been referred and factors that promote good parent- seminate information about how to for criminal investigation the victim child relationships. organise different forms of support for must be notified of the legal-repre- In Sweden, on government instruc- parents in order to achieve concrete sentation and protection arrange- tions, the Association of Local Authori- results. The Institute had to submit its ments available, of the option of ties in Stockholm a made a study of rela- report to the Government no later than receiving help from a local authority tionships between individuals and their 31 December 2004. service or an accredited victim-sup- families. The starting point for the Since 1994 Sweden has had a port association and of the possibility research was the crucial role played by National Centre for Battered and Raped of applying to the Criminal Injuries the family in the transmission of a cul- Women. Converted into a national insti- Compensation Committee (CIVI). ture, and its influence on the individ- tute; its role will be to develop methods Under Article 65 of the Act the vic- ual’s ability to cope with the values and for care and treatment and to serve gov- tim’s entitlement to legal aid is no demands of a new country. March 2003 ernment agencies, organisations and longer subject to means-testing. saw the publication of a report entitled the general public as a knowledge and In Norway a National Centre for “Working with patriarchal families – a research centre on men’s violence Information and Research into Vio- survey of activities”, intended for use by against women, sexual abuse and rape. lence and Post-traumatic Stress has social services, in schools and nursery The prospects of establishing a national been set up. It carries out research schools, and by relevant public authori- emergency telephone line for women and disseminates information and ties and NGOs. It might be found on the that are victims of men’s violence are the findings of its studies. association’s website. considered. A report on this work had to be submitted no later than 30 November In Sweden, the National Office for The government, in co-operation 2004. Health and Wellbeing, acting on the with the Swedish Integration Board, the government’s instructions, has pro- National Institute of Public Health, the Finally, the Swedish National Board duced and distributed an information National Board of Health and Welfare, of Health and Welfare has been commis- booklet about girls exposed to threat the National Agency for Education, the sioned by the Government to monitor and duress. The booklet is for social National Board for Youth Affairs and the the establishment of sheltered housing services staff and is available on the Office of the Children’s Ombudsman, and investigate the possibility of setting Internet. has highlighted good examples and up a national system of advisory sup- methods for preventing conflicts port for the social services and others. Audiovisual initiatives between the individual and the family The Board had to report on its work by 31 March 2005. In the UK, a video designed to that may be caused by ideas about hon- The concept of a summary of poli- raise awareness of the problem of our. cies, schemes and initiatives suggesting forced marriages in the 12-18 age • “Instructive examples – preventing action in one specific direction is, at this group was produced in March 2002. individual-family conflicts” (Report stage, no more than that – an idea or 2002:14); In France, a film entitled Forced ambition. It is not a reality. The fact is Marriage was produced using an • “Fruitful examples are there to make that, through the combined effects of extract from a play written and acted use of…” (stencil series 2002:8), an demographic, economic, historical, by girls taking the health and social evaluation of eight projects designed political and social variables, each coun- care course at Sabatier vocational to promote gender equality and pre- try has developed its own particular high school in Bobigny. The film vent conflict that were carried out characteristics – hence the range of includes interviews with people with support from the Board in 1999– approaches described. Investigating working in the field. Since 1998 the 2000; forced marriage involves questioning film has been used on training • “The 2002 Integration Report” The the whole mythic edifice of opposition courses for both school students and report includes a special chapter on and complementarity between the social workers. conditions affecting the childhood sexes, as well as the basic concepts of and adolescence of children and family and society and different percep- Research young people from foreign back- tions of them. Preventing and combat- In the UK, the Home Office monitors grounds. A report on this assignment ing forced marriage is nonetheless the phenomenon of forced marriages was delivered in March 2003 (in essential. It is likely that solutions lie and published a report on the situation Swedish only); both in universally applicable institu- in 2000. It also explores solutions to the • “The way in. Voices on integration tions and in more specialised projects. problem: the report recommends that and gender equality”, which gives What this study has shown is that action forced marriage should no longer be specific examples of preventive proposals are not enough. Resources dealt with as a family issue but rather as action, and “Patriarchal enclaves or must also be made available for assess- a breach of the law. It should be reported no-man’s-land? Violence, threats and ing the effectiveness of any action to the police, and parents could then be restraints towards young women in taken.

Policies, programmes and initiatives to combat forced marriage 57 Proposed recommendations

The study suggests that action is needed on a number of fronts:

Information, awareness raising, education and training

• Women and children should be • There is a need for awareness-rais- and family problems that women better informed about their rights ing among public prosecutors, dip- encounter. with regard to preventing and lomatic and consular staff, opposing forced marriages. • Training programmes about magistrates, police officers and • Information projects need to be women’s civil rights need to be devel- developed for both girls and boys social workers in relation to forced oped for those who work in the com- at school. marriages and the legal, cultural munity.

Legal reforms to prevent and combat forced marriages

• Treaties that ignore the constitu- grounds subject to discrimination their criminal-law provisions a tional principle of male-female with regard to personal status. specific offence of forced mar- equality should be denounced. • Governments should be encour- riage, with penalties reflecting • Where there is a choice of law, aged to amend their legislation to aggravating circumstances. preference should be given to the make 18 the minimum marriage law of the normal place of resi- age. • Limitation periods for the com- dence so as to avoid making • A recommendation should be mencement of civil and criminal women from immigrant back- made to governments to include in proceedings should be reviewed.

Policies and initiatives to help those involved in forced-marriage situations

• Contact points need to be devel- selves in emergency situations for • The gender dimension should be oped where people can report whatever reason. incorporated in policy-making on their experiences and receive • Women’s rights associations ordinary law. assistance, support and advice. should be supported. • Action programmes need to be • Inter-association networks need developed targeting those respon- • Special accommodation needs to financial support. sible for forced marriages. be made available, with an empha- • Specific initiatives for women sis on respecting personal inde- need developing as part of munici- • Resources are required to assess pendence and providing reception pal policy- making and policies for the effectiveness of the proposed centres for girls who find them- integration. policies and initiatives.

Resources for research into the reality of forced marriages

• A working party should be set up – to raise awareness of the problems introduced, and the roles of those to conduct a European-level study experienced by victims of forced involved in forced-marriage situa- of forced marriages. marriage and their families; tions. – to examine legal practices, the poli- The aims would be: cies and approaches that have been

58 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives Some references

France

Ph. Kahn (sous la dir.), “L’étranger et le “Prévention de la pratique des mariages Conseil économique et social, droit de la famille, pluralité ethnique, forcés”, première initiative de for- “Femmes immigrées : répondre au pluralisme juridique”, Paris, Mission mation des personnels du service double défi de l’émancipation et de recherche “Droit et justice”, La social en faveur des élèves en de l’intégration, vaincre la double documentation française, July Seine-Saint-Denis, Délégation discrimination”, contribution by 2001. régionale aux droits des femmes et the Délégation aux droits des Conseil national pour l’intégration à l’égalité, Préfecture de la Région femmes et à l’égalité des chances des populations immigrées, “Le d’Ile-de-France, October 2000. entre hommes et femmes to the statut personnel et l’intégration report of the Special Planning “Mariages forcés, aspects culturels et sociale, culturelle et nationale”, Committee on “Les défis de l’immi- législatifs”, Délégation régionale Report and Opinion, October 1999. gration future”, December 2003. aux droits des femmes et à l’éga RFSM, A. Etiemble, “Mariages Cahiers d’études sur la Méditerranée lité, Préfecture de la Région d’Ile- arrangés, mariages forcés : question orientale et le monde turco-ira de-France, September 2002. nien, “L’immigration turque au de frontières ? Étude de cas : filles féminin”, report on colloquy “Mariages arrangés, mariages con- issues de migrations maghrébine, organised by Elele, No. 21, 1996 traints, mariages forcés, se former turque et d’Afrique noire”, FASILD research project, ongoing Elele, “Honneur et violences, fatalité ou pour agir”, Délégation régionale conjoncture pour les femmes aux droits des femmes et à l’éga C. Durand, “Prévention des mariages turques ?” UNESCO colloquy, 1997. lité, Préfecture de la Région d’Ile- forcés : que retiennent les de-France, October 2004. lycéen(ne)s des actions de préven- D. Mabrouk et L. Berkani, “Violences tion sur la pratique des mariages sexuelles dans les banlieues” “Les femmes de l’immigration face forcés conduites au sein d’éta Manière de voir, April-May 2003. aux discriminations sexistes, rac- blissements scolaires”, postgra- “Les violences exercées dans les istes et sexuelles”, proceedings of a duate dissertation, University of familles d’origine étrangères et de national colloquy organised by Paris X, Nanterre, Psychology and culture musulmane. Le développe- FASILD and the Secrétariat d’État Education Studies Research and ment des capacités de négociation aux droits des femmes et à la for- Training Unit, Department of Edu- interculturelle, (Germany, Bel- mation professionnelle, 22 Novem- cation Studies, October 2004, 69 pp gium, France)”, report, l’Adri, ber 2001. and appendices. 2002. Le Mouvement français pour le Plan- “Femmes de l’immigration face aux “Actions de prévention dans les relations ning familial, International Collo- discriminations sexistes, racistes, amoureuses des jeunes”, programme quy on “Les mariages forcés”, Paris, culturelles”, La lettre du FASILD, Viraj implemented in Ile-de- 4 and 5 November 2004. No. 57, September 2002. France, June 2001 C. Beski, “La fin de la soumission”, “Prévention de la violence sexiste dans Association Femmes contre les inté- l’Ecole des Parents, June 1999, and les relations filles-garçons”, adapta- grismes, Guide pratique d’informa- “Familles de l’autorité parentale? Le tion of the Quebec programme tion sur les droits des femmes cas des parents d’origine étrangère”, Viraj, May 1997, updated July étrangères ou d’origine étrangère, Migrants Formation, No.12, March 2002. June 2002. 1998.

Some references 59 L. Carroll, “Mariages arrangés : le droit, M. Lazaridis, “Les filles à l’école : de E. Rude-Antoine, “Le mariage des la coutume et la jeune fille au l’égalité des chances à la préven- Marocains et des Vietnamiens en Royaume-Uni”, Publications tion des mariages forcés?”, France : contrainte, persuasion ou Wluml, dossier No. 20, 1997. Hommes et Migrations “Femmes liberté”, Hommes et Migrations, No. Z. Guerraoui, “Les relations filles-par- contre la violence”, No. 1248, 1227, September-October 2000. ents dans l’immigration maghré- March-April 2004. E. Rude-Antoine (ed.), “L’étranger en bine en France”, Cahiers de sociolo- G. Petek, “Mariages forcés de la régle- France, face et au regard du droit – gie économique et culturelle, No. 23, mentation à la réalité”, Hommes et Enquête auprès des populations June 1995. Migrations “Femmes contre la vio- d’origine marocaine et vietna- C. Helfter, “Mariages forcés : une vio- lence”, No. 1248, March-April mienne résidant en Ile-de-France”, lence qui sort du silence”, ASH- 2004. report, Mission de recherche “Droit Actualités cahiers hebdomadaires, G. Petek, “Des gendres et des brus et justice” Pubic Interest Group, 21 December 2001, No. 2242. importés de Turquie”, Hommes et December 1998, 198 pp W. Hoge, “Liaison mortelle, les Pakista- Migrations No. 1232, July-August M. Roques, “Mariages arrangés, ma naises d’Angleterre qui se marient 2000. riages forcés”, Lien social, No. 627, par amour”, Publications Wluml, G. Petek, “Le parcours chaotique des 27 June 2002. dossier No. 20, 1997. familles turques en France”, C. Jama, “L’accompagnement socio- Hommes et Migrations, No. 1185, juridique des femmes victimes de March 1995. mariages forcés”, Hommes et E. Rude-Antoine, “Des vies et des Migrations “Femmes contre la vio- familles, Les immigrés, la loi et la lence”, No. 1248, March-April coutume”, Paris, Odile Jacob, 1997, 2004. 327 pp.

Belgium M-C. Foblets (sous la dir.), “Femmes S. D’hondt et M-C. Foblets, “De strijd Centre pour l’égalité des chances et la marocaines et conflits familiaux en tegen ontoelaatbare huwelijken : lutte contre le racisme, “La famille met welke midinette ? Recht- dans ses dimensions juridiques immigration : quelles solutions jurid- spraakoverzicht – Twee jaar toe- internationales”, Brochure, upda- iques appropriées ?” Antwerpen, passing van de Wet van 4 mei ted as of January 2003, 110 pp. Maklu, 1998 1999”, Rechtsleer, No. 2.1. 2002, 115- Disk8/Colloques/Lublinmai2004/ 149. InterventionCN-FR-doc : “La recon- A. Garcia (dir.), I. Dumont, E. Melan, naissance et le mariage en S. D’hondt, “De wet van mei 1999 : de V. Monshe, “Le mariage : un choix Espagne, en Grèce, au Portugal, au strijd tegen schijnhuwelijken bur- Royaume-Uni et en Turquie” in pour la vie ? Une enquête sur les gerrechtelijk geconsacreerd”, Tijd- Colloque “Droit de la famille en aspirations et attentes des jeunes schrift voor Vreemdelingenrecht, No. Pologne et en Europe, Perspectives envers le mariage”, final report, 15 2.2000, 109-118. de changement”, Catholic Univer- June 2004, 141 pp. H. Dorzée, “Les jeunes misent encore sity of Dublin, 12-14 May 2004 sur le mariage”, Quotidien Le soir, N. Watté et H. Boularbah, “Les nou Secrétariat Général du Ministère de la 20 January 2005, p. 14 velles règles de conflits de juridic- tions en matière de désunion des Communauté Française, Service M. Baus, “La bague au doigt de force”, époux. Le Règlement communau- de la recherche, Revue Faits et La libre Belgique, 20 January 2005, taire “Bruxelles”, Journal des tribun- Gestes, Synthèse, No. 15, 8 pp. p. 5. aux, 28 April 2001.

Croatia Thematic report on “Violence against M. Alincic et D. Hrabar, “Le droit de la Women”, E/CN.4/2003/75/Add.1, famille durant la période de la paras.1938-1952 création du nouvel ordre légal”, in Regards sur le droit de la famille dans le monde, The international survey of family law, J. Rubellin- Devichi, PUL, 1999, p. 157-165.

Morocco Ligue marocaine démocratique pour de la femme marocaine et le code May 2000. les droits de la femme, “Les droits de statut personnel”, Report,

60 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives Répertoire notarial droit comparé, http://www.khaoula.com/ Royal address of 10 October 2003, “De Maroc : fasc. 2-1, éd. Juris-Clas- droitdemariagemar.htm, “Le coin la Moudawana au code de la seur, 1999. des femmes”, Législation Mariage famille”, F. Sarhane, in “Revue Maroc Femmes du Maroc”, November E. Westermark, “Les cérémonies du http://sisyphe.org/article.php3?id- 2003, No. 95. mariage au Maroc”, coll. Le Simoun article=786, N. Nair, “La réforme collection, Jasmin, 2003. du code civil au Maroc : progrès http://www.bladi.net/ “Le portail de pour les femmes”, 20 November la Diaspora marocaine”. 2003.

Italy

E. M., Favretto A.R., Meraviglia C, “Le V. Pocar, P. Ronfani, (a cura di), Id., “La famiglia e il diritto”, Laterza, disuguaglianze sociali” Carocci, “Forme delle famiglie, forme del Roma-Bari 2003 (new revised edi- Rome 2003. diritto : mutamenti della famiglia e tion). delle istituzioni nell’Europa occiden- tale”, F. Angeli, Milan 1991.

Netherlands

M. Wijers et L. Lap-Chew, “Trafficking Fondation Kezban, “Als ik haar was… Transact Foundation, Protection in women, Forced Labour and Handleiding bij twee woorlicht- against violence - What you can do Slavery-like Practices in Marriage, ingsfilms over huiselijk geweld”, by yourself, booklet published in Domestic labour and Prostitution”, video, 2004 (in Dutch, Turkish, collaboration with the Shakti Preliminary Report, Foundation Moroccan and Berber) Foundation with funding from Against Trafficking in Women, theMinistry of Justice and the Utrecht, October 1996. Klanckschael Foundation, Eind- hoven: (available in Turkish, Ara- bic, English, French, Dutch and Farsi. See: www.transact.nl

Portugal

Répertoire notarial droit comparé, Por- tugal, Juris-Classeur, 2000.

Norway

Thematic report, Violence against women, E/CN.4/2003/75/Add.1, paras. 1751-1764.

Sweden

Meeting of experts, “Violence in the “International Conference on Patriar- name of honour”, Stockholm, 4 chal Violence against Women”, and 5 November 2004. Focusing on Violence in the Name of Honour, Stockholm, 7 and 8 December 2004.

United Kingdom

“A choice by right”, Report of the Working Group on Forced Mar- riage, Home Office Communica- tions Directorate, June 2000.

Some references 61 Appendix 1: List of countries studied and correspondents

The table below lists the countries sent documented replies. Through personal status, laws on marriage, fil- covered by the research, with the other research, however, it was possi- iation and divorce, and relevant crim- names of the respective correspond- ble to gather information on a total of inal law. Some countries also sup- ents and an indication of the replies 28 countries. plied statistics or research findings of received. The types of document submitted Of all the Council of Europe ranged widely and included interna- relevance, if only very partially, to member states contacted, only 18 tional legal instruments in relation to forced marriage.

Country concerned Correspondents Replied Albania L. Ruci No Andorra S. Gabarre No M. Monllor Jimenez Armenia K. Hakobyan No Austria B. Gisinger-Schindler No B. Stimmer Azerbaijan M. Omarova No Belgium A. Adriaenssens Yes M. Franken Yes M. Voets No G. Pungu No Bosnia and Herzegovina S. Filipovic-Hadziabdic No S. Krunic Bulgaria A. Ivanov No Croatia H. Stimic Radin No K. Ivankovic Knezevic No Cyprus D. Raptopoulos Yes M. Varnavidou Yes Czech Republic J. Krukova No Denmark T. Lund Pedersen No Estonia, A. Hüvanen Yes Finland M. Mestiri Yes P. K i v i a h o No France E. Rude-Antoine Yes Georgia M. Botchorishvili No Germany I. Bangert and G. Wölk Yes

62 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives Country concerned Correspondents Replied Greece I. Katsaridou No Hungary L. Feher Yes Iceland no address No Ireland D. Kilgallon No M. Murphy Yes Italy V. Ferrari Yes D. Bordone Yes C. Collarile No Latvia G. Rupenheite Yes A. Gaile No Liechtenstein B. Kubik-Risch No Lithuania V. Jurseniene No, reply pending Luxembourg M. Mathekowitsch Yes I. Klein Yes I. Schroeder No Malta S. Bugeja Yes Moldova L. Pogrebnaia No Netherlands I. Steinert Yes N. Tellegen Yes D. Belserang Yes S. Aydogan Yes F. Van Houwelingen Yes Norway S. Salomon No Poland L. Goldberg No Portugal I. Romao No A. Carvalho Yes J. Vasconcelos Yes Romania D. Semenescu No Russian Federation T. Smi r no va No San Marino no address No Serbia and Montenegro J. Stankoviæ-Tatarac No Slovak Republic Z. Vranova No Slovenia V. Neubauer No Spain C. Payno De Orive Yes Sweden E. Lotta Johansson Yes M. Silvell Yes T. Mal m Yes E. Fritz Switzerland C. Devanthery Yes C. Müller Yes “The former Yugoslav Republic E. Grozdanova No of Macedonia” Tu r k ey G. Petek Salom Yes M. Kaya Yes K. Esener Yes S. Durmus No I. Atak No Ukraine T. Iz hevska No United Kingdom G. Russel No

Appendix 1: List of countries studied and correspondents 63 Appendix 2: Working documents

A comparison of laws and policies for tackling forced marriage

By Edwige Rude-Antoine, Research Officer, CNRS/CERSES with the participation for some countries of Danièle Siroux, Research Systems Officer, CNRS/CERSES

What follows is a summary of rele- A. Adriaenssens and M. Franken for I. Steinert, N. Tellegen, D. Belserang, vant legislation in 28 countries: Aus- Belgium S. Aydogan and F. Van Houwelin- tria, Belgium, Bosnia and Herze- D. Raptopoulos for Cyprus gen for the Netherlands govina, Croatia, Cyprus, the Czech A. Hüvanen for Estonia A. Carvalho and J. Vasconcelos for Republic, Denmark, Estonia, Finland, Portugal M. Mestiri for Finland France, Germany, Hungary, Ireland, C. Payno de Orive for Spain Italy, Latvia, Luxembourg, Malta, the I. Bangert and G. Wölk for Germany Netherlands, Norway, Poland, Portu- L. Feher for Hungary E. Lotta Johansson and M. Silvell for gal, Romania, the Slovak Republic, M. Murphy for Ireland Sweden Spain, Sweden, Switzerland, Turkey V. Ferrari and D. Bordone for Italy C. Devanthéry and C. Müller for Swit- and the United Kingdom. (translation supplied by F. Giraud, zerland Technical Research Officer, CNRS) This appendix, intended as a refer- G. Petek Salom and M. Kaya for ence tool, is based on documents sub- G. Rupenheite for Latvia Tu r k e y mitted (mostly in English and from M. Mathekowitsch, via I. Klein for It has been compiled with a view to only a few countries) by the following Luxembourg providing additional information people: S. Bugeja for Malta and is not exhaustive.

Austria

1. International agreements

• The United Nations Convention of ters. Austria adopted the conven- Article 27, was signed on 31 March 7 November 1962 on Consent to tion on 1 October 1969. 1982 and has been ratified. Marriage, Minimum Age for Mar- • The Convention on the Elimina- riage and Registration of Mar- tion of All Forms of Discrimination • The 1989 United Nations Conven- riages, which came into force on 9 against Women, which came into tion on the Rights of the Child was December 1964 by exchange of let- force on 3 September 1981 in signed on 6 August 1992 and has accordance with the provisions of been ratified.

64 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives 2. Provisions in private international law

3. Provisions in civil law

4. Protection measures

The Protection against Family Vio- Orders are served by bailiffs but the be confirmed by a higher authority lence Act of 30 December 1996, police may be asked to intervene in within 48 hours. The police may con- which came into force on 1 May 1997 the most serious cases. fiscate all the perpetrator’s keys to and was amended in 1999, introduced The same Act introduced amend- the marital home. They will check new provisions to the Civil Code and ments to the Police Act. Because it is within three days that the person sub- the Code of Civil Procedure enabling not possible to obtain a court order ject to the barring order has complied courts to issue protection orders in immediately after an act of violence with its terms. If he has not done so response to applications by victims of has been committed, the police are he will be liable to a fine, and physical violence. legally empowered, where a victim’s repeated breaches of an order may By means of such an order the health or liberty is in danger, to bar result in imprisonment. A barring civil court can require an aggressor to the perpetrator from the victim’s order is valid for only 10 days but will quit the marital home, even if it is he home with immediate effect (Article who owns it. The court can also bar 38a). Barring orders cover not only be extended automatically by a fur- perpetrators of violence from specific the home itself but also its immediate ther 10 days if the victim applies to places or buildings (a victim’s work- surroundings, and they may be the civil court for a protection order. place, for example) and instruct them extended if necessary to a wider area When the police take action under to have no contact with their victims. including, for example, places fre- Article 38a they have a duty to inform Such orders may not be made for quented by the victim. When an the victim of the remedies available periods of more than three months. order is issued by the police it must under the Code of Civil Procedure.

5. Provisions in criminal law

5.1. Classification of forced for suspecting that the law has been Under what is known as “redirec- marriage broken can report the presumed per- tion”, a procedure introduced on 1 Forced marriage is not an offence petrator of the offence to the police. January 2000, the public prosecution in its own right. In the case of rape within marriage, a service may drop a prosecution if, Rape within marriage has, how- prosecution can be initiated only if after a probationary period of ever, been a punishable offence since the victim makes a complaint, unless between one and two years, it no 1989. Under Article 203 of the Crimi- the rape has resulted in serious inju- longer seems appropriate. During the nal Code, any person who rapes his ries. probationary period the perpetrator spouse is liable to prosecution. When a victim avails herself of of the violence will undergo therapy. protection under the Police Act and 5.2. Prosecutions in cases of forced the police have ascertained that an marriage offence has taken place, they are As a general rule, any member of required to report it to the public the public who has sufficient grounds prosecution service.

6. Provisions of the law on foreign nationals

7. Policies and approaches

The police are required to give vic- Ministry of the Interior, these offices draw up measures to prevent harmful tims of violence an information docu- have the task of ensuring that meas- practices, especially forced marriages ment setting out the rights and duties ures to deal with perpetrators of and female genital mutilation. These of all parties concerned, and also to domestic violence are properly include. information campaigns tar- notify the local “intervention office” observed. geted to teachers, as well as legal which will provide free legal assist- In December 1998, the Ministry amendments where necessary. ance. for Family Affairs set up a 24-hour tel- During the Austrian EU Presidency, There is currently an intervention ephone help line. “Harmful traditional practices” will office in each of the nine Austrian On the initiative of the Minister for be a topical issue (Conference of the federal states. Jointly funded by the Health and Women, six Ministries are Ministers for Gender Equality, Brus- Ministry for Family Affairs and the currently closely collaborating to sels, 25 January 2006).

Appendix 2: Working documents : Austria 65 Belgium

1. International agreements • The Convention on the Elimina- • The 1989 United Nations Conven- Parental Responsibility and Meas- tion of All Forms of Discrimination tion on the Rights of the Child was ures for the Protection of Children, against Women, which came into signed on 16 December 1991 and which entered into force on 1st has been ratified. January 2002, amends the Con- force on 3 September 1981 in • The Convention of 19 October vention of 5 October 1961 concern- accordance with the provisions of 1996 on Jurisdiction, Applicable ing the Powers of Authorities and Article 27, was signed on 10 July Law, Recognition, Enforcement the Law Applicable in respect of 1985 and has been ratified. and Cooperation in respect of the Protection of Minors.

2. Provisions in private international law The Code of Private International Belgium for at least twelve months at That law shall determine, in par- Law (Implementation) Act [Loi por- the time of the application; or ticular, whether and in what form: tant le Code de droit international privé] 4) the spouses are of Belgian 1) declarations and public notices of 16 July 2004,1 while containing no nationality when the application is prior to the marriage are required in specific provisions on forced mar- made.” (Article 42) that state; riage, nonetheless has an impact on “The marriage may be celebrated 2) the marriage contract is to be the problem. It lays down the respon- in Belgium if one of the future drawn up and transcribed in that sibilities of the Belgian authorities, spouses is of Belgian nationality, is state; determines the national legislation to domiciled in Belgium or has been 3) marriage celebrated in the pres- be applied and sets out the conditions habitually resident in Belgium for ence of a religious authority has legal on which a ruling by a foreign court, more than three months at the time effect; or an instrument executed by a of its celebration.” (Article 44) 4) marriage may take place by notary or public authority in a foreign The right to marry is not depend- proxy.” (Article 47) country, may be given effect in Bel- ent on the residence status of the par- In accordance with the circular gium. ties concerned, which means that the issued on 23 September 2004 on The Act states: “Except where this civil authority cannot refuse to draw aspects of the Code of Private Inter- Act provides otherwise, Belgian up marriage documents or to cele- national Law (Implementation) Act courts shall be competent to hear any brate the marriage solely on the of 16 July 2004 concerning personal application concerning a person’s ground that a foreign national is ille- status,2 the Act came into force on 1 status and capacity in cases other gally resident in the Kingdom. October 2004. The circular states that than those covered by the general The marriage promise is subject: “habitual residence” means the place provisions of this Act if: 1) “to the law of the state on whose where a physical person is princi- territory each of the future spouses is 1) the person is habitually resident pally resident even in the absence of habitually resident at the time when in Belgium when the application is any registration and irrespective of the promise is made; made or permission in respect of temporary 2) if the spouses are not habitually or permanent residence, and that, in 2) the person is of Belgian nation- resident on the territory of the same determining habitual residence, par- ality when the application is made.” state, to the law of the state of which ticular account is to be taken of per- (Article 32). the two spouses are nationals at the sonal or professional circumstances “Belgian courts shall be competent time when the promise is made; offering evidence of sustainable ties to hear any application concerning 3) in other cases, to Belgian law”. with the place in question, or the marriage or its effects […], in cases (Article 45). intention of forming such ties. other than those covered by the gen- The substantive conditions for This concept of “habitual resi- eral provisions of the Act if: marriage are governed by Article 46 dence” is based on a definition set out 1) in the case of a joint application and the formal conditions by Article by the Council of Europe in Resolu- one of the spouses is habitually resi- 47. tion (72) 1 of 18 January 1972 on the dent in Belgium when the application “Except as otherwise provided in standardisation of the legal concepts is made; Article 47, the requirements for valid- of “domicile” and “residence”. 2) the spouses’ last shared habitual ity of the marriage shall be, for each The Belgian Code uses this crite- place of residence before the applica- of the spouses, as laid down in the rion in Articles 44 (on Belgian author- tion was in Belgium; law of the state of which he or she is ities’ competence to celebrate a mar- a national when the marriage is cele- 3) the spouse making the applica- riage) and 46 (on the law applicable brated.” (Article 46) tion has been habitually resident in to constitution of a marriage). In all “The formalities concerning the other cases it must be determined celebration of the marriage shall be 1. Act on Code of Private International Law, 16 July 2004, S. 57344, Moniteur belge, 27 July as laid down in the law of the state on 2. Moniteur belge, 28 September 2004, 174th 2004, 174th year. whose territory it is celebrated. year, p. 69594.

66 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives whether the person is habitually resi- ruled out – although there is no clear- Morocco. Such a marriage will be rec- dent in a given state, and it can then cut definition of such marriages. ognised under both Belgian and be decided which country’s law is Many countries will recognise a Moroccan law provided that the pro- applicable or if the Belgian courts and marriage concluded in the presence visions of Belgian law with regard to Belgian civil authorities have interna- of a Belgian civil authority even marriages contracted abroad have tional jurisdiction. where one of their own nationals is been observed. According to the September 2004 involved. The partners in such cases Recognition in Belgium of mar- circular, the purpose of Article 44 of are thus married in the eyes of both riages concluded abroad and involv- the Code of Private International Law Belgian law and that of the foreign ing young people depends on (Implementation) Act is twofold. It state. whether the young person concerned clearly fixes the conditions on which There are, however, a number of has both Belgian nationality and the Belgian authorities have interna- states – mainly Islamic countries – nationality of a country that permits tional jurisdiction, and – by laying that do not recognise marriage con- marriage under the age of 18 years. down a requirement of at least three cluded before a Belgian civil author- Only a youth court can authorise Bel- months’ habitual residence – it aims ity, even if all the other requirements gians to marry under the age of 18.4 to counter “marriage tourism”, partic- of their own law were met when the A decision duly delivered by a for- ularly in cases that come under Arti- marriage was celebrated. Not all eign court has effect in Belgium, irre- cle 46(2), on marriage between per- Islamic countries fall into this cate- spective of any enforcement authori- sons of the same sex. gory. sation, except where it is used to Persons who claim they are habitu- One of the countries that will not press a property claim or exert coer- ally resident will thus be required to recognise civil marriage concluded in cion. prove it by whatever legally recog- Belgium is Morocco. If a Moroccan Recognition of instruments drawn nised evidence. In cases of doubt the decides to marry in the presence of a up by notaries or public authorities in decision will rest with the civil Belgian civil authority, he or she foreign countries is subject to Article authority. Article 44 states that the must also be married a second time 27 (“Such an instrument shall be rec- competent civil authority is the one either at the consulate or in Morocco ognised by all authorities in Belgium responsible for the person’s habitual for the marriage to be valid there. It without recourse to any procedure if place of residence within the mean- should be noted that an agreement its validity is established in the ing of Article 63 of the Civil Code. exists between Morocco and Belgium manner required by the law applica- concerning mutual recognition of ble under this Act, particular account The same circular points out that civil marriage in the two countries being taken of the provisions of Arti- Article 46 of the Code of Private and the procedure to be followed in cles 18 and 21 concerning, respec- International Law (Implementation) such cases. The agreement has not, tively, fraudulent evasion of the law, Act merely restates the principle tra- however, been ratified and nor has it and public policy”). This provision ditionally applied in Belgium (“The been published in the Moniteur belge covers many types of instrument that conditions of validity of the marriage [official gazette]. It is merely are presented to civil authorities shall be subject, for each spouse, to observed in practice. (including marriage certificates and the law of the state of which he or she In principle, intending spouses recognitory acts). is a national when the marriage is cel- who are both of Moroccan nationality ebrated”). A number of conditions have to be thus have a choice. They can be mar- met in order for such an act to be rec- Article 47 lays down that the tradi- ried in the presence of a Belgian civil ognised: tional rule is to apply whereby the authority and their marriage will thus • Its validity must be established as formalities of the marriage are sub- be valid only under Belgian law – required by the law applicable ject to the law of the state on whose although they have the option of con- under the Act – thus entailing territory it is celebrated. cluding a subsequent second mar- application of the choice-of-law With regard to marital capacity, riage either at the Moroccan consu- rules set out in the Code of Private the Belgian Equal Opportunities and late in Belgium or in Morocco. They International Law; Anti-Racism Centre states in its book- can, however, go direct to the consu- let “The family: its international legal late without the registry marriage. In 4. Brussels, 12 July 1992, Revue de droit dimensions”3 that it is possible for a either case their marriage will be rec- européen, 1992, 315, note: A young woman foreign national to marry in Belgium of Belgian and Moroccan nationality, under ognised in both Belgium and Morocco the age of 18, married a Moroccan in at an age below that of marital capac- unless it is in breach of public policy, Morocco. The marriage was not recognised ity under Belgian law if his her own for example on . in Belgium. The woman then attempted to national law specifies a marriageable conclude a second marriage in Belgium When only one of the spouses has with the same man. Because she was of Bel- age under 18 years. There is, how- Moroccan nationality, the Belgian gian nationality it was necessary for her to ever, a consensus among civil author- civil authority is competent to cele- obtain an exemption from the official ban ities that “child marriages” should be on marriage under 18. Proceedings were brate the marriage in accordance therefore initiated to that end, the woman with Belgian law. The spouses may arguing that if the exemption was refused 3. Centre pour l’égalité des chances et la lutte subsequently go to the consulate for a she would have to accompany her husband contre le racisme, La famille dans ses to Morocco and would lose the benefit of dimensions juridiques internationales, second ceremony. Alternatively, they studies she had begun in Belgium. She was booklet (as of January 2003), 110 pp. may contract the marriage in granted the exemption.

Appendix 2: Working documents : Belgium 67 • The Act stipulates that particular • Article 24 (specifying the docu- legal authentication as apply to account must be taken in this con- mentary evidence required for rec- official copies of foreign judg- nection of Articles 18 and 21; ognition of a foreign judgment) ments. • The instrument must meet the applies. In the case of official or Anyone wishing to contest a civil conditions of authenticity laid notarial instruments, an official authority’s refusal to recognise an down in the law under which it copy is normally required. It is official instrument may appeal to the was drawn up; subject to the same conditions of regional court.

3. Provisions in civil law

The Belgian Equal Opportunities 3.3. Celebration of marriage Mental impairment is a ground for and Anti-Racism Centre booklet “The annulment of marriage. It is judg- family: its international legal dimen- The principle for the celebration ments in the rare cases where one sions”5 describes the formal and sub- of marriage is that the parties should partner was mentally ill at the time of stantive requirements for marriage, appear in person, publicly, before the contracting the marriage that estab- as summarised below. civil authority in the presence of two lished the theory of non-existence of witnesses. If the civil authority finds marriage – a union contracted by a 3.1. Marital capacity that the conditions for marriage have person of unsound mind is not a mar- Under Article 388 of the Belgian not been met, he or she may, if it is riage even in appearance. suspected that there is an impedi- Civil Code, a person is a minor until Violence is another ground for ment to the marriage, postpone the he or she reaches the age of 18 years. annulment. Deferential fear of one’s ceremony for two months in order to The age of majority was reduced father and mother is not in itself carry out an inquiry and refer the from 21 to 18 by an Act passed on 19 regarded as justifying annulment. findings to the public prosecution January 1990. Proven simulation has been estab- service; if it certain that there is an “In order to marry in Belgium one lished in case law as a ground of abso- impediment to the marriage, the civil must have reached the age of 18 years lute nullity of the apparent marriage. authority may refuse to celebrate it. (Article 144 of the Belgian Civil For simulation to be recognised, it The civil authority may not draw up Code). If a Belgian wishes to marry must be the case that the parties the marriage certificate until the before the age of 18, he [or she] must jointly feigned the exchange of con- exchange of consent has been follow a special procedure in the sent without in any way intending it recorded. youth court. The minimum age to have effect. requirement may be reduced if there In order for a Belgian civil author- Certain persons are entitled to are ‘serious reasons’ for doing so. In ity to celebrate a marriage, at least object to the celebration of a mar- principle, future spouses aged under one of the future spouses must have riage, namely an existing spouse of 18 cannot contract marriage without his or her place of residence or abode one of the intending marriage part- the consent of their father and in the municipality of that civil ners, the father or mother or, in their mother, which has to be recorded by authority. If the future spouses live in absence, the grandfather or grand- the youth court. If parents refuse to two different municipalities, they mother of either partner or, should give their consent, the court may may choose in which they wish to they have no relatives in the ascend- nonetheless authorise the marriage if marry. Certain formalities must be ing line, their brothers or sisters, it considers the refusal to be unrea- completed before the marriage is cel- uncles, aunts or adult first cousins, sonable. The terms ‘serious reasons’ ebrated: in particular, a declaration of the sole grounds for such an objection and ‘unreasonable refusal’ are merely marriage must be made in the place being an intending spouse’s mental general concepts. It is the court’s task of residence or abode of one of the illness or mental disability. A guard- to assess the particular circumstances two future spouses. Under Article ian – provided he or she is acting with of each case.”6 The court may author- 165(1) of the Civil Code the marriage the authorisation of the family coun- ise the marriage of a minor if both may not be celebrated less than 14 cil – is also entitled to object. parents fail to appear or if neither is days after the declaration is drawn If an objection is raised the civil capable of indicating a view. up. The interval gives the civil authority cannot celebrate the mar- 3.2. Consent authority time to assemble necessary riage until the objection has been set information. The marriage must take Article 146 stipulates that there aside by the regional court. It is up to place within six months from expiry cannot be any marriage without con- the intending spouses to apply to the of the 14-day interval. sent. The theory of vitiated consent is court for that purpose. If a marriage is celebrated notwith- accepted with regard to marriage, 3.4. Annulment of marriage albeit more restrictively than with standing the opposition of a person other types of contract. Consistent case law – which is the entitled to object to it, it will not nec- subject of legal commentary – has essarily be void. The deciding factor 5. Centre pour l’égalité des chances et la lutte established the principle that a mar- is the reason for the objection. contre le racisme, La famille dans ses riage contracted by a person who Annulment is obtained by means dimensions juridiques internationales, bro- chure (as of 1 January 2003), 110 pp. lacks marital capacity is void (Article of legal proceedings. An action for 6. Ibid., p. 30. 502 of the Belgian Civil Code). annulment is in principle indefeasi-

68 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives ble. Proceedings are initiated through marriage with regard to Belgian improving one’s situation with regard an application by one of the two nationality and permission to reside to residency may very well constitute spouses or by the public prosecution in the country. He or she will also a reason for wishing to get married, service. It is then necessary to prove retain inheritance rights as a surviv- provided that it is not the sole motiva- that the requirements for marriage ing spouse and will be entitled to sur- tion.” were not met when the marriage was vivor’s pension if the annulment is concluded (Article 180 of the Civil pronounced after the death of the “Obviously the determining factor Code). Marriages of convenience are other spouse. In cases of putative here is the initial intent to cohabit. liable to annulment. The court deci- marriage, entitlement to support and Should it turn out that the partners sion granting annulment is a declara- to the sharing of household expenses are incompatible and that the mar- tory ruling. is also retained, although only up to riage has not been consummated, The court may, however, rule, on the date of the annulment.”7 that in itself is not sufficient reason an application from one or both of the “The law does not require that for annulment. If the two partners spouses, that the marriage was “puta- there should be love between the were initially motivated by sound tive”. future spouses and their cohabitation intentions but, because of particular In order to obtain such a ruling, need not necessarily be based on circumstances, their relationship has “the person concerned must show love. There is, in principle, no legal degenerated to crisis point, an action that he or she acted in good faith, in argument against a marriage based for annulment is not the most suita- other words with the intention of on expediency or one in which it is ble means of ending the marriage. In leading a genuine married life and in presumed that love will develop later. such cases, if dissolution of the mar- the belief that the marriage was con- It has been established in both theory riage is desired, it should be achieved cluded lawfully. A spouse (or and case law that the intention of through divorce proceedings.”8 spouses) who acted in good faith will retain those rights acquired through 7. Ibid., p. 47. 8. Ibid., p. 34.

4. Protection measures

Under Article 371(2) of the Belgian Child welfare measures may be member or with a trustworthy third Civil Code, “the father and mother used as a means of preventing forced party, a general or specialised health shall have authority to protect the marriages. Thus, under Article 375 of or education service or establish- child’s safety, health and morality. In the Civil Code: “If the health, safety ment, or the county child-welfare this regard they shall have rights of or morality of a minor […] is at risk or service.” if the conditions of his [or her] custody, supervision and care”. Arti- In such cases, under Article upbringing and education are seri- cle 371(3) adds: “The child may not 375(4): “The court may instruct ously compromised, a court may – on leave the family home without the either a qualified person, or a super- application by the child’s father and father’s and mother’s permission and visory agency or non-residential edu- mother jointly, by one of them, by may not be taken from it except in cation or rehabilitation agency to the person or service responsible for cases of necessity as determined by assist and advise the person or serv- the child, or by a guardian, the child law.” “No renunciation or transfer of ice entrusted with the care of the himself [or herself], or the public parental authority shall have effect child, as well as the child’s family, prosecution service – instruct that unless it is pursuant to a court ruling and to monitor the child’s develop- welfare measures should be taken. ment.” […]” (Article 376). If, despite these The court may, exceptionally, act on provisions, parents planned to its own initiative.” Where parental authority is with- remove a minor from the family In addition, Article 375(3) reads: drawn from a child’s parents, Article home, they would be liable to have “If it is necessary to remove the child 380 of the Civil Code requires the their custody of the child, or indeed from his or her current surroundings, court to appoint a third person who their parental authority, partly or the court may decide to place him or will take temporary responsibility for entirely withdrawn. (See Article 378 her with the parent who was not pre- the child (and who may then apply of the Civil Code with regard to cases viously exercising parental authority for guardianship) or place the child of criminal conviction and Article or with whom the child was not habit- with the county child-welfare serv- 378(1) with regard to other cases). ually resident, with another family ice.”

5. Provisions in criminal law

5.1. Classification of forced marriage 5.2. Prosecutions in cases of forced Forced marriage is not recognised marriage as a specific offence in Belgium.

Appendix 2: Working documents : Belgium 69 6. Provisions of the law on foreign nationals

Provisions on marriage by foreign- of practice, she contends that if the not justify a civil authority in ers are included in the Foreign civil authority uses the provisions of refusing to draw up a declaration Nationals (Residence) Act (Loi sur le the Act properly, it can be a means of of marriage, the purpose of the séjour des étrangers) of 15 December preventing forced marriages. If not, it declaration being to confirm that 1980, which secures the principle of will merely be repressive. On the the couple meet the formal family reunification on condition that basis of a study of 250 court rulings it requirements and that the neces- spouses are married and cohabiting. is clear that some offices of the public sary documents have been submit- An issue had arisen as to the length of prosecution service will act on the the cohabitation period of which basis of a civil authority’s refusal to ted. In such circumstances, municipal authorities might require issue a declaration, while others will however, the civil authority may proof, and the Act laid down a period not. refuse to celebrate the marriage, or of one year and three months. To be may postpone it.”12 granted family reunification, both The circular of 17 December 1999 partners must also be aged over 18 concerning the Act of 4 May 1999, • “It must be demonstrated to the years, with the possibility of exemp- amending certain provisions in rela- court that when the marriage was tion for humanitarian reasons. tion to marriage, emphasises that the concluded there was no genuine right to marry is enshrined in Article intent to embark on married life. With regard to unlawful residence, 12 of the European Convention for To support that contention a body the Protection of Human Rights and certain authorities may require that a of evidence must be assembled partner return to his or her country of Fundamental Freedoms (approved by which, taken together, gives origin in order to obtain a visa. That an Act of Parliament of 13 May 1955, grounds for legal suspicion and can be expensive, and a decision of 25 see Moniteur belge of 19 August 1955) amounts to a prima facie case. July 2002 found against Belgium in and in Article 23 of the International this connection. As a result a govern- Covenant on Civil and Political Admissions and witness state- 13 ment circular of 17 December 1999 Rights. “This right cannot be made ments can also be used, taking concerning the Act of 4 May 1999 contingent upon the residence situa- account of the particular practical amended certain provisions in rela- tion of the parties concerned, and circumstances of each case. tion to marriage (see below). consequently the civil authority may Absence of a sexual relationship not refuse to draw up a declaration or between the spouses may be taken Under Article 19, persons return- to celebrate a marriage for the sole into account but is not in itself reason that a foreign national is ille- ing to their country of origin are proof positive.14 The spouses must required to renew their residence gally resident in the Kingdom.” be given the benefit of any permits. This enables anyone who doubt.”15 fears being held against their will to Proving that a marriage is one of signal the risk of being kept in the convenience depends on the follow- The Belgian position is based on country of origin for longer than ing steps. the European Directive of 22 Septem- intended. • “If a civil authority refuses to cele- ber 2003 on the right to family reuni- The Marriages of Convenience Act brate a marriage on the ground fication. [Loi sur les mariages de complaisance] that it is one of convenience, the of 4 May 19999 makes civil authorities intending spouses may apply to a On 13 July 2004 the Belgian Cham- responsible for drawing up a mar- court for an order requiring the ber of Representatives brought for- riage declaration and notifying the civil authority to celebrate [it]. In ward a draft resolution (Doc 51 1283/ public prosecution service in cases of practice, a summary application 001) on combating marriages of con- doubt as to the spouses’ consent or procedure is common in such venience. It called on the federal gov- the purpose of the marriage (that is, cases but it is also possible to have ernment to support a new law aimed a full trial of the issues.”11 as to intention of forming a lasting at penalising those who conclude union). A court ruling may then be marriages of convenience; creating a sought if the civil authority refuses to • “The suspicion that a marriage database about such marriages; ena- conduct the marriage. may be one of convenience does bling municipalities to tackle the Marie-Claire Foblets10 points out 10. See M-C. Foblets “À la lumière du nouveau code de droit marocain et des directives 11. Centre pour l’égalité des chances et la lutte that this legislation has been criti- européennes”, contribution to a colloquy contre le racisme, La famille dans ses cised as a violation of freedom to organised by the Belgian Ministry of the dimensions juridiques internationales, bro- marry. Arguing that law develops out French Community, Equal Opportunities chure (as of 1 January 2003), p. 34. Department, General Secretariat Research 12. Ibid., p. 34. Office, and entitled “Mariage choisi, mar- 13. See Instruction of 1 July 1994, Moniteur 9. Mariages de complaisance, Act of 4 May iage subi, quels enjeux pour les jeunes”, belge, 7 July 1994, and Instruction of 4 May 1999, Moniteur belge, 1 July 1999. Brussels, 21 January 2005. 1999, Moniteur belge, 1 July 1999.

70 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives practice effectively by laying down sider applications; setting up an offi- clear instructions and supplying cial contact point where male and 14. Liège, 17 March 1992, J.L. Moniteur belge, 1992, 955. After engagement, two Moroc- municipal registry staff with relevant female victims of marriages of con- cans were married before a Belgian registrar information; creating within district venience can discuss their problems; and subsequently celebrated the event. The offices of the Public Prosecution Serv- and taking the initiative to put mar- woman later applied to the regional court for annulment of the marriage on the ice the post of legal support officer riages of convenience on the agenda ground that it had been one of convenience. with responsibility for coordinating of the Council of Ministers of the Her application was granted. The judgment the work of different judicial districts European Union. was reversed on appeal, however, the Court of Appeal noting inter alia that the spouses and keeping them informed, and for had intended to furnish an apartment in ensuring that each office not only which to live and not to hold their marriage monitors the local administrative celebration until the following year, accord- ing to Moroccan custom; that the woman authorities but also assists them as had said she recognised there was a consid- necessary; reviewing the system of erable difference in character between her- residence permits, notably by extend- self and her spouse; that the wife’s family had envisaged her obtaining a divorce by ing the waiting period for definitive mutual consent but that the husband had authorisation of residence in order to not been prepared to divorce; and that the give the authorities more time to con- spouses had admitted they had never had sexual relations. On the basis of these cir- cumstances, the court took the view that at 15. Centre pour l’égalité des chances et la lutte the time of the marriage the couple had contre le racisme, La famille dans ses indeed intended to cohabit and that it was dimensions juridiques internationales, bro- not therefore a marriage of convenience. chure (as of 1 January 2003), p. 34.

7. Policies and approaches The Brussels-based “Child Focus” etc.). reception and welfare services; organisation is a European centre for As part of its activities the centre is teaching of literacy skills and missing and sexually exploited chil- concerned with the social and French as a foreign language; a dren. It has been constituted since 31 legal circumstances of women of “school of duties”; activities aimed March 1998 as a private agency offi- immigrant or foreign origin. It at women and girls and measures cially recognised as serving the gives opinions on situations of to raise public awareness of public interest. Its task is to provide forced marriage to the relevant women’s issues. The association active support at both national and bodies and advises young women targets all women, but particularly international levels for inquiries into on preventive and/or reparatory those from immigrant back- the disappearance, kidnapping or measures. grounds. sexual exploitation of children, and to • The Gender Equality Institute17 It runs activities to prevent and perform a preventive role. (established by a law of 16 Decem- combat forced marriage: Several organisations have special- ber 2002) is authorised to: – counselling and follow-up services ised in working with victims of forced – assist, within the limits of its objec- for persons with marital problems; marriage. tive, anyone seeking advice on – legal training in the Mudawana, or • “Istappen.be”, represented by Riet their rights and obligations. This family code; Van Gool, supports victims of both assistance allows beneficiaries to – distribution of publications on forced marriages and marriages of obtain information and counsel- marriage in schools and voluntary convenience; ling on means of asserting their sector associations; • The Equal Opportunities and Anti- rights (Article 4, paragraph 5); The association is recognised as racism Centre, whose contact – take legal action in lawsuits that being authoritative in matters of person for questions of personal may arise under criminal and marriage. status is Fatima Hanine,16 is a fed- other laws with the specific aim of • The GAMS (Groupement d’hom- eral government agency estab- guaranteeing gender equality mes et de femmes pour l’Abolition lished by a law of 13 February (Article 4, paragraph 6). des Mutilations Sexuelles 1993. It was originally set up pri- This institute accordingly deals féminines) (Movement of men marily in order to combat racial with cases of forced marriage. and women for the Abolition of discrimination (based on ethnic • “La Voix des Femmes”18 is a recog- Female Genital Mutilation)19 is an origin, nationality, skin colour, nised further training association, association of African and Euro- etc.). Since a law of 25 February having non-profit status, which pean men and women competent 2003 its field of action has been pursues a range of activities: in the fields of health, welfare, extended to non-racial discrimina- education, communication and tion (on grounds of sexual orienta- 17. rue Ernest Blerot 1, 1070 Brussels, tel.: 02/ languages, with a long track record tion, religious beliefs, disability, 233.49.47 (French-speakers) and 02/ in the sphere of prevention. Apart 233.40.15 (Dutch-speakers), fax: 02/ 233.40.32, [email protected] 16. [email protected], rue Royale 138, 18. http://users.skynet.be/lavoixdesfemmes/ 19. [email protected], www.gams.be. rue de Brial- 1000 Brussels, tel.: 02/212.30.00, fax: 02/ accueil.htm, 20, rue de l’alliance, 1210 Brus- mont 11, 1210 Brussels, tel./fax: 02/ 212.30.30 sels, tel.: 02/218.77.87 219.43.40

Appendix 2: Working documents : Belgium 71 from its important work to combat ing situations of family violence in – to form the basis of a network female genital mutilation, the their work. It provides: which will be opened up to other association carries on the follow- –forums; players and should allow the ing activities aimed at countering – counselling services; development of other forms of co- the practice of forced marriage: – opportunities to meet other profes- operation, not linked to the site, – awareness-raising targeting the sionals; between partners or with new communities concerned through – information on family violence partners; ad hoc events. For instance, in issues and on services and – sharing of tools and documenta- 2004 the GAMS held an open day resources available to profession- tion with a view to improving the against forced marriage on its als. availability of existing information premises, where it showed a video The association’s services are free (e.g. research results, surveys, on the subject entitled “Les and available to professionals on seminar proceedings, etc.) for both guignols d’Abidjan” (“The clowns appointment. Appointments take agencies and members of the pub- from Abidjan”). This was a great place either at the professional’s lic; success and involved many partic- workplace or in the offices of the – identifying any needs for informa- ipants. municipal authority; tion, tools or services and training, – the association’s documentation • The school mediation service of more in tune with requirements; 22 centre has a stock of documents, the municipality of Saint-Gilles • “Magenta”24 is a non-profit associa- books and films for use by the caters for young people with edu- tion which deals with all issues public (students, teachers, etc.); cational problems but also with linked to forced marriage and runs – the GAMS participates in various questions about what they want prevention activities concerning colloquies and conferences on the out of life; homophobia, sexism and heter- subject; • Professor S. Alexander (Reproduc- onormativity; – it also provides assistance and tive Health and Perinatal Epidemi- • “Info-Veuvage”25 is a recognised advice: individuals may apply for ology Unit) and Professor D. Piette further training association spe- assistance with administrative (Health Education Promotion cialising in defence of the rights of matters and psychological coun- Unit) of the Brussels Free Univer- surviving spouses and children. A selling, dispensed in co-operation sity and their teams have set up a growing number of its contacts are with another association “Centre web-site on emotional, sexual and with people who have made life 23 Exile”. The association pursues reproductive matters. choices without being aware of cases until they have been brought The site allows consultation, co- their rights. Its aim is to raise to a successful conclusion (it has operation, coaching and sharing of young people’s awareness of their worked on some thirty cases so information regarding questions of rights, so as to enable them to far); health, well-being and rights in the choose their direction in life; spheres of reproduction and sexu- – the GAMS intends to produce a • The centre for migrant women ality. The web-site address is comic strip to raise awareness of and girls “Steunpunjt Allochtone http://www.ulb.ac.be/esp/sphere- forced marriage among young peo- Meisjes en Wrouwen”/SAMV26 asr/ ple, similar to the one it produced launched a new project in 2005. It is aimed at both professionals on female genital mutilation, The aim is to establish a dialogue and the general public. which was launched in May 2005. with migrant communities on sen- Its objectives are: • “Aimer Jeunes”20 is a non-profit sitive issues such as marriage, – to offer a discussion forum and association which runs a family- mixed-race relations, virginity, meeting space so that people planning centre specifically for forced marriage and divorce. In working on these themes can pool young people. Its objectives are to recent years the centre’s activities ideas and experience; provide information and educa- focused on traditions and customs. tion on emotional and sexual mat- A national seminar was held on 21. Sophie Bruyr, Psychologist, Namur Munici- ters. It pursues an overall pal Authority, Social Affairs Department these themes, which could be preventive strategy, with empha- (1st floor), Esplanade de l’Hôtel de Ville 1 - repeated in the regions of Flan- sis on personal development, 5000 NAMUR, tel.: 081/24.60.38, fax: 081/ ders. A video may also be brought 24.63.99 autonomy, responsibility and well- 22. Mission locale de Saint-Gilles, chaussée de out. being in the emotional, family and Waterloo 255, 1060 Brussels, tel.: 02 542 63 • The Payoke reception centre helps social fields. 45 and 02 542 63 26 victims of human trafficking and 23. Katty Renard, Université Libre de Bruxelles, It offers medical consultations and Ecole de Santé Publique, Promotion Educa- psychological, social and legal tion Santé (ULB-PROMES), Route de Lennik 24. Health and health promotion, diversity in counselling. 808, CP596, 1070 Brussels, tel.: 02/555.40.81, sexual orientation and gender issues, Rosine fax: 02/555.40.49, Email: krenard@ Horincq, 83 Avenue de Cortenbergh, 1000 21 • ”D’une Rive à l’Autre” is a non- ulb.ac.be. Web-sites: ULB-PROMES http:// Brussels, tel/fax: 02/524.42.16, mobile: profit association offering assist- www.ulb.ac.be/esp/promes; L’Ecole de 0478/40.43.14, [email protected]. ance to professionals encounter- santé publique: http://www.sante- 25. Rue de la Prévoyance 58, 1000 Brussels, tel.: publique.net; Brussels Free University 02/513.17.01, fax: 02/241.28.29 (ULB): http://www.ulb.ac.be; Emotional, 26. Contact : Judith Perneel, Rue Royale 136, 20. Avenue du Cor de Chasse, 1170 Brussels, sexual and reproductive health project 1000 Brussels, tel.: 02/209 34 69, fax: 02/209 02/511.32.20 http://www.ulb.ac.be/esp/sphere-asr/. 34 65, [email protected], www.samv.be

72 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives arranged marriages; it is run by an its validity whether it took place Ministries responsible for social wel- association chaired by Patsy before a Belgian civil authority, in a fare. Sörensen, a former European Par- consulate or in a foreign country. If a liament member and former Ant- forced marriage is planned but has The Sub-Committee on Violence werp alderman in charge of the not yet been concluded it may be pre- against Women of the Council of city’s civil register; vented. Europe Parliamentary Assembly • The City of Antwerp has set up a The police can assist victims of Committee for Equal Opportunities unit to deal with marriages of con- forced marriage by giving them between Women and Men held a venience; it is run by Franck Bey- addresses of law centres or victim hearing on forced marriages and ens.; support services. child marriages in Antwerp on 18 • The “Meldpunt gedwongen huwel- “Maisons de justice” [law centres], October 2004. ijken” service, also in Antwerp, run by the regional courts, can pro- offers support and advice about vide legal information to victims of Some school teachers run activi- the steps to take in cases of forced forced marriage and help them to ties to inform pupils about various marriage. apply to the court for an annulment. matters of concern to them including A person forced into marriage may There are also victim support serv- forced marriage (mention can be report the fact to the public prosecu- ices which can offer emotional and made of the action taken by Danielle tion service. If a marriage has been psychological assistance to victims of Mironczyk, who teaches in a second- concluded under duress the person forced marriage. Victim support falls ary school applying positive discrimi- concerned may subsequently contest within the remit of the Community nation).

Bosnia and Herzegovina

1. International agreements

• The United Nations Convention of and Herzegovina took over the Article 27, was signed on 1 Sep- 7 November 1962 on Consent to convention on 1 September 1993. tember 1993 and has been ratified. Marriage, Minimum Age for Mar- •The Convention on the Elimina- riage and Registration of Marriages tion of All Forms of Discrimination • The 1989 United Nations Conven- came into force on 9 December against Women, which came into tion on the Rights of the Child was 1964 by exchange of letters. Bosnia force on 3 September 1981 in signed on 1 September 1993 and accordance with the provisions of has been ratified.

2. Provisions in private international law

3. Provisions in civil law

Family relations in Bosnia and For the purpose of the above-men- 3.2. Consent Herzegovina are determined by civil tioned Family law, the family is Marriage is based on the free will law. There is no Family Law at state defined as the “community life of par- of the parties involved, with equality level of Bosnia and Herzegovina, but ents and children and other relatives”. and mutual respect between the entity laws of the Federation of spouses. Bosnia and Herzegovina and Repub- 3.1. Marital capacity 3.3. Celebration of marriage lika Srpska. The new Family Law was adopted in 2005 in the Federation of Only civil marriage is recognised Bosnia and Herzegovina. The Family In order to marry, a person must in law. Marriage must be celebrated Law of Republika Srpska came into either have reached his or her major- in the presence of the registar. A reli- gious marriage may, however, be cel- force in 2002. This law deals with the ity or have the permission of a court. ebrated following the civil ceremony. issue of marriage, family relations, The age of majority is 18 for both adoption, and guardianship. sexes. Permission to marry may not 3.4. Annullment of marriage be granted in any circumstances to If the rules on consent or the cele- minors under 16 years of age. Permis- The family is not defined under bration of marriage are not observed the Constitution of Bosnia and Herze- sion to marry may be granted by the there are grounds for annulment. govina and the constitutions of the judge to minors above 16 years of age Bogus marriages (i.e.. marriages Entities, but human rights and basic if he considers that the minor is phys- contracted for reasons other than that freedoms, the right to private and ically and mentally capable to exer- of leading a shared life) are void. family life, home, and correspond- cising the rights that result by mar- Marriages contracted under threat ence are ensured. riage. are not valid.

Appendix 2: Working documents : Bosnia and Herzegovina 73 4. Protection measures

5. Provisions in criminal law

5.1. Classification of forced marriage years (paragraph 1). A parent, adop- three months and three years (para- A Human Rights Committee ter, or guardian who allows the minor graph 1). report notes that Bosnia and Herze- who has reached the age of 14 years Under Article 237, whoever, with govina recognises various offences to live with another person in extra- an outright violation of their legally which may involve forced marriage. marital community, or leads him to binding family duties, leaves a Crimes of violence against women this act is liable to the same sentence member of the family who is not able are among them. Under Article 221 of (paragraph 2). If the behaviour to take care of himself/herself in a the Criminal Code, rape within mar- defined under paragraph 2 is done difficult position is liable to a prison riage is an offence – defined as out of interest, the perpetrator is sentence between three months and involving force or the threat of direct liable to a prison sentence between three years (paragraph 1) If a assault. No mention is made of situa- six months and five years and to a member of the family, due to the tions where psychological duress is fine (paragraph 3). If a marriage is same reasons, dies, or earns seriously exercised. entered, criminal prosecution will harm his health , the perpetrator is Under Article 232 of the Criminal not take place, and if it is already liable to a prison sentence between Code, the competent person or the taking place it will be terminated. one and eight years (paragraph 2). registrar who celebrates an unlawful When deciding on the punishment, marriage is liable to a prison sentence Under Article 236, a parent, adop- the court can set the perpetrator with of up to one year. ter, guardian, or other person that a condition that he or she fulfills his Under Article 233 of the same abuses an underage person or by out- or her responsibilities towards the code, a person of legal age who lives right disregard of his/her duties of child (paragraph 3). in an extramarital community with a supporting and caring for the child minor who has reached the age of 14 neglects an underage person, he or years is liable to a prison sentence she is supposed to be taking care of, is 5.2. Prosecutions in cases of forced between three months and three liable to a prison sentence between marriage

6. Provisions of the law on foreign nationals

7. Policies and approaches

Croatia

1. International agreements

• The United Nations Convention of • The Convention on the Elimina- The optional protocol was also 7 November 1962 on Consent to tion of All Forms of Discrimination signed. Marriage, Minimum Age for Mar- against Women, which came into • The 1989 United Nations Conven- riage and Registration of Marriages force on 3 September 1981 in tion on the Rights of the Child was came into force on 9 December signed on 12 October 1992 and has 1964 by exchange of letters. accordance with the provisions of been ratified. Croatia took over the convention Article 27, was signed on 9 Sep- on 12 October 1992. tember 1992 and ratified in 2001.

2. Provisions in private international law

The form of marriage celebration This means that a marriage con- law of that state is recognised as for- is governed by the law of the place tracted by a Croatian national in a for- mally valid. where the marriage is contracted. eign state and in accordance with the

3. Provisions in civil law Under the Croatian constitution 3.1. Marital capacity years of age to marry if it can estab- (Article 45) the legal age of majority Marriage may be contracted by lish that the person has acquired the is 18 years. persons who have reached the age of physical maturity necessary for The Marriage and Family Relation- 18 years at the time of the marriage assuming the rights and duties associ- ships Act of 14 July 2003 sets out (Article 26(1)). ated with marriage (Article 26(2)). requirements for the conclusion and A competent court may authorise Before taking its decision the court validity of marriages. a person who has reached sixteen may hear the minor who has made

74 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives the application and his or her parents longer permits future spouses to be now choose either a civil or a reli- or guardians. represented by a family member, as gious ceremony. Croatian nationals People suffering from mental ill- marriage by proxy has been done may marry in the presence of repre- ness, people with mental disabilities away with. sentatives of a religious community who are incapable of understanding recognised by the Parliament of the 3.3. Celebration of marriage the significance of marriage and its Republic of Croatia, or before a civil associated obligations, and people Before the new Family Code was authority. In each case the person whose judgment is impaired are not adopted in December 1998, family officiating will check, on behalf of the allowed to contract a marriage (Arti- relationships were regulated by the state and in accordance with the law, cle 27). 1978 Marriage and Family Relation- that all the pre-conditions for con- ships Act. Marriage had to be cele- tracting a marriage have been met. 3.2. Consent brated before a competent represent- It is a necessary condition of mar- ative of government because civil 3.4. Annulment of marriage riage that two persons of different marriage was compulsory and the sexes should declare, in the presence civil celebration had to take place If all the formal and substantive of a competent authority, that they before any religious ceremony – the requirements for marriage have not wish to contract the marriage (Article penalty for failure to observe this rule been met the marriage is void. 24(1)). being imprisonment for a year. Under Article 24(2) of the July The marriage will not be valid if The new Civil Code which came 2003 Act, the fact that consent was consent has been obtained under into force on 1 July 1999 redrew the obtained under duress is a ground for duress (Article 24(2)). The law no rules on marriage, and people may annulment.

4. Protection measures

The legal age of consent to sexual activity is 14 years.

5. Provisions in criminal law

5.1. Classification of forced marriage Chapter 14 of the Criminal Code If a criminal offence of the types enumerates crimes against sexual described in the second or third para- The Criminal Code as amended in freedom or morality. It includes the graphs of this article is committed October 1997 came into force on 1 crime of rape, which is defined in against a minor, the perpetrator is January 1998. Article 188. liable to at least five years’ imprison- It does not contain any specific Anyone who constrains another ment. offence of forced marriage. person by force or by threat to that If the commission of a criminal Nonetheless, penalties for ordi- person’s life, or who falsely imprisons offence of the type described in the nary offences such as assault and another person, for the purpose of second paragraph of the article has rape may be applicable to forced mar- engaging in sexual relations or an act the consequences described in the riage. equivalent to the sex act is liable to a third paragraph of the article, the per- prison sentence of between one and petrator is liable to at least five years’ The Criminal Code includes a new ten years. imprisonment. form of words concerning “acts equiv- Anyone who commits a criminal Rape has thus been recently rede- alent to the sex act”, namely any act offence of the type described in the fined in Croatia to include any sexual which is not heterosexual penetration first paragraph of this article with par- act or the equivalent committed by but which has a sexual component, ticular cruelty or humiliation, or is force, through the abuse of authority such as touching without penetra- one of a number of individuals engag- or under coercion. This implies that tion. Such acts are now punishable if ing in more than one sex act or the rape may be committed within mar- they are committed with a child (i.e.. equivalent against the same person, riage. someone under 14 years of age) or is liable to a prison sentence of at with the use of force or abuse of least three years. 5.2. Prosecutions in cases of forced authority, or in similar circum- If the commission of a criminal marriage stances. offence of the type described in the The offence of rape automatically There is a further category of acts first paragraph of this article causes attracts prosecution, whereas under with sexual content that are not the death of the person raped, or the old criminal code proceedings equivalent to the sex act, which are severe health damage, the perpetra- could be initiated only if the victim punishable under similar circum- tor shall be liable to imprisonment for asked the public prosecution service stances but attract lesser penalties. a period of at least three years. to act.

Appendix 2: Working documents : Croatia 75 6. Provisions of the law on foreign nationals

7. Policies and approaches A parliamentary committee on A coordinator has been appointed Members of the public prosecution gender equality was set up in 2001. to head a campaign against human service and the judiciary have under- A new human rights office, includ- trafficking. gone training on European rules con- ing a gender equality unit, was estab- cerning violence in the family. lished in 2001. Victims of violence are accommo- Guidelines have been issued on dated in reception centres run by vol- police response to domestic violence. untary bodies.

Cyprus

1. International agreements • The Convention on the Elimina- • The 1989 United Nations Conven- Parental Responsibility and Meas- tion of All Forms of Discrimination tion on the Rights of the Child was ures for the Protection of Children, against Women, which came into signed on 7 February 1991 and has which has not yet entered into been ratified. force, amends the Convention of 5 force on 3 September 1981 in • The Convention of 19 October October 1961 concerning the accordance with the provisions of 1996 on Jurisdiction, Applicable Powers of Authorities and the Law Article 27, was signed on 23 July Law, Recognition, Enforcement Applicable in respect of the Protec- 1985 and has been ratified. and Cooperation in respect of tion of Minors.

2. Provisions in private international law

3. Provisions in civil law The Marriage Act (104(I)) 2003 may be authorised, for serious rea- 3.3. Celebration of marriage lays down substantive and formal sons, to marry at the age of 16. requirements for marriage. 3.4. Annulment of marriage 3.2. Consent 3.1. Marital capacity Marriage must be contracted with If the spouses have consented The minimum marriage age is 18 the free and full consent of the under duress the marriage is void years (Articles 14 and 15). A person spouses (Article 14). (Article 13).

4. Protection measures

5. Provisions in criminal law 5.1. Classification of forced lence in the family and the protection the law in relation to marriage, marriage of victims, defines rape or attempted including (see Articles 178- No specific offence of forced mar- rape of spouses as a crime (see Crim- 180). riage is recognised in the Criminal inal Code, Articles 144-146). Code. However, Article 5 of Act 119 Article 154 of the Criminal Code 5.2. Prosecutions in cases of forced (1)2000, on the prevention of vio- lists seven penalties for breaches of marriage

6. Provisions of the law on foreign nationals

7. Policies and approaches

Czech Republic

1. International agreements • The United Nations Convention of Czech Republic took over the con- accordance with the provisions of 7 November 1962 on Consent to vention on 22 December 1993. Article 27, was signed on 22 Febru- Marriage, Minimum Age for Mar- • The Convention on the Elimina- ary 1993 and has been ratified. riage and Registration of Marriages tion of All Forms of Discrimination came into force on 9 December against Women, which came into • The United Nations Convention 1964 by exchange of letters. The force on 3 September 1981 in on the Rights of the Child, of 1989,

76 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives was signed on 22 February 1993 and has been ratified.

2. Provisions in private international law

3. Provisions in civil law

The capacity of physical persons take one another for husband and If the intending spouses have cele- to acquire rights and obligations orig- wife. brated a civil marriage, a subsequent inates when they are born. Viable Marriage is deemed not to have religious ceremony will have no legal unborn children have the same been contracted if the man or woman effect. If they have celebrated a reli- capacity. was constrained by means of physical gious marriage, they may not subse- Full legal capacity is acquired on violence to make the marriage decla- quently celebrate a civil marriage. reaching the age of majority. ration. 3.4. Annulment of marriage The age of majority is 18 years. Majority cannot be acquired before 3.3. Celebration of marriage A court may annul a marriage on its own initiative in the following cir- that age except through marriage. The declaration must be made cumstances: Majority thus acquired cannot be lost publicly and solemnly in the pres- • if a minor was married without the through the dissolution or annulment ence of two witnesses. of the marriage. approval of a court, unless the hus- Marriage may celebrated in civil or band who was a minor at the time 3.1. Marital capacity religious form. of the marriage has since reached A minor may not contract mar- • In civil marriage the intending 18 years of age or the wife has riage unless authorised to do so by a spouses make a declaration in the become pregnant; court for serious reasons. The minor presence of the mayor or a munic- • total absence of legal capacity on must be aged 16 or over. ipal councillor representing the the part of one of the intending If the minor had not reached his or administrative unit in which one spouses; her 16th birthday the marriage is of the two is domiciled. If the life • if, when the marriage was cele- deemed not to have been concluded. of one of the intending spouses is brated, the capacity of one of the in imminent danger, the marriage intending spouses was restricted 3.2. Consent may be celebrated in any mayor’s or if he or she was suffering from a Marriage may not be entered into office; mental disorder; by a person who has been deprived of • In religious marriage the intend- • if the declaration of marriage was legal capacity. ing spouses make a declaration in made as the result of a threat or a A person whose capacity to con- the presence of the competent reli- mistake with regard to the identity tract legal agreements is restricted gious body and the person of one of the partners. may marry only subject to the entrusted with that function by the A marriage that is annulled is approval of a court, granted in view of competent church. Marriages cele- deemed never to have been con- the social benefit of the marriage. brated in religious form must meet tracted. Marriage may not be contracted by the conditions for civil marriage. A marriage is deemed not to have a person suffering from a mental dis- The marriage may be celebrated been contracted if the marriage decla- order unless a court decides that his only after the intending spouses ration was made under physical or her state of health is compatible have submitted a certificate issued duress; if it involved a minor aged with the social purpose of the mar- less than three months previously under 16 at the time of the ceremony; riage. by the competent civil authority, if a religious marriage was not duly Marriage is contracted by means attesting that they have met all the notified to the civil authority; or if the of a free, full and mutual declaration statutory requirements for the cel- rules of marriage by proxy were not by a man and woman who wish to ebration of marriage; observed.

4. Protection measures

5. Provisions in criminal law

The Criminal Offences Act was 5.1. Classification of forced marriage uation of total impunity for forced passed in 1961: it contains general marriage. provisions with regard to criminal Forced marriage is not a specific The offence of rape is not relevant law. offence. either since it depends upon the use of force rather than the absence of The absence of relevant provisions consent. Rape within marriage is not in relation to violence results in a sit- a specific offence.

Appendix 2: Working documents : Czech Republic 77 5.2. Prosecutions in cases of forced marriage

6. Provisions of the law on foreign nationals

7. Policies and approaches

Denmark

1. International agreements • The United Nations Convention of against Women, which came into Law, Recognition, Enforcement 7 November 1962 on Consent to force on 3 September 1981 in and Cooperation in respect of Marriage, Minimum Age for Mar- accordance with the provisions of Parental Responsibility and Meas- riage and Registration of Mar- Article 27, was signed on 21 April ures for the Protection of Children, riages, which came into force on 9 1983 and has been ratified. which entered into force on 1st Jan- December 1964 by exchange of let- • The 1989 United Nations Conven- uary 2002, amends the Convention ters, was signed on 17 October tion on the Rights of the Child was 1963 and ratified on 20 August signed on 19 July 1991 and has of 5 October 1961 concerning the 1965. been ratified. Powers of Authorities and the Law • The Convention on the Elimina- • The Convention of 19 October Applicable in respect of the Protec- tion of All Forms of Discrimination 1996 on Jurisdiction, Applicable tion of Minors.

2. Provisions in private international law

3. Provisions in civil law 3.1. Marital capacity authorities and by declaring their marriage (Article 20 (2) of the Mar- intention to marry, the intending riage Act). 3.2. Consent spouses give their consent to marry, By presenting themselves together which is a condition for validity of a and in person before the relevant

4. Protection measures

5. Provisions in criminal law

6. Provisions of the law on foreign nationals Rules on family reunification are they should reside at the same least three years to run from the date set out in the Aliens Act. address, and both must desire to be on which the application is submit- They were tightened up by Act 365 united. ted. of 6 June 2002, which introduced The law stipulates that foreign new immigration policy, in particular nationals who wish their families to People who wish a spouse to come amending the Aliens Act. come to Denmark must meet certain to Denmark have to meet special con- The Act of 6 June 2002 came into general conditions: they must pos- ditions. Since the Act of 6 June 2002 force on 1 July 2002, and since that sess a residence permit not of the came into force, a residence permit of date family reunification has no type issued for purposes of study in unlimited duration may be obtained longer been recognised as a right, Denmark; they must be capable of only after seven years’ residence in even for spouses and children – each providing for the family, which the country. Thus it is only after ten application now being assessed indi- means having a regular monthly years that spouses can be reunited. vidually. On the other hand, the income at a level appropriate to the Both members of the couple must assessment process can result in size of the family; and their accom- also have more ties in Denmark than family reunification being authorised modation must be adequate to house they have elsewhere. However, the for people who do not meet the statu- the family members. couple does not have to satisfy the tory criteria. The conditions with regard to condition of ties if the spouse living The new Act also reduced the cate- housing are set out in a specific regu- in Denmark has been a Danish gories of people potentially eligible lation: no more than two people must national for 28 years or was born and for family reunification, and spouses be accommodated in one room raised in Denmark or came to Den- are now covered only if both are aged unless there is at least 20 m2 of space mark as small child and was raised in over 24 years. There is a further for each occupant. If the accommoda- Denmark and has resided in Den- requirement that, after reunification, tion is rented, the lease must have at mark for 28 years.

78 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives The foreign national making the Under Article 44 of the constitu- been convicted of an offence. In the application must provide an “eco- tion a foreign national can acquire last mentioned case there is a provi- nomic guarantee” of at least DK 50 Danish nationality only by means of sion for applications to be made after 000 (EUR 6 700) to cover any future an Act of parliament. a stipulated waiting period, which public expenses to support the new The Danish Nationality Act stipu- depends on the nature of the offence. resident. This amount is revised lates that naturalisation is the only Acquisition of Danish nationality annually. means whereby foreigners can requires renunciation of the appli- The foreign national must not become Danish nationals. This cant’s original nationality, except in have received public financial assist- requires a naturalisation Act passed the case of refugees and citizens of ance for a period of one year prior to by the Folketing, which has a special countries where loss of nationality submission of the application for standing committee for nationality presents difficulties. family reunification, and must not matters. The circular equates cohabitation receive any such assistance while the In a circular on the acquisition of with marriage and stipulates that the application is being processed. Danish nationality through naturali- period of required residence in Den- The spouse will obtain a residence sation, issued on 16 June 1999, the mark may have been interrupted, permit that is valid for one year and Ministry of Justice listed the rules provided, as a general rule, that the renewable. After three years he or that the Nationality Committee uses interruption did not last longer than she may obtain a permit valid for in considering applications for natu- one year. In the case of interruption, three years and renewable. ralisation. The circular mentions the the total length of residence must be Residence permit to a child aged particular case of foreign nationals equivalent to the minimum required, less than 15 years, un-married and who have married Danes: they are and the foreign national must intend having not started his/her own able to obtain naturalisation more to settle in Denmark. family will be granted if the parent rapidly than other applicants. Applications for naturalisation are resident in Denmark has the custody. Whereas the normal required length submitted to the local police. The These conditions for family reunifica- of residence in Denmark is nine applicant will be called for interview tion with children are deviated from years, the spouse of a Danish national and the file will then be forwarded to the UN Convention on the Rights of will be eligible for naturalisation after the Ministry of Justice, which will the Child, the European Convention six years depending on the duration check that he or she meets the on Human Rights or other interna- of the marriage requirements. Naturalisation is not tional obligations. Naturalisation is not available to automatic. There is no procedure for Denmark must respect Articles 8 any foreign national who owes appealing decisions. If the applica- and 12 of the European Convention money to the state, who is incapable tion is accepted the foreign national’s on Human Rights, in particular the of conducting an ordinary conversa- name will be added to the naturalisa- right for everyone to family life. tion in Danish or who has recently tion bill currently in preparation.

7. Policies and approaches

Estonia

1. International agreements

• The Convention on the Elimina- accordance with the provisions of • The 1989 United Nations Conven- tion of All Forms of Discrimination Article 27, was signed on 21 Octo- tion on the Rights of the Child was against Women, which came into ber 1991 and has been ratified. signed on 21 October 1991 and has force on 3 September 1981 in been ratified.

2. Provisions in private international law

3. Provisions in civil law

3.1. Marital capacity27 ten permission of both their parents riage, a court may authorise it in or their legal guardian (Article 3 (2)). response to an application by the People who have reached the age The permission of one parent is other parent or the person who has of 18 years are entitled to marry (Arti- sufficient for a minor aged between parental authority. The court can cle 3 (1)). 15 and 18 years to marry if the minor authorise the marriage if it is in the in question has only one parent, or if minor’s interest (Article 3 (4)). Minors aged between 15 and 18 one parent is missing or has been Marriage is not possible between years may marry subject to the writ- deprived of legal capacity or of his or persons one of whom has been her parental rights (Article 3 (3)). placed under guardianship due to his 27. The new Family Act will bring changes into the regulation of the exceptions in the legal If one of the two parents or the or her restricted active legal capacity age of marriage. guardian does not consent to the mar- (Article 4 (3)), excepted in cases spec-

Appendix 2: Working documents : Estonia 79 ified in Article 3 (2)-(4), which are his/her desire to marry or if a future office at the time it is celebrated (Arti- those concerning minors mentioned spouse has not reached the marriage- cle 1(2)). above. able age or if circumstances set out in Article 4 of the Act are obvious (Arti- 3.2. Consent cle 3 (2)). 3.4. Annulment of marriage Marriage is contracted through the The marriage must be contracted mutual desire of the future spouses by the intending spouses, both of The marriage will be invalid if one (Article 2(1)). whom must be present in person at of the future spouses does not con- 3.3. Celebration of marriage the same time. firm consent or is not of marriageable A marriage shall not be contracted The marriage will have legal effect age, or if the conditions laid down in if a future spouse does not confirm only if it is registered in a public Article 4 are not met (Article 2(2)).

4. Protection measures

5. Provisions in criminal law

6. Provisions of the law on foreign nationals

7. Policies and approaches Annika Hüvanen notes: “In discus- between forced marriages and It would be appropriate to extend sion of forced marriage in Estonia, arranged marriages. The definition of the notion of forced marriage to there is a need for the concept to be a forced marriage is a marriage con- include bridal kidnappings and vio- defined because understandings of it cluded without the full consent of lent treatment by third parties - differ according to the context in mul- both parties and in which violence is although the kidnapping of wives is ticultural societies. For example, a factor. not a characteristic tradition in Esto- there are differences in Europe nia.”

Finland

1. International agreements • The United Nations Convention of • The Convention on the Elimina- • The Convention of 19 October 7 November 1962 on Consent to tion of All Forms of Discrimination 1996 on Jurisdiction, Applicable Marriage, Minimum Age for Mar- against Women, which came into Law, Recognition, Enforcement riage and Registration of Mar- force on 3 September 1981 in and Cooperation in respect of riages, which came into force on 9 accordance with the provisions of Parental Responsibility and Meas- December 1964 by exchange of let- Article 27, was signed on 4 Sep- ures for the Protection of Children, ters. Finland adopted the Conven- tember 1986 and has been ratified. which has not yet entered into tion on 18 August 1964. force, amends the Convention of 5 • The Convention of 14 March 1978 • The 1989 United Nations Conven- October 1961 concerning the on Celebration and Recognition of tion on the Rights of the Child was Powers of Authorities and the Law the Validity of Marriages has been signed on 21 June 1991 and has Applicable in respect of the Protec- signed. been ratified. tion of Minors.

2. Provisions in private international law

3. Provisions in civil law Marriage is governed by the Mar- bers of the family shall create a happy permission for an under-18-year-old riage Act of 13 June 1929/234, as home. to marry. amended by the Act of 16 April 1987/ Before such a decision is taken, the 411, Part I, Conclusion and dissolu- 3.1. Marital capacity person legally responsible for the tion of marriage. minor must be consulted if his or her According to the Marriage Decree Chapter 2, Section 4 of the Mar- opinion might have a determining of 6 November 1987/820, Chapter 2, riage Act of 13 June 1929/234, as effect on the outcome. Section 9, the purpose of marriage is amended by the Act of 16 April 1987/ to found a family for the mutual ben- 411, Part I, provides that no-one 3.2. Consent efit of its members and the preserva- under 18 can marry. Where there are Chapter 1, Section 1 of the Act tion of society. Marriage is intended special reasons for doing so, the Min- states that a woman and man who to be permanent so that all the mem- istry of Justice may, however, give have agreed to marry must make a

80 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives commitment. The marriage must be if they wish to marry one another, the be conducted if the person officiating concluded by means of a marriage official must declare them man and is aware of an impediment to it or if ceremony. It must be certified before wife. one of the partners is manifestly inca- the ceremony that there are no Chapter 4, Section 16 of the Act pable of understanding the signifi- impediments to the marriage. states that, in addition to the stipula- cance of marriage due to a disturbed Under Chapter 2, Section 5 of the tions of Section 15, religious commu- state of mind. Before conducting the Act, a person subject to guardianship nities which conduct marriages may ceremony, the person officiating may not marry without the guard- lay down other conditions and formal must ensure that checks have been ian’s permission. requirements. The requirements for carried out to determine that there is A court may allow the marriage to civil ceremonies are set out in a Pres- no impediment to the marriage, in take place if the guardian does not idential decree. accordance with Sections 11-13 of the have valid reasons for withholding Under Chapter 4, Section 17 of the Act. If the certificate required under permission. Marriage Act of 13 June 1929/234, as Section 13 was issued more than four amended by the Act of 16 April 1987/ months before the marriage date, the 3.3. Celebration of marriage 411, Part I, a religious ceremony may marriage may not proceed on the Chapter 4, Section 14 of the Act be conducted: basis of that certificate. states that the celebration of marriage • in the Lutheran Evangelical requires the presence of a family Church by a minister of the 3.4. Annulment of marriage member and another witness at church; either a religious or a civil ceremony. • in the Greek Orthodox Church by a Under Chapter 4, Section 19 of the A religious marriage ceremony must priest; Marriage Act of 13 June 1929/234, as take place in either a Lutheran Evan- • in another religious community by amended by the Act of 16 April 1987/ gelical church or a Greek Orthodox a person authorised therein to con- 411, Part I, the marriage ceremony church, or within another religious duct marriages. must be declared void if it was not community which the Minister of Civil ceremonies may be con- conducted in accordance with Sec- Education has authorised to conduct ducted by: tion 15 or if it was conducted by an marriage ceremonies. • an elected lay magistrate or dis- unauthorised person. Chapter 4, Section 15 of the Act trict court judge; stipulates that the couple must be • the president or another judge of The President of the Republic may present together at the marriage cere- the local administrative court; decide, for special reasons, to declare mony. Once the engaged couple have • a local registrar. valid a ceremony that would be void replied affirmatively when asked by Under Chapter 4, Section 18 of the under the terms of the preceding par- the official conducting the ceremony Act, the marriage ceremony may not agraph.

4. Protection measures

5. Provisions in criminal law

5.1. Classification of forced marriage (3) persons who attempt rape are Attempted aggravated rape is also liable to prosecution. an offence. There is no specific offence of Section 2 of the same chapter forced marriage under the Finnish Section 3 (non-official translation, (non-official translation, Chapter 20, Criminal Code. Chapter 20, RI 101, p. 1,737, Section 3, RI 101, p. 1,737, Section 2, Aggravated Sexual offences (563/24.07.1998)), However (according to a non-offi- rape (563/24.07.1998)), defines aggra- provides: cial translation) Chapter 20 of the vated rape as involving: (1) if rape involving a lesser degree code, which is concerned with “sex- • infliction of serious physical of violence or threat is considered to ual offences” (RI 101, p. 1737, Section injury, serious illness or threat to have been committed in mitigating 1, Rape (563/24.07.1998)), provides: life; circumstances, the offence is deemed (1) anyone who compels another • commission of the offence by to be that of using duress in sexual to have sexual intercourse through more than one person, or with the intercourse and is punishable by the use of threat or violence is guilty infliction of severe physical or imprisonment for a maximum period of rape and liable to a prison sentence mental suffering; of three years; of between one and six years; • commission of the offence in a (2) anyone is likewise guilty of particularly brutal, cruel or humil- (2) a person who has compelled rape who takes advantage of another iating manner; another to have sexual intercourse by person’s defencelessness and has • use of firearms, knives or other means of a threat other than that of sexual intercourse with that person lethal weapons, or other forms of the type described in Section 1(1) is after having rendered him or her serious violence. guilty of using duress in sexual inter- unconscious or induced a state of Aggravated rape is punishable by course; incapability through fear or for a sim- imprisonment for between two and (3) attempted use of duress in ilar reason; ten years. sexual intercourse is an offence.

Appendix 2: Working documents : Finland 81 Under Section 4 (“Duress in sexual another person to engage in sexual whose dependence the perpetrator acts”) (non-official translation, Chap- intercourse or another sexual act that has blatantly abused, ter 20, RI 101, p. 1737, Section 4 (563/ constitutes a violation of [the latter’s] the perpetrator is guilty of sexual 24.07.1998)): right to sexual freedom, or if such an abuse and liable to a fine or a (1) anyone who, by means of vio- act involves: prison sentence of up to four lence or threat, compels another • a person aged less than 18 years years; person to engage in a sexual act other who, in a school or other institu- (2) a person is also guilty of sexual than that of the type described in Sec- tion, is subject to the authority of, abuse who takes advantage of tion 1, or who, in the course of such under supervision by, or similarly another’s inability – due to uncon- an act, violates [that person’s] right to subordinate to the perpetrator; sciousness, illness, disability or any sexual freedom, is guilty of using • a person aged less than 18 years other factor – to defend himself or duress in a sexual act and liable to a whose sexual independence is herself or to express a decision, and fine or a prison sentence of up to diminished by immaturity or age who has sexual intercourse or three months; difference, or whose immaturity is engages in some other sexual act with (2) attempted use of duress in a blatantly abused by the perpetra- that person, or subjects the person to sexual act is an offence. tor; an act that violates his or her sexual Section 5 (“Sexual abuse”) (non- • a patient of a hospital or other freedom; official translation, Chapter 20, RI institution whose capacity for self- (3) attempted sexual abuse is an 101, p. 1737, Section 5 (563/ defence is reduced as a result of ill- offence. 24.07.1998)) states: ness, disability or other infirmity; (1) if a person abuses his position • a person who is particularly 5.2. Prosecutions in cases of forced and, by means of deception, leads dependent on the perpetrator, or marriage

6. Provisions of the law on foreign nationals

7. Policies and approaches

France

1. International agreements

• The United Nations Convention of force on 3 September 1981 in force, amends the Convention of 5 7 November 1962 on Consent to accordance with the provisions of October 1961 concerning the Marriage, Minimum Age for Mar- Article 27, was signed on 14 Powers of Authorities and the Law riage and Registration of Mar- December 1983 and has been rati- Applicable in respect of the Protec- riages, which came into force on 9 fied. tion of Minors.29 December 1964 by exchange of let- • The 1989 United Nations Conven- ters, was signed on 10 December tion on the Rights of the Child was 1962. 29. Rev. crit. DIP, 1996, p. 813, commentary by signed on 8 August 1990 and has P. Lagarde, Rev. crit. DIP, 1997, p. 217; see • Three bilateral agreements con- been ratified. also Rev. crit. DIP 2000, p. 133 on progress cerning personal status have been • The Convention of 19 October with ratifications, and F. Boulanger, De la concluded: Convention de la Haye de 1961 à celle de 1996 on Jurisdiction, Applicable 1996 sur la loi applicable à la responsabilité – the Franco-Polish Agreement of 5 Law, Recognition, Enforcement parentale et la protection des enfants, re April 1967; and Cooperation in respect of quiem pour la loi nationale?, Festschrift F. – the Franco-Yugoslav Agreement of Sturm, Editions juridiques de Liège, 1999. Parental Responsibility and Meas- This agreement replaces the Hague Con- 18 May 1971; ures for the Protection of Children, vention of 5 October 1961 on the protection – the Franco-Moroccan Agreement which has not yet entered into of children, which came into force on of 10 August 1981 on the status of 10 November 1972 (see Rev. crit. DIP 2000, p. 115; and G.A.L. Droz, JDI 1973, p. 603; Y. persons and the family and on 28. Franco-Moroccan Agreement of 10 August Lequette,“Protection familiale et protection judicial cooperation.28 1981 on the status of persons and the family étatique des incapables”, Biblio. DIP 1976, • The Convention on the Elimina- and judicial cooperation, Rev. crit. DIP 1983, n° 198 et seq.; Rép. dr. int. Dalloz, 1998, n° p. 531; and see P. Decroux, JDI 1985, p. 49; 9-81; F. Boulanger,“Les rapports juridiques tion of All Forms of Discrimination F. Moneger, Rev. crit. DIP 1984, pp 29 and entre parents et enfants” Economica, 1998, against Women, which came into 267. n° 233-239.

2. Provisions in private international law

There are few French provisions and capacity of persons govern codification has been attempted, concerning choice of law or jurisdic- French persons, even those residing notably in connection with revision tion. in foreign countries.” of the Civil Code after the second Article 3 of the Civil Code states Private international law has not world war, and (specifically in rela- that: “Statutes relating to the status been codified in France, although tion to international law) with the

82 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives plan to add a new Book IV to the Civil known as the “public policy excep- tain countries which are listed in a Code.30 Choice-of-law rules have been tion”. For example, with regard to decree of 26 October 1939. Under included in certain statutes in the marriages celebrated in France, Article 170, paragraph 1 of the Civil field of family law. The Divorce Law public policy will not permit applica- Code, when a French national is mar- Reform Act of 11 July 1975, for exam- tion of foreign legislation that allows ried abroad the requirement of prior ple, introduced into the Civil Code a marriage at an age below the legal public notice, as laid down in Article new Article 310 – the only article in minimum for marriage in French law. 63 of the Civil Code, must be Chapter V of the code (“Conflict of In the case of marriages celebrated observed, as must the requirement of laws in matters of divorce and judicial abroad, considerations of public Article 146(1), added in 1993, that the separation”). policy have less force. They will not French national must be present at With regard to the conclusion of prevent observance of rights acquired the ceremony.33 marriages there are separate provi- abroad in a lawful manner and under The Franco-Moroccan Agreement sions in relation to substantive condi- foreign law that would be contrary to on the status of persons and the tions, formal conditions and penalties public policy were it implemented in family and on judicial cooperation for breach of the conditions. France. provides, in Article 5, that the sub- As regards the substantive condi- With regard to the formal require- stantive marriage conditions apply- tions for marriage it is the law of the ments for marriage, the principle ing to each spouse are those laid country of nationality that applies. applied is that of locus regit actum. down in the law of the state of which This principle derives direct from Marriages between foreign nationals he or she is a national. The formal Article 3 of the Civil Code and means in France are subject to the same con- conditions are specified in Article 6 of that a marriage contracted by a ditions with regard to formalities and the Convention, and a distinction is French national abroad is void if it public notice that apply to French made between the form of marriage does not meet the substantive condi- nationals. No other form of marriage, between French nationals abroad and tions for marriage under French law. even if it is in accordance with the that applicable in mixed marriages. A foreign national being married by a personal status of the spouses, is per- In the first case, the intending French civil authority must prove mitted. It is nonetheless accepted, on spouses may choose between the compliance with the conditions for a reciprocal basis and in accordance form provided for in the law of the marriage laid down by his or her with Articles 48 and 170 of the Civil place where the marriage is cele- national legal system. The general Code concerning consular marriage brated and the consular form of mar- principles on proof of compliance of French nationals abroad, that for- riage. In the second case the law of with foreign law are applied. For eign diplomatic staff or consuls in the place of celebration applies. example, the parties can show that France may celebrate marriages With regard to penalties for non- they meet the requirements by sub- between their own nationals pro- observance of marriage require- mitting an affidavit of law drafted in vided that the law of the state in ques- ments, there is a distinction depend- French and issued by a consulate or tion recognises civil marriage. Both ing on whether or not the marriage embassy of the relevant foreign state spouses must, however, have the has been celebrated. Prior to celebra- in France, by a foreign lawyer or by a same nationality.32 tion of the marriage, if any condition French lawyer who specialises in the has not been observed the civil The principle governing marriages law in question. The affidavit will authority may refuse to celebrate it. celebrated abroad is set out in Article mention the relevant statutes and In such cases the procedure for rais- 170, paragraph 1 of the Civil Code: “A case law.31 If the spouses have the ing an objection (under Articles 172 marriage contracted in a foreign same nationality the applicable law et seq. of the Civil Code) comes into country between French persons [or] will be their shared national law. If play, and the marriage may be post- between a French person and an they are of different nationalities the poned (pursuant to Article 175-2), the alien is valid where it is celebrated two systems of law will be applied aim being to prevent marriages of according to the formalities usual in distributively. In relation to bilateral convenience. that country […].” This principle of impediments to marriage based on Once a marriage has been cele- applying local formalities has been kinship or bigamy, the two national brated the only sanction is an action extended to marriages between for- systems of law will be applied cumu- for annulment, and this has certain eign nationals. It has always been latively, which means in effect that legal implications. In principle, the accepted, on the basis of Article 48 of the more rigorous of the two will penalty for breach of a given condi- the Civil Code, that French diplo- apply. tion is that laid down in the law gov- matic and consular personnel abroad If the foreign legal system is at erning the condition which has been may celebrate marriages between odds with imperative provisions of breached. With regard to conditions French nationals. An Act passed on French law or major principles of of substance, the nature of the pen- 29 November 1901 added two para- French law that are deemed essen- alty and thus the procedure for an graphs to Article 170, authorising tial, it will not apply. This is what is annulment action will be that pre- consular marriage between French nationals and foreign nationals in cer- 30. Articles 2282-2316, texts and commentary, 33. On the classification of this type of provi- J. Foyer, JDI, 1971, p. 31. sion, see Court of Cassation, 1st Civil Cham- 31. See Instruction générale de l’état civil of 32. See Instruction générale de l’état civil of ber, 15 July 1999, RCDIP 2000, p. 207, note 11 May 1999, Article 533. 11 May 1999, Article 561. L. Gannagé.

Appendix 2: Working documents : France 83 scribed by the national law that has been breached.

3. Provisions in civil law

3.1. Marital capacity Where one of the parents is dead may not marry before the age of 18 or unable to express his or her inten- without the consent of the family Both males and females before tion, the consent of the other suffices council (Article 159 of the Civil their 18th birthday may not contract (Article 149 of the Civil Code). Code). marriage. Since the Civil Code of Where the father and mother are 1804, a male before his 18th birthday dead or unable to express their inten- 3.3. Celebration of marriage and a female before her 15th birthday tion, the grandfathers and grand- Marriage is celebrated publicly had not the marriageable age, but on mothers take their place. Where there before the civil authority of the 29 March 2005, the Senate adopted an is disagreement between a grandfa- municipality where one of the amendment to the proposed law on ther and a grandmother in the same spouses has his or her domicile or combating violence within the cou- lineage or disagreement between the residence at the date of the public ple, increasing females’ marriageable two lineages, the disagreement is notice provided for by Article 63 and, age from 15 to 18 years. taken as consent (Article 150 of the in the event of exemption from giving Nevertheless, the public prosecu- Civil Code). public notice, at the date of the tor (state law office) of the place A lawfully acknowledged illegiti- exemption provided for by Article 169 where a marriage is to be celebrated mate child who has not reached the (Article 165 of the Civil Code). may grant exemption as to age for full age of 18 may not contract a mar- 3.4. Annulment of marriage serious reasons (Article 145 of the riage without the consent of which- Civil Code). ever parent acknowledged him, or of A marriage contracted without the both parents if he was acknowledged free consent of the two spouses, or of 3.2. Consent by both. If the father and mother dis- one of them, may be contested only agree the disagreement is taken as by the spouses or by the spouse There is no marriage where there consent. The provisions of Article whose consent was not free (Article is no consent (Article 146 of the Civil 149 are applicable to illegitimate chil- 180 of the Civil Code). Code). dren who are minors (Article 158 of In a case of that kind an applica- Minors may not contract marriage the Civil Code). tion for annulment ceases to be without the consent of their father An illegitimate child who was not admissible if there has been continu- and mother; in the case of disagree- acknowledged, or one who, after ous cohabitation for six months since ment between the father and mother, being acknowledged, lost father and the spouse acquired his or her full the disagreement is treated as con- mother, or whose father and mother freedom (Article 181 of the Civil sent (Article 148 of the Civil Code). are unable to express their intention, Code).

4. Protection measures If the health, safety or morality of jointly, by one of them, by the person should be taken. The court may, a non-emancipated minor is at risk or or service responsible for the minor, exceptionally, act on its own initia- his or her upbringing is seriously or by a guardian, the minor in ques- tive (Article 375 of the Civil Code). compromised, a court may – on appli- tion, or the public prosecution serv- cation by the father and mother ice – instruct that welfare measures

5. Provisions in criminal law

5.1. Classification of forced marriage Proceedings for complicity may be French criminal law absolutely There is no specific offence of taken against the parents of a minor. excludes the concept of consent, forced marriage in the French Crimi- Rape is placed in the most serious cat- whatever the age of the perpetrator, if nal Code. egory of offences. the victim is less than 15 years old. In Nonetheless: “Any act of sexual The penalty for rape is 20 years’ fact, in such circumstances the vic- penetration, whatever its nature, imprisonment if tim’s age is an aggravating factor and committed against another person by • the victim is aged under 15 years, the perpetrator is liable to 20 years’ violence, constraint, threat or sur- or; imprisonment. prise is rape. Rape is punishable by 15 • the victim is a person whose par- Offences of a sexual nature or years’ imprisonment” (Article 222-23 ticular vulnerability, due to age, ill- those committed against minors, as of the Criminal Code). The definition ness, infirmity, physical or described in Article 706-47 of the includes digital penetration of the psychological deficiency or preg- Code of Criminal Procedure, are not anus or vagina and acts of fellatio nancy, is apparent or is known to covered by the amnesty provisions without consent. Forced marriage the perpetrator (Article 222-24 of introduced in a law of 6 August 2002. can be regarded as rape of a spouse. the Criminal Code). Article 706-47 is concerned with

84 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives minors who are victims of murder or (Title I, Chapter VIII) for measures to In the case of under-age victims manslaughter preceded or accompa- combat human trafficking and pro- Act 98-468 of 17 June 1998 extends nied by rape or acts of barbarity. curing. Under Article 42, any person the limitation period to 10 years after The presumption that spouses who has been a victim of exploitation the victim reaches majority, whoever consent to sexual acts in the context through prostitution qualifies for pro- the aggressor. The Act applies to of marital intimacy applies only in tection and assistance arrangements, offences which were not time-barred the absence of proof to the contrary at 20 June 1998. (decision of the Court of Cassation, provided and coordinated by the Criminal Chamber, 11 June 1992). administrative authorities in active The Internal Security Act of 18 cooperation with various welfare 5.2. Prosecutions in cases of forced March 2003, “Sarkozy Act”, provides agencies. marriage

6. Provisions of the law on foreign nationals

The applicable legislation is Order retained his or her French nationality have been doing so for at least one 45-2658 of 2 November 1945 on for- and, if the marriage was celebrated year may apply for family reunifica- eigners’ entry into and residence in abroad, that it has already been tion in respect of their spouse and France, as amended by Act 2003-1119 entered in the French registers of children aged under 18 years, includ- of 26 November 2003 on control of civil status.” (Article 17(4) of the 2003 ing legally adopted children. Family immigration, residence of foreigners Act amending Article 12 bis of Order reunification procedure does not in France and nationality, published No. 45-2658 of 2 November1945). apply to the families of nationals of in the official gazette on 27 November “Renewal of the residence permit EU and EEA members or Togo. 2004. issued pursuant to paragraph 4 above To qualify for family reunification, The order sets various require- shall be subject to cohabitation’s not the applicant must have been living ments for entry and residence of for- having ceased. If cohabitation has continuously in France for at least eigners: been interrupted on the initiative of one year and must have a residence “Any foreign national aged over 18 the foreign national on the grounds of permit (or a receipt for an application years who wishes to reside in France marital violence perpetrated by his or for renewal of permission to reside, must, on expiry of a three-month her spouse, the chief country admin- valid for at least one year). Under the period following his or her entry to istrative officer, or in Paris the Com- Franco-Algerian Agreement of 28 French territory, obtain permission to missioner of Police, may still allow December 1968 an exception is made do so. This will take the form of the permit to be renewed.” (Article 17 for Algerian applicants, who do not either a temporary permit […] or a of the 2003 Act amending Article 12 have to meet the condition of one residence card […]. Where the law so of the 1945 Order) year’s residence. provides, initial permission to reside The title “Foreign nationals hold- The applicant must have accom- shall be subject to the foreign ing residence cards” includes the fol- modation regarded as normal for a national’s republican integration into lowing provision: “Residence cards comparable family living in France. If French society, which shall be may be granted to the spouse, and to the applicant does not have accom- assessed, in particular, in the light of children who are minors or not yet modation when the application is his or her knowledge of the French aged 19, of a foreign national holding submitted, he or she may include language and of the principles gov- a residence card if they have been with the application a promise to erning the French Republic. […] In authorised to reside in France for the acquire it for the family’s arrival. The assessing whether the integration purpose of family reunification and size of the accommodation must be requirement has been met, the gov- meet the requirement of at least two appropriate for the composition of ernment’s representative at départe- years’ continuous residence in the family and must meet the mini- ment [county] level, or in Paris the France in accordance with current mum standards for rented premises. Commissioner of Police, may consult laws and regulations. […] The deci- This provision does not apply to Alge- the mayor of the municipality in sion to grant a residence card shall be rian nationals. which the applicant for permission to subject to the applicant’s republican The applicant must prove that he reside is living.” (Article 6) integration into French society in or she has stable and regular Under the title “Foreign nationals accordance with Article 6.” resources sufficient to meet the fam- holding temporary permits” it is pro- The provisions for family reunifi- ily’s needs. For purposes of this calcu- vided: “A temporary residence permit cation34 have been amended to the lation all the resources of the appli- bearing the designation ’Private and effect that foreign nationals who have cant and his or her spouse are taken family life’ shall be issued as of right permission to reside in France and into account, independently of any to a foreign national not living in a family benefits. An income greater state of polygamy who is married to a 34. Instruction DPM/DM2-3/2000/114 – NOR/ than the national minimum wage is French national, on condition that he INT/D/00048/C of 1 March 2000 on family considered sufficient. The form of or she has entered French territory reunification in respect of foreign nationals proof required is evidence of earn- (Ministry of the Interior/Ministry for lawfully, that the couple have not Employment and Solidarity, Journal offi- ings over the 12 months preceding ceased to cohabit, that the spouse has ciel, 28 May 2000. the application.

Appendix 2: Working documents : France 85 The applicant must certify that the wait for two years after celebration of The effect of such a step should not family reunification applied for will the marriage before signing a declara- be to increase unnecessarily the not create a situation of polygamy in tion at the regional court in order to burden of proof on those concerned, France. acquire French nationality. The wait- particularly where the applicant has When the application is approved ing period is extended to three years entered France recently, immedi- the family members will receive the if the foreign spouse cannot prove ately following a marriage celebrated same form of permission to reside as that he or she has resided continu- abroad or shortly before a planned is held by the foreign national who ously in France for at least a year marriage in France, and the proce- made the application. since the marriage. dural requirements have been met.” The declaration must be registered If a couple ceases to cohabit, a Temporary residence permits and cohabitation by the government minister responsi- temporary residence permit issued to “The statutory length-of-marriage ble for naturalisation (the Minister for the spouse of a foreign national may requirement for eligibility for resi- Employment and Solidarity). Regis- be withdrawn in the two years follow- dent status having been extended to tration may be refused. The spouse ing its issue, or an application to two years, you must check, when a must not have been convicted of any renew it may be refused. If cohabita- temporary permit is renewed for the offence or have been subject to an tion ceases before permission to first time and again when resident expulsion order, and he or she must reside has been issued, the chief status is granted, that the cohabita- demonstrate assimilation into the country administrative officer, or in tion requirement is met.” community in France, notably by Paris the Commissioner of Police, Cohabitation is proven by submis- having an adequate command of shall refuse to issue a temporary per- sion of any document establishing French. mit. If, however, cohabitation has that the spouses lead a shared life. been interrupted on the initiative of Circular NOR/INT/D/04/00006/ Couples are also required to sign a the foreign national on the grounds of C, of 20 January 2004, from the Min- sworn declaration. The cohabitation marital violence perpetrated by his or istry of the Interior, Internal Security condition does not necessarily her spouse, the chief country admin- and Local Freedoms to Chief County require the spouses to live under the istrative officer may allow the permit Administrative Officers [préfets] in same roof (Article 108 of the Civil to be renewed. metropolitan France and the overseas Code). départements and territories gives Under the Act of 26 November “Under Article 17(7), applications details on several issues, in particular 2003, contracting a marriage of con- for renewal of residence permits by marriages of foreign nationals with venience has become an offence foreign nationals who have ceased to French spouses, mixed marriages cel- (Article 31). The Act creates a new cohabit for fear of marital violence on 35 ebrated outside France and offence of Section 21 quater of the Order of 2 the part of a French spouse should marriage of convenience. November 1945, which states: “The nonetheless receive sympathetic fact of contracting a marriage for the Marriages of foreign nationals with treatment.” sole purpose of obtaining, or enabling French spouses another person to obtain, a residence Residence cards and integration contracts permit or for the sole purpose of Temporary residence permits bearing the designation Article 21 of the 2003 Act amends acquiring, or enabling another person “private and family life” (Article 17 of the act) the conditions for issue of a residence to acquire, French nationality is pun- “To counter the spread of mar- card under Article 14 of the Order. ishable by five years’ imprisonment riages of convenience, paragraph 4 of “Issue of a residence permit shall and a fine of EUR 15 000. The same the new Article 12 bis provides that be subject, in all cases, to an integra- penalties apply to arrangement or foreign nationals married to French tion requirement under Article 6 of attempted arrangement of a marriage nationals may now be asked to meet the Order. The aim is to assess the for the same purposes, and they shall a requirement of continuing cohabi- nature of the foreign national’s inten- be increased to 10 years’ imprison- tation from the date of issue of the tion in applying for residence by ment and a fine of EUR 750 000 if the temporary residence permit. Proof of asking him or her to engage in a proc- offence is committed by an organised continuing cohabitation may, in most ess of social and occupational integra- gang.” cases, take the form of a sworn decla- tion in France based on a number of Acquisition of nationality through ration signed by both spouses, in the criteria: learning the language, marriage requires a number of condi- presence of your representative, that becoming familiar with and observ- tions. they have not ceased to cohabit. In ing the main principles of the French cases where cohabitation is in doubt Republic, placing his or her children A foreign national married to a (eg where a marriage took place some in school, undertaking occupational French person may obtain French considerable time previously and the training and becoming involved in nationality through a mere declara- applicant has just recently entered the life of the local community. The tion procedure. the country or submitted the applica- mayor of the municipality in which The foreign spouse must have per- tion, or where the marriage is con- the foreign national lives may be con- mission to reside in France and must tracted by a foreign national illegally sulted on this last point. Applicants present in the country), additional for residence permits can be asked to 35. Currently Articles 621-1 to 621-3 of the Code of foreigners’ entry into and residence in proof or even a police check may be sign an ’integration contract’. The aim France and asylum right. required for a permit to be issued. of the measure is to combat all forms

86 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives of community-based narrow-minded- in doubt, the interview can be dis- Mixed marriages celebrated outside ness by encouraging vulnerable pensed with. France groups of people, particularly women Article 75 of the 2003 Act amends in certain communities, to commit Role of the public prosecution service, mayors and Article 170 of the Civil Code, intro- themselves to such a process [of inte- chief county administrative officers (“préfets”) ducing a requirement (modelled on gration].” Article 76 of the 2003 Act amends that contained in Article 63 of the Article 175-2 of the Civil Code, on code as amended by the same Act) Family reunification and verification of cohabitation procedure open to civil authorities that intending spouses present them- for two years (Article 42(6)) and the public prosecution service for selves at least once at the French “If cohabitation ceases before per- opposing suspected marriages of con- embassy or consulate, where they mission to reside has been granted, venience in France. may be interviewed together or sepa- you must refuse to issue the permit. rately: they may do so when they However, the Act creates the possibil- The principle still holds that the apply to have the marriage banns ity of granting renewal of a residence civil authority may report to the published, when the French national permit for the spouse of a foreign public prosecution service any cases receives his or her certificate of mari- national who, due to marital violence, where marital intent is suspect. That tal capacity (not the marriage certifi- can no longer meet the cohabitation an intending spouse is in breach of cate), or when the marriage is requirement. Difficult situations of the law on residence requirements is entered in the civil register. that kind must be considered in the not an automatic reason for notifying light of the available documentary the service. Nonetheless the Consti- New offence of marriage of convenience evidence. You must take particular tutional Council has clearly taken the (Article 31) account, while still giving careful view that the fact of unlawful resi- “Each time you encounter a sus- consideration to each case, of infor- dence may, in conjunction with other pected case of marriage of conven- mation supplied by associations that aspects of a case, be regarded as ience, you must ensure that you work with foreign nationals, particu- indicative that a marriage may be one inform the public prosecution service larly women. This measure is to have of convenience. This means it is a so that an inquiry can be conducted immediate effect.” factor that can be taken into account with a view to possible prosecution Role of civil authorities and the in decisions at municipal level. Chief on the basis of the new Article 21 authenticity of marital intent county administrative officers will quater. I would remind you that nei- The provisions of the Civil Code in support all relevant action taken in ther a criminal conviction for this relation to marriage have been cases where marital intent is in offence nor annulment of the mar- amended. In the case of marriages doubt. riage on the basis of Article 146 of the celebrated in France, Article 74 of the Where a case is referred to it the Civil Code is a prerequisite for your 2003 Act has added a requirement to public prosecution service has 15 refusing to issue or renew a residence Article 63 of the Civil Code that civil days in which either to let the mar- permit for the foreign spouse of a authorities interview intending riage go ahead or conduct a fuller French national if it is established spouses before any marriage is cele- investigation and therefore postpone that the rules have been broken.” The brated. The purpose of the interview the marriage. The service’s interim Conseil d’État ruled in its opinion of 9 is to check well before the marriage decision and the reasons for it must October 1992 (Abihilali) that if the ceremony that the couple’s marital be communicated to the civil author- rules had clearly been broken to gain intent is genuine. The intending ity and the parties concerned, as benefit of public-law provision, the spouses may be interviewed sepa- must the final decision after investi- administrative authorities had a rately or together. Where they are gation. The time allowed for the responsibility to prevent that out- unable to attend such an interview, or investigation is one month, with a come even where the breach of rules where it is clear from documents sub- possible extension of a further took the form of a private-law transac- mitted that their marital intent is not month. tion.

7. Policies and approaches

Under anti-discrimination legisla- bound by professional confidential- tims of their rights with regard to tion passed on 16 November 2001, tel- ity. applying for compensation and ephone help lines for victims of racial Provisions whereby victims are taking civil action. If criminal pro- discrimination were set up in each entitled to receive information from ceedings have been initiated – and département. In cooperation with the police officers and to obtain legal either a presumed perpetrator has assistance were included in the been charged in court or a case has courts and bodies already working to Framework Justice Act (“Perben Act”) been referred for criminal investiga- combat discrimination, a victim sup- passed on 9 September 2002. Under tion – the victim must be notified of port scheme was also set up at dépar- Section VIII of the Act (“Aid to Vic- the possibilities of legal representa- tement level. People who have been tims”) victims have a right to be tion and protection, of the option of forced into marriage can report their informed (see Articles 63 and 64). receiving help from a local authority problems through this system. The Police officers are required to use all service or an accredited victim-sup- anti-discrimination services are means at their disposal to inform vic- port association and of the possibility

Appendix 2: Working documents : France 87 of applying to the Criminal Injuries its aggravation became apparent. Act Elele, an officially registered asso- Compensation Committee (CIVI). 98-468 of 17 June 1998 lays down an ciation was set up to promote integra- Under Article 65 of the Act, the vic- exception to this rule by extending tion of Turkish communities in tim’s entitlement to legal aid is no the time limit to 20 years if the injury France. Active in Ile-de-France and longer subject to means testing. was caused by torture of, barbarity other regions, it is involved in a range A duty on schools to report cases towards or assault or sexual assault of activities: running social advice of sexual violence was introduced by on a minor. centres, handling legal cases relating an official instruction on the subject to the law on foreign nationals, organ- GAMS – the Groupe des Femmes (Instruction 97-175 of 26 August 1997 ising training and awareness-raising, pour l’Abolition des Mutilations Sex- to chief education officers, heads of taking part in national and interna- uelles [Women’s Group for the Aboli- county education services and school tional events, running information tion of Genital Mutilation and other principals). sessions for Turkish workers and Traditional Practices Affecting the The département of Seine Saint- their families, educational and cul- Health of Women and Children] – Denis organised a special training tural activities, and research. The which is the French section of the course (“Preventing the practice of association encounters many cases of Inter-African Committee (based at 66 forced marriage: an initial training forced marriage. (e-mail: contact@ Rue des Grands-Champs, Paris 20), course for social services staff who elele.info) works to support the women con- work with schoolchildren”). Designed “Voix de Femmes”37 is a non-profit cerned and to raise awareness. It is an jointly by the county council, the association (under the law of 1901), officially registered association education service and the Délégation which was set up in 1998 and aims to whose members are African and aux Droits de la Femme et à l’Egalité assist anyone faced with the problem French women with expertise in [Women’s Rights and Equality Com- of forced marriage. health, social work and education, mittee] of the Ile-de-France Region, It has two objectives: and a wealth of experience in the the course programme was published • offering counselling and support area of prevention. GAMS is financed in 2002 as “Forced marriages – cul- services for victims, by the Women’s Rights Service and tural aspects and legal remedies”. • awareness-raising, information the Social Action Fund. Set up in Paris services and training in preven- Voix d’Elles-Rebelles, an associa- in 1982, it is recognised as the French tion of forced marriage. tion based at Cité Gabriel Péri, 1 section of the Inter-African Commit- The association targets persons Place Lautréamont in Saint-Denis tee (IAC). The IAC has four groups or directly concerned by a forced mar- (93200), sets up projects aimed at pre- sections in Europe. venting forced marriages, organises riage, that is to say the victims, information sessions about women’s “Ni Putes, Ni Soumises” [“Neither whether minors or adults, and mem- rights, family codes in immigrants’ whores nor slaves”] is a working-class bers of their family, school or cultural countries of origin and different reli- movement that developed out of the circle, as well as public opinion and gions, and offers a psychological sup- Women’s March against Ghettoes and agencies, that is to say professionals port service run by five volunteer for Equality which took place across and social workers active in both the therapists. France from 1 February to 8 March public and the voluntary sectors who A film entitled Forced marriage was 2003. Chaired by Fadéla Amara, the are likely to come into contact with made. It showed an extract from a movement works through 51 local persons who are victims of or threat- play written and acted by girls study- committees with a view to respond- ened with forced marriage. ing health and social care at Sabatier ing more effectively to needs at grass- Young women forced into mar- Vocational High School in Bobigny roots level. riage are stigmatised on both counts, (Seine Saint-Denis), and included (e-mail:[email protected]) as women and members of a given interviews with people working in immigrant community, and accord- The ASFAD, an association that the field. Since 1998 the film has been ingly suffer twofold discrimination. grew out of the International Net- used on training courses for both “Voix de femmes” runs the following work for Solidarity with Algerian school students and social workers. activities in an attempt to counter Women (RISFA), set up on 5 July this dual discrimination: A project on prevention of forced 1995, is an advice and guidance • an intercultural information, docu- marriages was undertaken at Eugène centre for women of North African mentation and resource centre. Delacroix Vocational High School in origin who find themselves in diffi- The association offers the public Drancy, Seine-Saint-Denis – an area culty: it offers support with adminis- tools (legislation, sociological papers, officially classed as “sensitive”. The trative and legal procedures and pro- documentaries, feature films in the project was assisted by the associa- vides information, in particular with original language version, plays, etc.) tion GAMS and included a showing of regard to forced marriages. (e-mail: for understanding the specificities of Forced marriage, followed by a discus- [email protected]) sion between members of GAMS and the custom of forced marriage. The 36 aim is to avoid the cultural relativism the 150 students who took part. 36. See Caroline Durand,“Prévention des ma Under Article 2270-1 of the Civil riages forcés : que retiennent les Code, actions for non-contractual lycéen(ne)s des actions de prévention sur 37. Maison de Quartier des Linande, Place des les pratique des mariages forcés conduites Linandes beiges, F 95000 CERGY, tel..: civil liability are barred when ten au sein d’établissements scolaires?”, post- (+33) 01 30 31 55 76 , fax. : +3301 30 32 84 years have elapsed since the injury or graduate dissertation, op. cit. 67, [email protected]

88 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives and stigmatisation that lead to dis- • reception and counselling serv- in countering this practice for many crimination based on gender and pos- ices. years now; sibly religious background; • support and assistance activities. Persons who contact the associa- The focus is on both prevention • awareness-raising, information tion emphasise the importance of and remedies. The association assists and training activities. being able to find a sympathetic ear young women in fear of being forced The association participates in or within an organisation which deals into marriage and also those who are organises information, awareness- solely with victims of forced mar- already victims and wish to end the raising and training activities at the riage, which they may visit as often violence they suffer and lead an inde- request of agencies and public bodies as necessary in order to come to a pendent life. Voix de Femmes sup- or on its own initiative. These activi- decision, whatever it may be. Voix de ports and/or assists them in the ties are pursued in co-operation with Femmes is indeed the only associa- administrative, legal and social fields voluntary and public sector partners tion in France with the specific aim of with applications for annulment or in a number of project areas: organi- combating forced marriage, but it divorce, provides assistance in find- sation of debates in schools and social must be pointed out that other associ- ing emergency or temporary accom- centres, training courses for social ations (Elélé, GAMS, AFAVO and modation and sets up family media- workers, and so on; SAFIA, for instance) have been active tion arrangements.

Germany

1. International agreements

• The United Nations Convention of force on 3 September 1981 in and Cooperation in respect of 7 November 1962 on Consent to accordance with the provisions of Parental Responsibility and Meas- Marriage, Minimum Age for Mar- Article 27, was signed on 10 July ures for the Protection of Children, riage and Registration of Mar- 1985 and has been ratified. which entered into force on 1 Jan- riages, which came into force on 9 • The 1989 United Nations Conven- uary 2002, amends the Convention December 1964 by exchange of let- tion on the Rights of the Child was of 5 October 1961 concerning the ters. Germany adopted the Con- signed on 6 March 1992 and has Powers of Authorities and the Law vention on 9 July 1969. been ratified. Applicable in respect of the Protec- • The Convention on the Elimina- • The Convention of 19 October tion of Minors. tion of All Forms of Discrimination 1996 on Jurisdiction, Applicable against Women, which came into Law, Recognition, Enforcement

2. Provisions in private international law

The main source of current so by the state of which one of the replaces the national law of the German private international law is intending spouses is a national. A intending husband or wife when the the Introductory Act to the German purely religious marriage is deemed following three requirements are Civil Code (EGBGB). Its original ver- to be matrimonium non existens. With met: sion, promulgated in 1896, is still in regard to marriages celebrated out- • one of the intending spouses is of force. It incorporates the Federal Act side Germany, the formal require- German nationality or resides of 25 July 1986, introducing codifica- ments are those of either the lex loci habitually in Germany; tion of private international law,38 as actus or the lex causae. Thus, Article well as amendments passed in 1999. 11(1) EGBGB applies. Religious mar- • the intending spouses have taken With regard to marriages cele- riage has effect in civil law if it is all the steps they might reasonably brated in Germany, it is a formal authorised by the law of the place of be expected to take with a view to requirement under Article 13(3), first celebration removing an impediment to the sentence, of the EGBGB that a civil With regard to substantive require- marriage; authority should officiate, as a matter ments, the validity of marriage is gov- • refusal to celebrate the marriage is of public policy. The only exception erned by the national law of the incompatible with the freedom to is marriage of foreign nationals cele- intending spouses. When they are of contract marriage. brated by an agency authorised to do different nationalities, the two sets of national legal provisions are applied The application of foreign law in 38. Federal Act of 25 July 1986; for commentary distributively (Article 13(1) EGBGB). Germany can be refused if it is con- see Rev. crit. DIP, 1987, p. 1 et seq. See also, in the same publication, articles by F. On the basis of the guarantee of trary to German public policy (ordre Sturm, “Personnes, familles et successions freedom to contract marriage con- public). For the same reason a mar- dans la loi du 25 juillet 1986 portant réforme tained in Article 6(1) of the German riage contracted abroad can be du droit international allemand”, and J. Basedow, “Les conflits de juridictions dans la Basic Law [constitution], Article 13(2) regarded as void by German public réforme du droit international privé allemand”. EGBGB stipulates that German law authorities.

89 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives 3. Provisions in civil law

A distinction is made in German may males or females marry before when it is celebrated, along with two law between legal personality and they reach the age of 16. witnesses. They must declare, in the legal capacity. Legal personality con- A minor’s representative may presence of the civil authority, their sists in having rights and obligations refuse to allow a marriage only with intent to be bound to one another. while legal capacity means capacity good reason, and if it is so, there Religious marriage may be celebrated to enter into legal agreements. Legal cannot be a court ruling in place of after civil marriage. capacity may be limited or full. Full the representative’s consent. capacity is acquired at 18 years of 3.4. Annulment of marriage 3.2. Consent age. A marriage is liable to be annulled Article 6(1) of the German Basic It is an absolute condition for the under the conditions laid down in Law enshrines the fundamental right validity of a marriage that the intend- Section 1314 BGB. to marry, consisting in unimpeded ing spouses should consent to it A marriage can be annulled only access to marriage and the right to freely and voluntarily. by a judgement of the court (Section marry the partner of one’s choice. Error, deception and unlawful 1313 BGB). German family law was reformed threat are deemed to vitiate consent. in 1975. The generally accepted definition of According to the conditions laid threat is “the prospect of harm willed down in Section 1315 BGB, an annul- 3.1. Marital capacity by the person making the threat”. The ment is not possible even if the mar- Under the Civil Code, marriagea- threat must be such as to put the riage does not meet the necessary ble age is 18 years, the age of legal person declaring consent under psy- legal requirements. For example: if majority (Civil Code [BGB] Section 2, chological duress. In cases of irresist- one spouse had not reached the age 1303-1). ible physical duress, no declaration of of 18 years and the marriage had not Exceptionally, the family court consent is deemed possible. been authorised by the court, the may authorise a marriage if one of marriage cannot be annulled if the the parties to it is of legal age and the 3.3. Celebration of marriage spouse declares his or her intention other is in his or her sixteenth year For a marriage to be valid, both to continue the union after he/she (Section 1303-2 BGB). In no event parties must be present in person reached the age of 18.

4. Protection measures

Under Section 1666(1) of the Civil reactions might appear excessive.40 to separate the child from the family, Code the court must take necessary There is no justification, however, for at least temporarily. measures if a child’s physical, psy- forms of duress affecting substantive The family court can act on its chological or mental wellbeing or legal rights – including specifically own authority in taking such meas- integrity are threatened by abusive coercion to bring about a marriage to ures under Sections 1666 and 1666a. 41 treatment on the part of a parent, by which the child is opposed. Consequently, it may make an appro- neglect or lack of care or by the In cases where parents seek to priate order without having received behaviour of a third party where the marry a child against his or her any formal request for it, where it has child’s parents are not able or willing wishes, the family court must take been alerted by, for instance, friends, to remove the danger. the necessary measures to avert the neighbours or a child protection If the families involved in such danger, as provided in Section agency. If urgent intervention is cases are foreign nationals living in 1666(1) of the Civil Code. Measures needed – for example, if a child is Germany, the courts are also sup- available under this provision range about to leave to be married – the posed to act in a way that takes from injunctions and prohibition court may issue injunctions under account of the attitudes and values of orders to the complete or partial with- Section 1666 to ensure the child’s the relevant foreign cultural and legal drawal of custody. Under Section safety and protection. systems.39 This implies concessions 1666a(2) of the Civil Code, custody of The Protection of Victims of Vio- with regard, for example, to forms of the child may be withdrawn com- lence (Improvement) Act of 14 communication and reasons for cer- pletely if other measures have failed December 2000 empowers the civil tain behaviour. A teenage Turkish or if they are deemed insufficient to courts, in response to applications girl, for instance, will be more sub- eliminate the risk. In order to give from persons who have suffered missive to her parents than a young children effective protection from physical violence, to take whatever German girl would be in matters of marriage, it is necessary in many measures may prevent their repeti- dress and conduct. In the eyes of cases to withdraw parental rights and tion, and in particular to bar an German parents, foreign parents’ aggressor from the home of the vic- 40. See Staudinger/ Coester, ibid. tim, from places that the victim fre- 39. See Staudinger/ Coester, BGB, 13th edition 41. See Staudinger/ Coester, ibid., 2000, section 1666, paragraph 144, FLG Ber- paragraph 145, OLG Cologne, NJW-RR-2001, quents and from making contact with lin FamRZ 1983, 943. 221. the victim.

90 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives 5. Provisions in criminal law

5.1. Classification of forced marriage Since July 1997, the Criminal Code tion service cannot institute proceed- has included a provision punishing Since 19 February 2005 forced ings until the victim makes a com- rape within marriage. marriage is mentioned under section plaint, it can begin an investigation 240 (4) of the Criminal Code as an 5.2. Prosecutions in cases of forced on its own initiative and indeed can especially serious case of coercion. marriage place a suspect in preventive deten- For this provision to apply, the victim Under German law, prosecutions tion in order to ensure that he or she must have been unlawfully forced to for offences involving domestic vio- does not abscond and evidence does marry through the use of violence or lence are brought by the state not go missing. For example, in case threat. Serious cases of coercion are through the public prosecution serv- of bodily injury, (Section 223), victim punishable by imprisonment from six ice. The public prosecution service months to five years. takes action as soon as an offence must make a complaint. Where an Depending on the circumstances comes to light, irrespective of the assault is suspected, however, the in individual cases, there may be fur- wishes of the victim. public prosecution service may act ther charges of wounding (Section The principle whereby the state on its own initiative if it considers it is 223 of the Criminal Code), false initiates proceedings without regard in the public interest to do so. In case imprisonment (Section 239), sexual to the victim’s wishes is not absolute, of serious bodily injury (Section 226) coercion or rape (Section 177), traf- however, particularly as, with some ficking in human beings for the pur- offences, prosecution depends on the or dangerous bodily injury (Section pose of sexual exploitation (Section victim making a complaint. In such 224), a victim’s complaint is not 232). cases, although the public prosecu- required.

6. Provisions of the law on foreign nationals The Residence Act of 30 July 2004, dence permit, it may be granted to ble social discrimination in their which came into force on 1 January the spouse at the discretion of the country of origin as a consquence of 2005, introduced numerous amend- authorities. the dissolution of their marriage. ments to the legislation on foreign The residence permit can be For family reunification to nationals. In particular it changed the refused to the spouse or another German nationals, fewer conditions rules for family reunification, which member of the family if they depend have to be fulfilled by the foreign was previously governed by the 1990 on social allowances. According to spouse in order to receive a residence Aliens Act. administrative guidelines the spouse permit or a permit of unlimited dura- Because Acts of Parliament simply is granted a one-year residence tion. lay down general rules which it is the permit which, after one year, is Regarding EU nationals, the rele- task of the Länder [federal states] to renewable every two years. For the vant regulations of EU law do apply. implement, administrative guidelines first four years, the permit cannot be The Nationality Act 1913, as of the federal government seek to valid for longer than the permit held amended in 2005, provides that for- ensure uniform interpretation. The by the foreign national who made the eign spouses of German nationals are guidelines on implementing the Resi- reunification application. After five granted German nationality through dence Act have not yet been adopted. years a permit of unlimited duration naturalisation if they make the appro- The Residence Act establishes the may be granted once the general con- priate application and fulfil certain principle of family reunification ditions for the grant of a permanent conditions in relation to morality and based on the constitutional protec- residence permit have been met. integration. tion afforded to marriage and the In the event of termination of mar- Naturalisation in the case of family. The foreign spouse of a for- ital cohabitation the spouse has an spouses of German citizens consti- eign national is entitled to be granted independent right of residence, if the tutes a right. a residence permit if the foreign spouses have cohabited in Germany The reform of the nationality law national either: for at least two years, or if this is nec- which came into force on 1 January • holds a residence permit (Nieder- essary to avoid particular hardship, 2000 provides for an entitlement to lassungserlaubnis); for example, because the continua- naturalisation for foreign nationals • has held a residence permit tion of marital cohabitation or the who have lawfully had their habitual (Aufenthaltserlaubnis) for five return to the country of origin would residence in Germany for eight years. years, or; be unreasonable. In case of death of If a foreign national is entitled to nat- • was married when the residence the foreign national, the independent uralisation, his or her spouse may permit was granted and intends to right of residence is granted immedi- also be naturalised at the same time live there for at least a further ately. Administrative guidelines pre- after a shorter period of lawful resi- year. sume such a hardship in the case of dence. Any naturalisation requires If the foreign national holds a resi- women who were ill-treated or that the applicant holds a valid resi- dence permit and the foreign spouse deprived of their liberty by their hus- dence permit, observes the constitu- is not entitled to be granted a resi- band or who would suffer considera- tional values of the Basic Law, has not

Appendix 2: Working documents : Germany 91 been convicted of a criminal offence, The original nationality may be applicant fulfils the requirements. has a home, is integrated into the retained, however, if renunciation is Additional investigation may be car- national community and able to impossible or particularly difficult ried out. If it is refused, however, the speak German, and is capable of under the legislation of the country of applicant has the option of appeal to meeting his or her needs and those of origin. the administrative courts. the family. Applications for naturalisation are Naturalisation is subject to renun- submitted to the administrative ciation of one’s original nationality. authorities, which check that the

7. Policies and approaches Victims of marital violence are place or that where the victim federal authorities are keen to entitled to compensation under the resides. Central government meets improve cooperation between all the Victim Compensation Act of 7 Janu- 40% of the resulting cost to the agencies involved in combating ary 1985. The amount of compensa- Länder. The Land is empowered to forced marriages. They are working tion is determined under the provi- recover the amounts involved from to raise police awareness of the prob- sions of the Federal Assistance Act, the party responsible in civil law. lem by means of training and ration- the law which is the basis for com- Germany has a well developed pensation of war victims. network of sheltered accommodation alisation of police methods in the rel- It provides for financial support to and many support facilities, notably evant areas. cover the cost of necessary medical advice centres and telephone help treatment. lines. The federal government also The compensation is paid out by Applying experience gained in wants to see help measures intro- the Land in which the violence took Berlin between 1995 and 1999, the duced for aggressors.

Hungary

1. International agreements • The United Nations Convention of force on 3 September 1981 in Law, Recognition, Enforcement 7 November 1962 on Consent to accordance with the provisions of and Cooperation in respect of Marriage, Minimum Age for Mar- Article 27, was signed on 22 Parental Responsibility and Meas- riage and Registration of Mar- December 1980 and has been rati- ures for the Protection of Children, riages, which came into force on 9 fied. which entered into force on 1 Jan- December 1964 by exchange of let- • The 1989 United Nations Conven- uary 2002, amends the Convention ters. Hungary adopted the Con- tion on the Rights of the Child was vention on 5 November 1975. signed on 8 October and has been of 5 October 1961 concerning the • The Convention on the Elimina- ratified. Powers of Authorities in respect of tion of All Forms of Discrimination • The Convention of 19 October the Protection of Minors. It was against Women, which came into 1996 on Jurisdiction, Applicable signed on 4 July 2005.

2. Provisions in private international law

3. Provisions in civil law Article 15 of the constitution pro- ments) lays down formal prerequi- 3.3. Celebration of marriage vides that the Republic of Hungary sites for marriage. protects the institutions of marriage The Act also requires that both and the family. Particular importance 3.1. Marital capacity partners should be present in the is attached to the safety and upbring- Marriage partners must be adult marriage registry office for celebra- ing of young people and protecting (i.e. aged 18 or over, or, exceptionally tion of the marriage. their interests. Under Article 66 of and with the authorisation of a court, the constitution, also, men and aged 16 or over). 3.4. Annulment of marriage women are equal in all civil, political, economic, social and cultural rights. 3.2. Consent A marriage is not valid if one of the The Family Act (Act 4, 1952, which Marriage requires the declared partners was in a state of incapacity has undergone a number of amend- mutual consent of the partners. when it took place.

4. Protection measures Particular attention is paid in Hun- tion of children’s rights and the pre- The Criminal Code provides for heav- garian law and policies to the protec- vention of violence and child abuse. ier penalties to be imposed where

92 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives offences such as rape (Section 197) or offence, or attempts to do so or to cor- tor or is being raised, supervised, indecency (Section 198 et seq.) are rupt the minor, is punishable in cared for or treated medically by the committed against children. accordance with sub-section (1). perpetrator. However it also lays down certain The section of the code on seduc- Section 202 of the code provides: offences that are punishable specifi- tion (Section 201) includes the follow- (1) a person who induces someone cally in the interests of protecting ing: under 14 years of age to have sexual child victims, namely placing a minor (1) a person who has sexual rela- relations or engage in fornication in danger (Section 195), seduction tions with someone under 14 years of with a third person is guilty of an (Article 202) and pornography (Arti- age, or a person over 18 years of age offence and liable to imprisonment cle 195(a)). who engages in fornication with a for between one and five years; Chapter 14 of the code, on crimes person under 14 years of age is guilty (2) a person over 18 years of age against the family, youth or sexual of an offence and liable to imprison- who attempts to induce someone morality, includes the following pro- ment for between one and five years; under 14 years of age to have sexual visions on placing a minor in danger (2) a person over 18 years of age relations or engage in fornication (Section 195): who attempts to induce someone with a third person is guilty of an (1) a person who has a duty to under 14 years of age to have sexual offence and liable to imprisonment bring up, supervise or care for a relations or engage in fornication for up to three years; minor and who seriously breaches with him is guilty of an offence and (3) the penalties are respectively his obligations […], thus endangering liable to imprisonment for up to three two to eight years’ imprisonment and the minor’s physical, intellectual or years; one to five years’ imprisonment if the moral development, is guilty of an (3) the penalties are respectively party injured by the offences referred offence and liable to imprisonment two to eight years’ imprisonment and to in sub-sections (1) and (2) is a for between one and five years; one to five years’ imprisonment if the member of the family of the perpetra- (2) except where a more serious party injured by the offences referred tor or is being raised, supervised, offence has been committed, an adult to in sub-sections (1) and (2) is a cared for or treated medically by the who induces a minor to commit an member of the family of the perpetra- perpetrator.

5. Provisions in criminal law

5.1. Classification of forced marriages ticular, life, the person or sexual free- With regard to indecency (Section Although there is no specific crim- dom). 1998): inal offence of forced marriage, Hun- With regard to rape, Chapter 14 of • anyone who, by means of violence garian law does have certain offences the code, on crimes against the fam- or direct threat to the life or body relevant to forced marriage. ily, youth or sexual morality (Section of another, forces that person to Prosecutions can be brought for 197), includes the following provi- engage in fornication or who takes offences including threatening sions: advantage of another’s inability to behaviour within the meaning of • anyone who, by means of violence defend themselves or indicate Article 174 on constraint (“A person or direct threat to the life or body willingness or otherwise to engage who forces another by means of vio- of another, forces that person to in sexual relations, is guilty of an lence to commit, refrain from or be engage in sexual relations or who offence and liable to imprison- subjected to an act and who thus takes advantage of another’s ina- ment for between two and five occasions significant harm is guilty of bility to defend themselves or indi- years; an offence and – unless another cate willingness or otherwise to • the penalty is imprisonment for offence is involved – is liable to engage in sexual relations, is guilty between five and ten years if: of an offence and is liable to imprisonment for up to three years.”) – the victim is under 12 years of age; There are a number of provisions imprisonment for between two – the victim is being raised, super- in the Criminal Code in relation to and eight years; vised, cared for or treated medi- violent offences against family mem- • the penalty is imprisonment for cally by the perpetrator; bers or children. They provide a basis between five and ten years if: for prosecution and punishment of – the victim is less than 12 years old; – a number of persons fornicate sex offences and/or the abuse of – the victim is being raised, super- with the victim on the same occa- women or children. Since the Crimi- vised, cared for or treated medi- sion and in the knowledge of one nal Code was amended in 1997, rape cally by the perpetrator; another’s actions; or sexual assault committed within – there is more than one perpetra- • the penalty is imprisonment for marriage are criminal offences. tor; between five and 15 years if the To s u m m a r i s e, Hungarian crimi- • the penalty is imprisonment for provisions of sub-section (2) (b) or nal law contains no specific provi- between five and 15 years if the (c) apply and the sexual assault is sions punishing forced marriage as an provisions of sub-section (2) (b) or committed against a person under offence sui generis. Forced marriage (c) apply and the rape is commit- 12 years of age. may, however, involve constraint or ted against a person under 12 A further interpretative provision various other offences against, in par- years of age. is relevant, namely that:

Appendix 2: Working documents : Hungary 93 • a person under 12 is deemed inca- (1) anyone who deprives another them to forced work is guilty of an pable of self-defence for the pur- of personal freedom is guilty of an offence and liable to imprisonment poses of Sections 197 and 198. offence and liable to imprisonment for between two and eight years. Under Chapter XII, “Crimes for up to three years; 5.2. Prosecutions in cases of forced against persons”, Title II(I), “Crimes (2) anyone who acquires another marriage against personal freedom and human person through human trafficking dignity”, infringement of personal and subjects them to continued depri- freedom is an offence (Section 175): vation of personal freedom by putting

6. Provisions of the law on foreign nationals

7. Policies and approaches

Ireland

1. International agreements

• The United Nations Convention of force on 3 September 1981 in Law, Recognition, Enforcement 7 November 1962 on Consent to accordance with the provisions of and Cooperation in respect of Marriage, Minimum Age for Mar- Article 27. Ireland adopted the Parental Responsibility and Meas- riage and Registration of Mar- convention on 23 December 1985. ures for the Protection of Children, riages, which came into force on 9 • The 1989 United Nations Conven- which entered into force on 1 Jan- December 1964 by exchange of let- tion on the Rights of the Child was uary 2002, amends the Convention ters. signed on 28 September 1992 and of 5 October 1961 concerning the • The Convention on the Elimina- has been ratified. Powers of Authorities and the Law tion of All Forms of Discrimination • The Convention of 19 October Applicable in respect of the Protec- against Women, which came into 1996 on Jurisdiction, Applicable tion of Minors.

2. Provisions in private international law

3. Provisions in civil law

Engagement, which is widely prac- the marriage at least three months days or 8 days follows depending on tised in Ireland, is not a contract con- before it takes place (unless a court whether marriage is by certificate or taining an obligation to marry. has granted an exemption from this licence. three-month notification require- 3.1. Marital capacity In addition, the Family Law Act ment). At present there is no require- 1995 requires under: Eighteen is the legal age for mar- ment to verify that couples meet the riage in Ireland, but an Act of 1995 conditions for marriage, it is simply • Section 31 that the minimum age provides that a marriage of a person necessary to forward to the civil at which a person, ordinarily resi- below this age can be permitted by a authority the certificate supplied by dent in the State, may contract a civil court. the minister of religion. marriage valid in Irish law be New legislation (see below) which eighteen years of age; whether the 3.2. Consent is expected to come into effect in marriage takes place in Ireland or While coercion or violence are not 2006 will require those undergoing elsewhere, subject to 3.1 above; specifically mentioned in any mar- religious marriages to provide the • Section 32 that any couple intend- riage legislation as factors which viti- same documentation to the civil ing to marry in Ireland must give ate a marriage contract the courts authorities prior to the marriage, as at least 3 months notice of such have consistently ruled that violence those undergoing civil marriages. marriage in writing to the Regis- or coercion before a marriage would Civil marriage law requires the trar of the district inwhich the render such a marriage void. couple to fulfil certain residency marriage is to be solemnised. requirements (either 7 days for a cer- 3.3. Celebration of marriage Ireland does not permit proxy tificate or 15 days for a licence). marriage, two witnesses and both Civil marriage can be celebrated in Immediately following completion of parties must be present. the office of the civil authority the residency period the couple must responsible for marriages. present themselves in person to the 3.4. Annulment of marriage Marriage may also be celebrated Registrar and submit identity papers before religious authorities but the such as passport and/or birth certifi- The High Court and the Circuit civil authority must receive notice of cate. A waiting period of either 22 Court can grant decrees of nullity.

94 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives 4. Protection measures A range of protection measure are 1996 and the Domestic Violence Act vide for the granting of Safety, Protec- available in Irish law, in particular (Amendment), 2002. These Acts pro- tion and Barring Orders. under the Domestic Violence Act,

5. Provisions in criminal law Comprehensive legislative meas- • the Non-fatal Offences Against the ished any rule of law by virtue of ures have been put in place which Person Act, 1997 (creates the which a husband cannot be guilty of combat violence against women and offence of harassment). the rape of his wife. criminalise such activity. Proceedings in serious crimes • the Domestic Violence Act, 1996 5.1. Classification of forced marriage such as rape are instituted on behalf and the Domestic Vio- There is no specific offence of of the State by the Director of Public lence(Amendment) Act, 2002; forced marriage. Prosecutions. • the Criminal Law (Rape) Act, 1981 and the Criminal Law (Rape) 5.2. Prosecutions in cases of forced (Amendment) Act, 1990 (criminal- marriage ises rape within marriage); Section 5 of the Criminal Law • the Sex Offenders Act, 2001; (Rape) (Amendment) Act, 1990 abol-

6. Provisions of the law on foreign nationals

7. Policies and approaches The Gardaí (police force) have put to domestic violence intervention, will integrate a human rights in place measures in relation to the which is currently being reviewed approach into policies on advancing investigation of crimes of domestic and updated. gender equality in Ireland. violence and sexual violence, in par- Ireland is currently working on a ticular the establishment of a Domes- National Women’s Strategy to be pub- The marriage laws are currently tic Violence and Sexual Assault Inves- lished this year and a strategic plan being updated under the Civil Regis- tigation Unit and the development of for the National Steering Committee tration Act 2004. It is expected that a written pro-arrest policy in relation on Violence against Women which this will be enacted in 2006.

Italy

1. International agreements • The United Nations Convention of force on 3 September 1981 in and Cooperation in respect of 7 November 1962 on Consent to accordance with the provisions of Parental Responsibility and Meas- Marriage, Minimum Age for Mar- Article 27, was signed on 10 June ures for the Protection of Children, riage and Registration of Mar- 1985 and has been ratified. which entered into force on 1 Jan- riages, which came into force on 9 • The 1989 United Nations Conven- uary 2002, amends the Convention December 1964 by exchange of let- tion on the Rights of the Child was of 5 October 1961 concerning the ters, was signed on 20 December signed on 5 September 1991 and Powers of Authorities and the Law 1963. has been ratified. Applicable in respect of the Protec- • The Convention on the Elimina- • The Convention of 19 October tion of Minors. tion of All Forms of Discrimination 1996 on Jurisdiction, Applicable against Women, which came into Law, Recognition, Enforcement

2. Provisions in private international law Articles 115 and 116 of the Civil from the competent authority in prohibited between brothers and Code: his or her own country certifying sisters), 87(4) (marriage prohibited • Article 115: An Italian citizen who that there is no impediment to the between first cousins), 88 and 89. wishes to contract a marriage marriage. The foreign national abroad must observe all the provi- must comply with the provisions This implies that foreign nationals sions in relation to marriage of the Italian Civil Code contained wishing to contract a marriage in including those concerning minor- in Articles 85 (mental incapacity), Italy are not subject to the rules on ity; 86 (he or she must not already be minority (Article 84) and that mar- • Article 116: A foreign national who married), 87(1) (marriage prohib- riages between uncles or aunts and wishes to contract a marriage in ited between direct ascendants nieces or nephews, as between adop- Italy must produce a statement and descendants), 87(2) (marriage tive parents and their adopted chil-

Appendix 2: Working documents : Italy 95 dren, are not prohibited if permitted that there should be a choice of juris- The 1995 Act stipulates that inter- by the law of the foreign country. diction in many situations. national agreements take precedence Act 218 of 31 May 1995, which over domestic law. With regard to the The requirements for marriage are came into force on 1 September 1995, application of foreign law by Italian governed by the national laws of the changed the position regarding the courts, it introduces the principle that intending spouses, applied distribu- application of private international the court is to identify the relevant tively. law. Setting in train a process of codi- provisions in the foreign legal sys- fication in this area of the law,42 it pro- As far as formal requirements are tem. In may do this by vided for new, and more plural and concerned the system is very liberal, • using the arrangements available flexible, methods of deciding matters with no restrictions of form regarding under international conventions; of jurisdiction. It retains the principle marriage of foreign nationals on Ital- • requesting information from the ian territory – so that, for example, a Ministry of Justice; 42. Act of 31 May 1995, Rev. crit. DIP 1996, p. 1 Muslim couple would be free to et seq. See, in particular, the following two • using the services of experts or articles: T. Ballarino,“Personnes, familles, marry according to their own rite. régimes matrimoniaux et successions dans Nor would they be subject to direct specialist institutions. la loi de réforme du droit international privé application of Article 116 of the Civil In all cases, application of the for- italien”, and V. Starace,”Le champ de la juridiction selon la loi de réforme du sys- Code, because it presupposes a civil eign law must not conflict with Ital- tème italien de droit international privé”. marriage celebration. ian public policy.

3. Provisions in civil law Marital capacity, consent, the cele- between adoptive parents and their 3.3. Celebration of marriage bration of marriage and its annul- adopted children or the latter’s The rules on religious marriage ment are governed by Articles 79 to descendants or adopted children are contained in Chapter II “Marriage 142 of the Italian Civil Code. (although a legal exemption may be celebrated before a priest of the Cath- granted in such cases). 3.1. Marital capacity olic Church and marriage celebrated 3.2. Consent before a minister of religion of a Under Article 84, minors may not denomination recognised by the contract marriage. A judge sitting in Consent must be free and deliber- state.” Religious marriage is subject to chambers may – ruling on an applica- ate. rules set out in the relevant concor- tion by the minor concerned and It must also be real and unfeigned dat. Marriages celebrated before a taking into account his or her physi- and must not be flawed by violence minister of religion of another cal and psychological maturity as or deferential fear of an exceptionally denomination recognised by the Ital- well as the opinions of the public serious kind (defined as a psychologi- ian state must comply with the rules prosecution service and the minor’s cal perception of danger to one’s per- of the Civil Code except where provi- parents or guardians – permit the son). sions to the contrary exist in a special marriage of a person aged at least 17. statute (Articles 82 and 83). The right to oppose marriages is Article 85 contains a prohibition covered by Articles 102 to 105. The The Concordat of 1929 recognises on grounds of mental illness. Persons right may be exercised by parents or, the effect in civil law of unions con- who are mentally incapable may not in their absence, by other direct tracted by religious marriage where contract marriage (if a court ruling on ascendants or relatives to the third the marriage is entered in the munic- the question of mental incapacity is degree of kinship, or by a guardian ipal register. Immediately following pending, the marriage celebration (the grounds for opposition being the religious ceremony the officiating must be postponed until it has been based on the legal requirements for cleric will explain to the spouses the delivered). the celebration of marriage). A mar- civil effects of marriage, reading out Article 87 concerns marriage and riage may also be opposed by the the articles of the Civil Code that con- degrees of kinship. Marriages may existing partner of a person who cern marital rights and duties. Annul- not be contracted between direct wishes to contract a new marriage. ments by ecclesiastical courts have ascendants and descendants, civil force subject to an appeal court whether or not the descendants are Marriages contracted in breach of judgment (Article 8(2) of the Concor- legitimate; between full-blood broth- Article 89 (i.e.. where there is failure dat, ratified by Italy in Act 121 of 25 ers and sisters or brothers and sisters to observe the statutory waiting March 1985, provides that a judgment who share either the same mother or period before ) may also of the ecclesiastical courts annulling the same father; between aunts or be opposed by the parents of the pre- a marriage, when rendered enforcea- uncles and nieces or nephews; with vious spouse, following the divorce. ble by the superior ecclesiastical the spouses of direct ascendants or Under Article 102(4), the public review body, can be made enforcea- descendants, even where the previ- prosecution service is required to pre- ble in Italy by the relevant court of ous marriage has been annulled, dis- vent marriages whenever it is aware appeal on an application by one of solved or declared to have no further of an impediment, a mental infirmity the parties. However, the European effect in civil law; with the spouses of or a problem with regard to the age of Court of Human Rights, in its judg- brothers or sisters, aunts or uncles; or one of the spouses-to-be. ment in the case of Pellegrini v. Italy,

96 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives found there had been a violation of 3.4. Annulment of marriage marriage null on grounds provided Article 6(1) (right to a fair hearing) of In the case of marriages con- for in canon law, and secondly by an the European Convention on Human tracted in breach of Article 84 (on Italian civil court, enforcing the Rights, in that the Italian courts had minority), an action for annulment ecclesiastical court judgment. failed to ensure that the applicant had may be brought by either parent of The civil-law rules on annulment had a fair hearing in a dispute about the spouse concerned or by the of marriage do not make the custom- civil rights and obligations. The appli- public prosecution service (and a ary distinction between nullity and cant argued that her right of defence person who was a minor at the time invalidation. There are several differ- had been irremediably compromised of contracting a marriage can apply ent types of nullity, however: when she was called to appear before for its annulment up to one year after • absolute nullity (which may be an ecclesiastical court (she had not reaching the age of majority). invoked by anyone with a legiti- been informed of the identity of the The same parties may seek annul- mate interest in doing so); person applying for the annulment or ment of marriages contracted in • relative nullity (which may be of the grounds on which it was breach of Articles 86 (freedom from invoked only by the spouses and sought). marital commitment), 87 (kinship) in some cases by a few specified and 88 (homicide), but in these cases persons); Articles 106 to 114 deal with vari- entitlement to take proceedings is • prohibitive nullity (if the spouses ous aspects of marriage including the extended to anyone with a legitimate have cohabited for a certain period place of celebration (Article 106); and current interest in doing so. of time the marriage may no formal procedure and the giving of Violence, grave fear and flawed longer be contested); the spouses’ consent in the presence consent are grounds for annulment. • fatal nullity (where the fact of of witnesses (Article 107); prohibition A person who has been married by cohabitation by the spouses can of marriage in certain circumstances force is therefore required to prove never have the effect of prevent- (Article 108); and the use of proxies that he or she was afraid to disappoint ing annulment). (Article 109). others by not contracting the mar- Canon law recognises a wide range riage. of grounds for annulment, particu- The law provides that a civil Action for an annulment becomes larly in relation to spousal consent, authority may refuse to celebrate a barred if the spouses have cohabited which must be free, deliberate and marriage (or to issue a notice of mar- for a year since the occasion of the real. The grounds include lack of the riage) for a number of reasons, nota- fear. necessary mental faculties, failure to bly failure to observe the necessary Civil marriages will be declared observe basic requirements for mar- requirements or the formalities with null by an Italian civil court on riage, violence and duress. Violence regard to notice and form of celebra- grounds provided for in civil law. is understood to mean the use of tion. The civil authority must give Annulment of a marriage governed force against a person for purposes of reasons for its decision and the deci- by the provisions of the concordat constraint, and duress is understood sion may be appealed to a judge sit- requires two decisions: firstly by an to mean constant fear or pressure ting in chambers (Article 112). ecclesiastical court, declaring the which impels a person to marry.

4. Protection measures The Family Violence Act (Law 154 When the conduct of a spouse or to protect victims of marital or of 4 April 2001), in conjunction with cohabitee causes serious physical or domestic ill treatment; Act 304/2003, contains a number of psychological harm to the other relevant provisions: spouse or cohabitee or seriously • determination of an allowance, • removal from the family home infringes their freedom the court proportionate to any loss of (Article 1); may, where the facts of the case do income, to be paid to the spouse in • measures to protect against abuse not automatically warrant criminal charge of the family. within the family (Article 2) – proceedings and on application by introducing a number of new pro- one of the parties, order that one or Court orders of this kind apply for visions (Title IX bis) under Title more the measures provided for in IX, Book I of the Civil Code; Article 342 ter be taken: a maximum of six months, but may The court may grant protection • intervention by social services, a then be extended on application by order against abuse within the family family mediation agency or a rec- one of the parties, for serious reasons (Article 342 bis). ognised association whose role is and for a strictly limited period.

5. Provisions in criminal law 5.1. Classification of forced marriage against the person in a marital or provisions of Title IX, Chapter I of the family context offer possible grounds Criminal Code concerning offences There is no specific offence of for prosecutions. against sexual freedom. One of the forced marriage but various provi- The Sexual Violence Act (Law 66 provisions that was repealed con- sions on violence and other offences of 15 February 1996) repealed the cerned marriage-related kidnapping.

Appendix 2: Working documents : Italy 97 The former Article 522 provided that (2) by deceiving the victim by pre- Anyone who performs a sexual act anyone who, by means of violence or tending to be someone else. to exhibit himself to a child under 14 threat, concealed or held an unmar- The length of the sentence may be years of age is liable to imprisonment ried woman for purposes of marriage reduced by up to two-thirds in less for between six months and three was liable to imprisonment for one to serious cases. years. three years. The cancellation of this Article 609 ter lays down heavier Article 609 sexies concerns the pos- provision is regrettable because it penalties where there are aggravating sible defence of ignorance of a per- would have offered a direct means of circumstances. The term of imprison- son’s age. If the victim in any of the penalising forced marriage without ment is between six and 12 years if situations described in the preceding recourse to other provisions. Previ- the offences enumerated in Article articles is less than 14 years of age, ously, sexual offences were classed as 609 bis are committed: there is no defence of ignorance of “offences against public morality” and • against minors under 14; age. more specifically against sexual free- • with the use of a weapon, an alco- Article 609 septies states that, in dom. holic, narcotic or stupefying sub- relation to the offences provided for The new Criminal Code provisions stance or any instrument or in Articles 609 bis, ter and quater, the have replaced the concept of rape, as substance harmful to the health of victim must lodge a complaint within such, by that of “sexual violence” – a the victim; six months and complaints once generic term covering all forms of • by persons using a disguise or pre- lodged may not be retracted. sexual assault. tending to be public officials or Prosecution is automatic if: employees of a public service; There are no specific provisions in • in the case of the offences • on an individual whose personal relation to rape of minors or other described in Article 609 bis, the freedom is impeded; sexual acts against minors, the age of victim is under 14 years of age; • on a person who has not reached the victim being merely an aggravat- • the perpetrator is a parent, guard- the age of 16 years and of whom ing circumstance. The same applies ian or adoptive parent etc; the perpetrator is the ascendant, to a husband-wife relationship, and • the perpetrator is a public official; parent, adoptive parent or guard- there is no specific offence of rape • the perpetrator was living with the ian. within marriage. child victim, who was under his or The term of imprisonment is Article 605 of the Criminal Code her supervision. between seven and 14 years if the concerns the offence of false impris- These provisions on sexual assault victim is under ten years of age. onment. Anyone who deprives provide a basis for prosecution in Article 609 quater penalises sexual another of his or her personal free- cases of forced marriage, i.e. once the acts with a minor. Perpetrators in dom is liable to imprisonment for marriage has been concluded. A hus- such cases are liable to the same pen- between six months and eight years. band may be prosecuted for sexual alties provided for in Article 609 bis. The penalty increases to 10 years’ violence against his wife, but prose- This provision applies where the per- imprisonment if the offence is com- cution depends on the victim making petrator is guilty of a sexual act with a mitted against an ascendant, a complaint. person who: descendant or spouse. This additional Under Section III, concerning • was under 14 years of age; stipulation would allow prosecution offences against moral freedom, Arti- • - was under 16 years of age, if the either of parents, who may have cle 610 penalises acts of violence in perpetrator is the ascendant, falsely imprisoned their child prior to private. Anyone who, through the use parent or guardian of the victim or a marriage, or the new spouse. of violence or threat, forces another otherwise responsible for his or to do, tolerate or refrain from doing Article 609 bis of the Criminal her upbringing, education or something, is liable to up to four Code deals with sexual violence. supervision or, in the last-men- years’ imprisonment. Anyone who, by means of violence, tioned circumstances, was living Prosecution in cases of forced mar- threat or abuse of authority, forces with the victim. riage is possible only if the spouse or another person to perform or Apart from the cases provided for the parents of the victim have com- undergo a sexual act is liable to in Article 609 bis, penalties do not mitted one of the relevant offences. imprisonment for between five and apply to minors who have committed Otherwise, in the absence of any spe- ten years. The same penalty applies sexual acts with another minor aged cific offence of forced marriage, there to anyone who induces, or causes 13 or over if there is an age difference is no penalty for the practice under another person to undergo, such an of less than three years between the criminal law. act: two. (1) by taking advantage of the vic- Article 690 quinquies concerns the 5.2. Prosecutions in cases of forced tim’s physical or mental inferiority or offence of corruption of a minor. marriage

6. Provisions of the law on foreign nationals

Family reunification is provided visions of several other pieces of leg- of 31 August 1999 supplements the for in Legislative Decree 286 of 25 islation, including the Immigration 1998 Act. Additional amendments July 1998, which coordinates the pro- Act of 6 March 1998. A further order were introduced by the Bossi-Fini

98 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives Act, which Parliament passed on 11 made the application. It will be A foreign national may apply for July 2002. renewable after the same period of Italian nationality after six months’ Family reunification is a right that time. residence in Italy or after three years may be exercised by foreign nationals The Nationality Act (Law 91 of 5 of marriage, provided that the holding a residence permit valid for February 1992) provides that a for- spouses have not separated. at least one year in order to bring cer- eign national or stateless person mar- Applications are submitted to and tain members of their families to ried to an Italian citizen may acquire processed by county administrative Italy. nationality simply by applying for it offices which forward them to the A spouse who is not separated is after six months’ residence in Italy or Ministry of the Interior. covered by the family reunification three years of marriage. provisions if the foreign national Decisions to grant nationality are The provisions of the Nationality making the application fulfils the fol- made in a decree of the Minister of Act were the subject of implementing lowing conditions: the Interior. Applications may be legislation in the form of Presidential • possession of a residence permit refused only on grounds indicated in Decree No. 573 of 12 October 1993. valid for at least one year; the legislation, notably a criminal • possession of accommodation that Applicants for Italian nationality record or risk to national security. In meets the standards for new must not have been convicted of an the second case, the decree rejecting public-authority housing; offence against the security or the application is subject to approval • possession of an annual income authority of the state or the institu- by the Council of State. from lawful sources at least equal tions of the Republic, and must not Italian nationality is acquired to the minimum level of benefit have been convicted of an offence definitively only if the applicant payable to persons without carrying a penalty of three years’ or takes an oath of allegiance to the resources who are incapable of more imprisonment or convicted by a Republic within six months of receiv- working. This income require- foreign court of an offence recognised ing notice of the decision. The oath is ment varies according to the in Italy and punishable by more than taken in the presence of a civil number of persons for whom a year’s imprisonment. Applications authority of the municipality where family reunification is sought. are refused if there is risk to national the applicant lives. A residence permit obtained under security. the family reunification procedure Acquisition of Italian nationality If an application is refused, a fresh will be for the same duration as the does not require renunciation of the application may not be submitted permit of the foreign national who person’s original nationality. within five years.

7. Policies and approaches

Latvia

1. International agreements

• The Convention on the Elimina- accordance with the provisions of • The 1989 United Nations Conven- tion of All Forms of Discrimination Article 27, was signed on 15 April tion on the Rights of the Child was against Women, which came into 1992 and has been ratified. signed on 15 April 1992 and has force on 3 September 1981 in been ratified.

2. Provisions in private international law

3. Provisions in civil law

3.1. Marital capacity 3.3. Celebration of marriage 3.4. Annulment of marriage Latvian civil law prohibits mar- Sections 59 to 64 of the Civil Code riage under age 18. Under civil law, marriage must be provide for annulment of marriage in A person who has reached 16 years celebrated in the personal presence the following circumstances: of age may marry with the consent of of the two intending spouses and two • if the marriage was not celebrated his or her parents or guardian if the adult witnesses. The Registrar Gen- by a civil authority; marriage is concluded with a person eral’s representative [civil authority] • if the marriage was contracted of marriageable age (Section 33 of the under the pretence of intent to must ask the intending spouses if Civil Code). found a family; they wish to marry. If they both say • if the marriage was contracted 3.2. Consent that they do the civil authority before the spouses, or one of them, The consent of the two intending declares them married on the basis of had reached the permitted age for spouses must be expressed in person. that agreement (Section 57). marriage under civil law;

Appendix 2: Working documents : Latvia 99 • if, when the marriage took place, • if the marriage was prohibited on Latvian civil law stipulates that a one of the spouses had been grounds of kinship between the spouse may contest the validity of a declared incapacitated on account spouses; marriage if he or she was married of mental illness or mental defi- under unlawful threat (Section 67). ciency, or because of being unable • if, when the marriage was cele- to understand the significance of, brated, one of the spouses was or control, his or her actions; already married.

4. Protection measures

5. Provisions in criminal law

6. Provisions of the law on foreign nationals

7. Policies and approaches

G. Rupenheite reports that the However, the Anti-Violence reasons for marriage and conceptions term “forced marriage” is not used in Centre at Dardedze has conducted a of it. Latvian law or regulations and adds research project on marriage, having that the Latvian Ministry for Children children, and factors that promote and Family Affairs has no research on good parent-child relationships. The 43. Copies of the study may be obtained from 43 forced marriages. study investigated Latvians’ atti- the Ministry for Children and Family tudes to marriage as an institution, Affairs.

Luxembourg

1. International agreements

• The Convention on the Elimina- • The 1989 United Nations Conven- Parental Responsibility and Meas- tion of All Forms of Discrimination tion on the Rights of the Child was ures for the Protection of Children, against Women, which came into signed on 7 March 1994 and has which has not yet entered into been ratified. force, amends the Convention of 5 force on 3 September 1981 in • The Convention of 19 October October 1961 concerning the accordance with the provisions of 1996 on Jurisdiction, Applicable Powers of Authorities and the Law Article 27, was signed on 2 Febru- Law, Recognition, Enforcement Applicable in respect of the Protec- ary 1989 and has been ratified. and Cooperation in respect of tion of Minors.

2. Provisions in private international law

Marriages contracted abroad nationality the marital capacity crite- bration. It is under that law that the between Luxembourg nationals, or ria for each are governed by his or officiating civil authority is compe- between a Luxembourg national and her own national law, even if the tent, and that law which applies in a foreigner, are deemed valid if they woman acquires her husband’s the event of any breach of a formal are celebrated according to the nationality through marriage. It fol- requirement. normal conventions of the country in lows that, with regard to marital For a marriage to be celebrated, question, if they are preceded by pub- capacity, a marriage contracted one of two conditions must be met: lication of notice as provided for in abroad between a Luxembourg 1) when one of the intending Article 63 of the Civil Code (“Docu- national and a foreigner is governed spouses is a Luxembourg national or ments on civil status”), and if the Lux- by Luxembourg law (Lux. 11 March resides habitually in Luxembourg, embourg national has in no way con- 1903, 6, 226). both of the intending spouses must travened the provisions of the code’s In accordance with both Article satisfy the substantive requirements previous chapter on substantive con- 170 of the Civil Code and Article 5 of for marriage under Luxembourg law, ditions for marriage (Article 170 of the Hague Convention regulating or; the Civil Code). conflicts of law pertaining to marital 2) each intending spouse must sat- The rule applied is that marriage regimes, the formal requirements for isfy the substantive requirements for depends in principle on personal sta- the marriage of a Luxembourg marriage under the law governing his tus: it is generally accepted that when national in a foreign country are gov- or her personal status (Article 171 of intending spouses are not of the same erned by the law of the place of cele- the Act of 20 December 1990).

100 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives 3. Provisions in civil law

3.1. Marital capacity council (Article 150 of the Civil date of the marriage (Article 165 of Code). the Civil Code). Men who have not reached 18 If there is no father, mother, grand- years of age and women who have 3.4. Annulment of marriage not reached 16 years of age are not father or grandmother, if they are incapable of expressing their wishes, allowed to marry (Article 144 of the A marriage contracted without the or if the ascendant whose consent is Civil Code). free consent of both spouses or of one required is absent, the minor may of them may be contested only by the However, the Grand Duke is marry before the age of 18 years only spouses themselves or by that spouse empowered to make exceptions to the with the consent of the family council whose consent was not given freely age requirement where there are seri- (Article160 of the Civil Code). ous grounds for doing so (Article 145 (Article 180 of the Civil Code). of the Civil Code). 3.2. Consent A marriage contracted without the Males and females under 18 years consent of a spouse’s parents, ascend- of age cannot marry without their There is no marriage without con- ants or family council (where such parents’ consent. Any disagreement sent (Article 146 of the Civil Code). consent is necessary) can be con- between the father and mother is tested only by those persons whose If, in the cases provided for in Arti- treated as implying consent. If there consent was required or by the cles 148 to 150, 158 and 160, consent is disagreement between divorced or spouse in respect of whom consent to marriage of a minor is refused, a separated parents, the consent of the was required (Article 182 of the Civil district court may, on application by parent who has custody of the child is Code). the public prosecution service, mandatory (Article 148 of the Civil authorise the minor to contract the Annulment cannot be sought Code). marriage if it considers the refusal either by the spouses or by the par- If the father or mother is dead, unjustified. Applications are made in ents whose consent was required if unable to express his or her wishes, the form of a fixed-date summons the marriage was explicitly or tacitly or absent, the consent of the other lodged with the court of the district in approved by the persons whose con- suffices (Article 149). which the minor is domiciled or liv- sent was required or if a year has ing. The case is heard within the passed since they learned of the mar- If the father and mother are both week. The court cannot be asked to riage without their raising any objec- dead, unable to express their wishes, rehear the case but the decision can tion to it. Nor may annulment steps or absent, the consent of grandfathers be appealed within two weeks of be taken by the spouse if he or she and grandmothers is required delivery if both parties were heard, or did not raise any objection in the year instead. Where there is a disagree- of service of the decision if it was after reaching the statutory age of ment between a grandfather and a given by default. Appeals are heard consent to marriage (Article 183 of grandmother in the same lineage or by the High Court of Justice within a the Civil Code). where there is disagreement between week. Both the lower and the higher the two lineages, the disagreement is court process such cases as matters of On the other hand, a marriage taken to imply consent (Article 150 of urgency. The parties’ arguments are contracted by spouses who had not the Civil Code). heard in chambers (Article 160 bis of reached the required age, or one of whom had not reached the required A lawfully acknowledged illegiti- the Civil Code). age, may no longer be contested: mate child who has not reached the Appeal is by notice to the other full age of 18 cannot marry without party rather than application to the 1) if six months have passed since the consent of whichever parent court in chambers. Only preliminary the spouse or spouses reached the acknowledged him, or of the two if he examination of the appeal takes place age of capacity; was acknowledged by both. Disagree- in chambers. The appeal decision is ment between the parents is taken to 2) if the wife who had not reached by the court sitting in public (Cour 28 imply consent. The provisions of the required age conceives within six July 1938, 14, 217). Article 149 apply to illegitimate chil- months after marriage (Article 185 of dren who are minors (Article 158 of the Civil Code). the Civil Code). 3.3. Celebration of marriage Any marriage that was not con- An illegitimate child who was not Marriages are celebrated publicly tracted publicly or not celebrated acknowledged, or an acknowledged before the civil authority of the before the competent public official illegitimate child who has lost both municipality in which one of the may be contested by the spouses parents or whose parents are unable spouses is domiciled or resides at the themselves, the parents, the ascend- to express their wishes, may marry date of publication of the notice of ants, any person with an existing before the age of 18 years only after marriage (Article 63) or, in cases of interest or the public prosecution gaining the consent of the family exemption from giving notice, at the service (Article 191 of the Civil Code).

Appendix 2: Working documents : Luxembourg 101 4. Protection measures

5. Provisions in criminal law

5.1. Classification of forced marriage Forced marriage is not a specific offence in the Grand Duchy of Lux- embourg. 5.2. Prosecutions in cases of forced marriage

6. Provisions of the law on foreign nationals

The Act of 28 March 1972 on the nationality is regarded as a for- ing to procedures to be determined entry and residence of foreigners, eigner. by Grand Ducal regulation. medical checks on foreigners and the • Article 1(3): A foreigner who The Act of 27 July 1993 concern- employment of foreign workers intends to reside in the Grand ing the integration of foreigners into Duchy must declare his or her the Grand Duchy of Luxembourg and • Article 1: For purposes of applying arrival to the local authority in social measures in favour of foreign- the Act, anyone who cannot prove which he or she intends to reside, ers: no provisions of this act relate to that they possess Luxembourg within the time limit and accord- the question of forced marriages.

7. Policies and approaches

Marc Mathekowitsch of the Minis- whether in criminal law or immigra- marriages were necessarily mar- try of Justice wrote on 18 October tion law but that the Ministry of Jus- riages of convenience and were thus 2004 that there were currently no tice was closely studying the question open to annulment on the ground of provisions in Luxembourg that of marriages of convenience. He vitiated consent. related specifically to forced marriage expressed the view that all forced

Malta

1. International agreements

• The Convention on the Elimina- accordance with the provisions of • The 1989 United Nations Conven- tion of All Forms of Discrimination Article 27, was signed on 8 March tion on the Rights of the Child was against Women, which came into 1991 and has been ratified. signed on 30 September 1990 and force on 3 September 1981 in has been ratified.

2. Provisions in private international law

In order to be valid, a marriage cel- valid according to the law of the coun- marry) and absolute (eg a brother and ebrated either in Malta or abroad try of residence of one of the spouses. sister cannot marry). Prior to the must meet all the relevant statutory If, however, the marriage is not valid 1975 Act the established Maltese case conditions. in the law of the country where it is law was that marital capacity – A marriage is valid in Malta if: celebrated it will not be valid in Mal- including in matters of consent – was • the formal requirements for its tese law. The formal validity of mar- a substantive requirement for validity validity under the law of the coun- riages celebrated in Malta or abroad is of marriage and was governed by the try where it is celebrated are thus governed by the law of the place parties’ national law. observed and of celebration. • each of the persons intending to With regard to marital capacity, These two requirements raise the marry is capable of marriage Section 18(b) of the 1975 Marriage important basic questions of what under the law of his or her country Act provides for application of the matters are substantive and what for- of residence. rule of double domicile. A marriage mal, and which law prevails in each Under the 1975 Marriage Act mar- celebrated in Malta or abroad is valid case. With regard to the requirements riages must be contracted in accord- in Maltese law if, in the law of the for valid marriage, which are gov- ance with the national law of the respective countries of domicile, each erned by the parties’ national law, place of celebration. This applies of the parties has capacity to marry. there is general agreement that they even if the ceremony or procedure Capacity here is both relative (eg. a take in legal capacity, consanguinity, that constitutes the marriage is not child below a certain age cannot affinity, bigamy and minimum age.

102 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives 3. Provisions in civil law 3.1. Marital capacity marriageable age, have not yet Consent is vitiated by lack of The age requirement for contract- attained majority and are still subject capacity and, decisively so, if ing marriage is 16. to parental authority. obtained from one of the parties Paradoxically, the age of consent through violence, deception or error. 3.3. Celebration of marriage to sexual intercourse is 18. This is an The declaration must be made at the place which was the party’s place of indication of Malta’s conservative 3.4. Annulment of marriage attitude to sex and marriage. residence prior to the marriage. The If a marriage is celebrated in a for- degree of vitiation is established in 3.2. Consent eign country, the law of that country accordance with the law. The substantive and formal condi- applies in annulment matters. When Maltese courts have included the tions for validity of marriage are laid a marriage is declared null, however, concept of respectful fear in their def- down in Section 18 of the 1975 Mar- for the decision to be effective in inition of violence. Fear of a parent or riage Act. Malta there must be a declaration of guardian may thus vitiate consent Parental consent is required for nullity in accordance with the 1975 and constitute a ground for annul- marriage of persons who, though of Marriage Act (Section 20). ment of the marriage.

4. Protection measures

5. Provisions in criminal law 5.1. Classification of forced marriage There are, however, a number of having sexual relations with a person Marriage of convenience is an offences which may apply in situa- without their consent. offence punishable by imprisonment. tions of forced marriage. Issuing There is no specific reference in threats, for example, is in itself an 5.2. Prosecutions in cases of forced criminal law to forced marriage. offence, as are kidnapping and marriage

6. Provisions of the law on foreign nationals

7. Policies and approaches Agenzija Appogg is a government There is a 24-hour crisis interven- moting a society that has zero toler- agency set up to protect children in tion service for women who are vic- ance for violence. need of care, develop human tims of domestic or family violence. It Women who want to use the resources, integrate all aspects of offers professional support, with indi- accommodation service need to con- social-service provision and harmo- vidual and group sessions, for women tact Appogg’s domestic-violence unit nise standards and practice. It cur- and their children who are in the in order to be assessed. The assess- rently has 24 units at work in many process of leaving abusive relation- ment focuses on the person’s circum- sectors of the community. ships, the aim being to enable them stances and on whether the provision Appogg provides sheltered accom- to recognise the effects of the abuse of accommodation will meet the modation for women under a pro- and to plan for their future. The serv- need. It takes account of the interests gramme known as “L-Ghabexx”. It ice works to raise awareness among of children. If the applicant’s safety is offers quality support to women and at risk, accommodation will be pro- their children who are victims of women and children of the cycle of vided immediately. Priority is given domestic and family violence. The violence and its damaging effects, to people in emergency situations. As main aims of the programme are to and to help them to understand that far as possible, accommodation is not provide a safe refuge for women and abuse can never be accepted or justi- provided for longer than three their children who urgently need fied. It hopes to achieve greater months. temporary accommodation in a public awareness about domestic and secure environment. family violence, with a view to pro-

Netherlands

1. International agreements • The United Nations Convention of ters, was signed on 10 December accordance with the provisions of 7 November 1962 on Consent to 1962 and ratified on 2 July 1965. Article 27, was signed on 23 July Marriage, Minimum Age for Mar- •The Convention on the Elimina- 1991 and has been ratified. riage and Registration of Mar- tion of All Forms of Discrimination riages, which came into force on 9 against Women, which came into • The 1989 United Nations Conven- December 1964 by exchange of let- force on 3 September 1981 in tion on the Rights of the Child was

Appendix 2: Working documents : Netherlands 103 signed on 6 February 1995 and has and Cooperation in respect of of 5 October 1961 concerning the been ratified. Parental Responsibility and Meas- Powers of Authorities and the Law • The Convention of 19 October ures for the Protection of Children, Applicable in respect of the Protec- 1996 on Jurisdiction, Applicable which entered into force on 1st Jan- tion of Minors. Law, Recognition, Enforcement uary 2002, amends the Convention

2. Provisions in private international law

3. Provisions in civil law Marriage is governed by an Act of 3.1. Marital capacity 3.2. Consent 1991. The statutory minimum age for 3.3. Celebration of marriage The statutory age of majority is 18 marriage is 18 years. If someone years. younger wishes to marry, their legal 3.4. Annulment of marriage representative must obtain permis- sion from the civil court.

4. Protection measures

5. Provisions in criminal law 5.1. Classification of forced marriage Article 247 of the Criminal Code from the day an offence is commit- The Criminal Code contains no classifies all other sexual acts as inde- ted, in the case of sexual offences definition of forced marriage. cency. If committed against young against minors it runs from the day Under Article 242 of the code, people under 16 they are punishable, following the victim’s 18th birthday. however, there is scope for prosecu- even if duress was not used. Perpetra- This provision has been in force since tion in cases of forced marriage on tors are liable to a maximum term of 1 September 1994. the basis of other offences such as imprisonment of six years or a Cate- rape. A person who, by means of a gory 4 fine. Criminal proceedings begin with violent or other action or the threat of If the offence is committed with the lodging of a complaint by the violence or of some other action, the use of force or some other form of victim or a third party. On 1 Decem- forces another person to submit to duress, the penalties are more severe: ber 1991 a new rule came into force acts involving sexual penetration, is imprisonment for up to eight years or in respect of sexual offences commit- a heavier fine. These provisions guilty of rape and liable to imprison- ted against minors aged over 12 years apply irrespective of the victim’s age. ment for up to 12 years and a Cate- and under 16 years. Prosecution for gory 5 fine. If the offence occasioned serious such offences depended on a com- Acts of sexual penetration commit- physical injuries, the maximum term plaint being made by the victim or by ted on young people aged over 12 and of imprisonment is increased to 12 parents. When this provision proved under 16 are also punishable irre- years although the amount of the fine difficult to apply, it was amended by spective of whether any form of is unchanged. the Act of 10 September 2002: the duress was used. Perpetrators are Prosecutions can also be brought liable to imprisonment for up to eight for unlawful imprisonment (under public prosecution service is now years or a Category 5 fine if the Articles 282 and 283), duress (Article required to interview the victim in offence occasioned serious physical 284) or threats and intimidation (Arti- order to ascertain that the offence injuries. If the perpetrator used some cle 285(a)) was not committed with his or her form of duress the penalty is the consent. If it was, the prosecution same as for rape of an adult. 5.2. Prosecutions in cases of forced may be dropped under the principle Irrespective of the victim’s age, the marriage of discretionary prosecution. maximum term of imprisonment is In an exception to the general 15 years in cases where death results. principle that a limitation period runs

6. Provisions of the law on foreign nationals Family reunification is governed tuyn List, family reunification would least 130% of the national minimum by the Aliens Act 2000. The Act does be made more difficult. A foreign guaranteed income. not, however, lay down the condi- national wishing to bring his or her tions for family reunification, these A foreign national who meets the family to the Netherlands would have being fixed by an official circular on stipulated conditions can bring his or to be at least 21 years of age and foreign nationals. her spouse to the Netherlands pro- Under a government agreement would have to provide significant vided that the two partners are adult between the Christian Democrats, financial guarantees. In particular, and will live together after family the Liberals and the populist Pim For- his or her income would have to be at reunification.

104 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives A foreign national wishing to bring applies that the applicant should ishable by imprisonment or a fine of his or her family must possess means work for at least 32 hours a week. more than EUR 450. of subsistence that are: If the foreign applicant himself or Unlike other foreign nationals who • autonomous, i.e. derived from herself came to the Netherlands are naturalised, spouses of Nether- work or from contribution-based under the family reunification proce- lands nationals may retain their orig- social benefits or a social allow- dure, he or she must have lived there inal citizenship. ance unconnected with family lawfully for at least three years before There is no length-of-residence reunification; applying for a spouse to come to the requirement for an application by a country. • secure, i.e. to which there is at foreign national married to a Nether- least one year’s entitlement; People admitted to the Nether- lands national. - and lands under the family reunification Applications are made to the office procedure are granted a residence of the municipal registrar in the • sufficient – the level of income permit valid for one year and renew- municipality where the applicant required depending on the compo- able annually. lives. The municipal authority carries sition of the household. The out an investigation, including an The Nationality Act of 19 Decem- income requirement is not applied interview with the applicant, to ber 1984, as amended in 1994, pro- to people who are certified perma- assess his or her ability to speak vides that foreign nationals married nently incapable of work, who Dutch. The application is then for- to citizens of the Netherlands for at have sole responsibility for a child warded to the Immigration and Natu- least three years may be naturalised. aged under five years, or who are ralisations Department of the Minis- over fifty-five and a half years of try of Justice. age. Applicants must hold a permanent residence permit and must be inte- The procedure takes between six If the foreign national applying for grated into Netherlands society – a and twelve months. family reunification possesses an condition which implies “reasonable” unlimited residence permit, the knowledge of Dutch. The applicant’s Naturalisation is not automatic. It income requirement is reduced to presence must not constitute a threat may be refused if the applicant’s pres- 70% of the national minimum guar- to public policy or national security. ence constitutes a threat to public anteed income for the size of family In the four years prior to the applica- policy, morality, public health or in question. If he or she is under 23 tion, he or she must not have been internal security. Decisions may be years of age, the further condition convicted of a criminal offence pun- appealed.

7. Policies and approaches

In the Netherlands, according to lence, but these facilities have no that deep-seated values cannot be Aydogan Sezai of the Transact associ- expertise on forced marriages. The changed, the message is conveyed ation, if a girl who realises she is at violence involved in cases of forced that the law of the land must be risk of being forced to marry is still at marriage is not only psychological obeyed. school, there will be someone there and physical, it is also sexual. The Each municipality has a social sup- to whom she can confide – a form woman is forced to marry a man port service to provide advice and a teacher or student support officer – whom she does not want, which sympathetic ear. who on her behalf will approach both implies sexual intercourse under Some municipalities have special her parents, or her father alone, or threat. assistance centres. (See the website: can contact the police. “The student A woman who finds herself in www.huiselijkgeweld.nl). support system is being developed in such a situation in the Netherlands People who need to talk about vio- our country following the murder of a will initially be accepted by a shelter. lence can contact the Korrelatie Turkish girls who had been in a If she then expresses a wish for inde- Foundation (by telephone at 0900- sexual relationship and was the pendence, she will be helped to find 1450 or by e-mail: vraag@korre- victim of an “honour killing” Student municipal accommodation and may latie.nl). support staff are particularly atten- also receive a living allowance from A further help line number is 020- tive to the situation of girls during the the municipality. summer holidays. There have been 6130245. several cases which have alerted the A number of associations run Certain organisations specialise in authorities to the problem of girls fail- training programmes about forced helping migrants: the Kezban Foun- ing to return to the Netherlands after marriages. Videos are shown in dation, for example, disseminates the holidays.” schools about the role of student sup- information about domestic violence port services, and students are thus ([email protected]), and the Shakti Sheltered accommodation exists made aware that opposing a marriage Foundation is another source of help for women who have suffered vio- entails risks. While it is recognised and support (e-mail: [email protected]).

Appendix 2: Working documents : Netherlands 105 Norway

1. International agreements

• The United Nations Convention of • The Convention on the Elimina- optional protocol to the Conven- 7 November 1962 on Consent to tion of All Forms of Discrimination tion was signed in 2000. Marriage, Minimum Age for Mar- against Women, which came into • The 1989 United Nations Conven- riage and Registration of Mar- tion on the Rights of the Child was force on 3 September 1981 in riages, which came into force on 9 signed on 8 January 1991 and has December 1964 by exchange of let- accordance with the provisions of been ratified. ters, was adopted by Norway on 10 Article 27, was signed on 21 May September 1964. 1981 and has been ratified. The

2. Provisions in private international law

In a memorandum of 5 July 2005, who are resident in Norway. The or she was forced into concluding the the Ministry of Children and Family intention is to prevent child marriage marriage. Some people may prefer a Affairs suggest that a marriage con- and forced marriage. To prevent seri- divorce. For that reason the Ministry tracted abroad, when one or both ous negative impact due to lack of in the same memorandum suggest spouses is below 18 years old, or if acknowledgement of a marriage the that a spouse or both spouses may the marriage is contracted by proxy, Ministry has proposed a possibility demand a divorce directly without shall not be valid in Norway. This for approval of the marriage as valid if been separated for at least one year if proposal is suggested to be valid for there are strong reasons. Either he or she was forced into concluding all Norwegians citizens and persons spouse may seek an annulment if he the marriage.

3. Provisions in civil law

3.1. Marital capacity humanist or recognised non-religious requirements for marriage were not In Norwegian law, 18 years is the organisations that receive public met when it was contracted. Either minimum age for marriage. funding, persons authorised to cele- spouse may seek an annulment if he Persons under 18 years may brate marriages by the Ministry when or she was forced into concluding the marry, but not without the consent of necessary, due to long distances or marriage (Article 16 of the Marriage a parent and authorisation from the other reasons. In the later case, the Act, Law 47 of 4 July 1991). appointment is made for four years. county governor. The county gover- The application for annulment The two spouses must appear nor may only give permission where must be received within six months before the person officiating in the there are special reasons for contract- from the constraint and no later than presence of two witnesses. The offi- ing a marriage. The main rule is that five years after the date of marriage. authorisation is not given to a person cial will declare them lawfully mar- under 17 years. ried and enter the marriage in the Voidable marriages are those con- The Ministry of Family and Chil- civil registrar following the exchange tracted despite the existence of an dren Affairs suggest in a memoran- of consent. Ministers of religion may impediment. In that case, the mar- dum of 5 July 2005 that when the perform marriages without prior riage is considered as unexistent. couples are below 16-year old, the public authorisation but they are county governor should not give dis- required to check that the conditions The county governor may also pensation for marriage. for marriage have been properly met. seek an annulment. This can be help- ful if one/either/both spouses find it Adults who lack legal capacity A guarantor who knows the hard to seek an annulment. must have a guardian’s consent if spouses well is required to answer they wish to marry. administrative questions, notably for Either spouse may seek dissolu- 3.2. Consent purposes of checking that the neces- tion of the marriage if it was con- sary conditions have been met. tracted contrary to Section 3 or Sec- 3.3. Celebration of marriage tion 4 of the Marriage Act. Section 3 3.4. Annulment of marriage Officials competent to celebrate prohibits marriage between close rel- marriage are public notaries, clerics Norwegian law makes a distinction atives and Section 4 prohibits mar- of the state church or ministers of between void and voidable marriages. riage when a previous marriage sub- other denominations, officials of A marriage is void if the basic sists.

4. Protection measures

A marital agreement concluded is not binding (Article 30a of the between parents on behalf of a minor Childhood Act, No. 7 of 1 April 1981).

106 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives 5. Provisions in criminal law 5.1. Classification of forced marriage Anyone who forces another same penalty (Article 222 (2) of the person to conclude a marriage Criminal Code). Forced marriage is prohibited through recourse to violence, depri- A person is regarded as an accom- under criminal law. Forcing someone vation of liberty, undue pressure or plice if he or she knowingly gives into marriage is punishable by other unlawful behaviour, or through false information to the victim, or to imprisonment. It is also prohibited the threat of such behaviour, is guilty the police or other authorities, with of the offence of forced marriage. The the intention of bringing about a under Norwegian law to incite a penalty is imprisonment for up to six forced marriage. person to marry in another country years. Accomplices are liable to the or to agree a marriage on behalf of a 5.2. Prosecutions in cases of forced minor. marriage

6. Provisions of the law on foreign nationals The Immigration Act No. 64 of 24 gration Act) on 19 October 2004. It Act). The government proposed that June 1988 governs the entry of for- proposed a new provision stating that it should be established by law (i.e. eign nationals into the Kingdom of a residence permit can be denied if statutory provisions in the Immigra- Norway and their presence in the the marriage appears to be motivated tion Act) that family reunification realm, as well as the Immigration mainly by obtaining a residence could be refused if the spouse does Regulations No. 1028 of 21 December permit for the spouse (section 58, not give her/his consent to his/her 1990. paragraph 3 of the law proposal). The spouse’s residence permit, or if the The Immigration Act has no spe- report has been widely disseminated immigration authorities find that it is cific provisions to counteract mar- for a consultation which ended in probable that the marriage is against riages of convenience, apart Section July 2005. On the basis of the report one of the spouses’ will. The purpose 23 paragraph 1a of the Immigration and the consultation, the government of the proposed amendments is to Regulations, which states that the has to prepare a new Immigration prevent granting of residence permits spouses shall live together. The immi- Act, which must be submitted to the on the basis of forced marriages. gration authorities can, however, Parliament for adoption before 1 Jan- For the same purpose, the govern- reject a residence permit application uary 2007. ment also proposed a new provision, if the marriage is considered to be pro At the present time, the Immigra- stating that a foreigner who has mar- forma, i.e. if the marriage is without tion Act has no explicit provision on ried a Norwegian resident abroad will any reality and is motivated entirely forced marriages. not obtain a residence permit until by evading the immigration law. On 19 August 2005, the govern- the spouse has returned to Norway In December 2001 the Govern- ment submitted to the Parliament and has been interviewed by the ment appointed an independent amendments to the Immigration Act immigration authorities. The provi- commission to draft a new Immigra- to counteract forced marriages sion aims to prevent forced mar- tion Act. The commission published (Ot.prp. No. 109 (2004–2005) regard- riages. The Government has pro- its report (NOU 2004: 20 New Immi- ing amendments of the Immigration posed exceptions to this rule.

7. Policies and approaches In December 1998, an action plan chures, articles in magazines, video members. Therefore, the Norwegian against forced marriages was set up. and leaflets. government emphasised the impor- Its two main aims were to prevent In April 2000, the Ministry of Chil- tance of dialogue and close coopera- young people from being exposed to dren and Family Affairs has organised tion with NGOs and minority groups forced marriage and to provide better an advice service on questions relat- in this matter to solve the problem of help and support to young people ing to forced marriage. This hotline forced marriage. who are, or have been exposed to has two main target groups; those The period of the action plan was forced marriage. The most important who are exposed to forced marriage 1999-2001. measures under this plan were infor- and bodies who need to know where mation, establishing a hotline and co- young people can go for further help. In April 2002 the new government operation with NGOs. The hotline will be evaluated after 3 presented their strategy to continue years of operation (2003). to combat forced marriage. It The government prepared differ- Some NGOs and minority-groups included 30 measures: public serv- ent kinds of information materials have been involved in actions against ices to help the girls concerned; about forced marriage aimed at vari- forced marriage before the work on development of information aiming ous target groups, such as young the action plan started. The minority young people and parents; continua- people that have or can be exposed to groups have much better opportuni- tion of the links with NGOs and the problem, parents and employees ties, compared with the community minority groups and financial sup- in the public and private sectors. The at large, to bring about and contribute port. The government will also information is presented in bro- to change of attitudes amongst their review the legislation to see if

Appendix 2: Working documents : Norway 107 changes can help preventing forced men who perpetrate this type of vio- them and receive financial support marriage. lence. from the state and local authorities. The main objective is to mobilise A Committee on Violence against In 2002, police forces introduced the governments of the migrants and Women was created in 2000. the district-level post of coordinator refugees countries of origin. Without Norway has set up a National of action against domestic violence, their co-operation, the practice of Centre for Information and Research the aim being to reinforce police forcing young people into marriage into Violence and Post-traumatic efforts at prevention in this area. will continue. Therefore, NGOs’ work Stress. The centre conducts Victims of sexual or domestic vio- in these countries must be supported researches and disseminates informa- lence – including women subjected to to combat forced marriage. tion and results on the topics dealt sexual violence by their husbands – Link to the plan of action against with. It provides training courses for are entitled to apply for free legal aid. forced marriages: police and the health sector to help The Code of Criminal Procedure http://www.odin.no/bfd/english/ them deal more effectively with both stipulates that a person may be doc/handbooks/004021-120005/dok- the perpetrators of violence and their denied access to a specific area or bn.html victims. barred from contact with another In 2000 and 2004, action pro- There are some 50 women’s shel- person if there is reason to suspect grammes were introduced to tackle ters in Norway. Most of them were set that he or she might infringe the right the problem of domestic violence. up by voluntary women’s groups of the other person to refuse his or Efforts have also been directed at which are responsible for running her presence.

Poland

1. International agreements

• The United Nations Convention of against Women, which came into Law, Recognition, Enforcement 7 November 1962 on Consent to force on 3 September 1981 in and Cooperation in respect of Marriage, Minimum Age for Mar- accordance with the provisions of Parental Responsibility and Meas- riage and Registration of Mar- Article 27, was signed on 30 July ures for the Protection of Children, riages, which came into force on 9 1980 and has been ratified. which entered into force on 1 Jan- December 1964 by exchange of let- • The 1989 United Nations Conven- uary 2002, amends the Convention ters, was signed on 17 December tion on the Rights of the Child was 1962 and ratified on 8 January signed on 7 July 1991 and has been of 5 October 1961 concerning the 1965. ratified. Powers of Authorities and the Law • The Convention on the Elimina- • The Convention of 19 October Applicable in respect of the Protec- tion of All Forms of Discrimination 1996 on Jurisdiction, Applicable tion of Minors.

2. Provisions in private international law

3. Provisions in civil law

3.1. Marital capacity permitted since the Act of 24 July and grounds are limited – namely 1998. lack of capacity, mental illness, kin- The marriage age is 18 years for ship and bigamy. An action for annul- both spouses. Marriage may be celebrated before a chief registrar in the presence of ment may be brought by either one of Marriage of a minor aged 16 years two adult witnesses. The spouses the spouses or by the public prosecu- may be authorised by a guardianship exchange consent, thereby manifest- tion service. court if there are serious reasons for ing their wish to marry. If the cere- The 24 July 1998 Act extended the doing so and provided the interests of mony takes place before a minister of grounds for annulment to cover the family are protected. religion, the spouses are required to forced marriage: marriages are void if 3.2. Consent make two separate joint declarations they were based on an error with of intent, one with regard to civil regard to identity, if one of the parties Consent must be manifested as a union and one with regard to reli- was unable to give deliberate expres- concerted wish. The declaration must gious union. They agree to be bound sion to his or her wishes, in cases of be made jointly. by both ecclesiastical law and the threat by one of the parties or a third Family and Guardianship Code. party, or where the circumstances of 3.3. Celebration of marriage the marriage gave one of the parties Previously, only the authorities of 3.4. Annulment of marriage grounds to fear that he or she, or the state could celebrate marriage. The conditions for annulment of another person, was under serious However, religious marriage has been marriage in Poland are very strict, threat.

108 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives 4. Protection measures

5. Provisions in criminal law Polish criminal law was reformed they feel ashamed or lack confidence In the latter case, the victim must in 1997 and a new criminal code in the authorities) and secondly, take the first step to initiate prosecu- came into force in 1998. when complaints are made perpetra- tion. tors tend to receive only the mini- 5.1. Classification of forced marriage Rape is classed as an offence mum sentence (few prison sentences against personal freedom. The Criminal Code includes no are imposed and those that are are specific offence of forced marriage. short). Under Article 199 of the Criminal Nor, however, does it place any A prosecution does not necessarily Code it is an offence to abuse a per- limitation on a victim’s entitlement to have to be initiated by the victim. Ill- son’s vulnerability in order to induce lodge a complaint. treatment can be reported by any him or her to have sexual intercourse Family violence is covered by Arti- member of the public who is aware of (prostitution is not covered by this cle 184 (anyone who inflicts physical it. provision). The penalty can be as or psychological ill-treatment on a much as three years’ imprisonment. family member, a person temporarily The penalties for rape are set out Article 253(1) of the code lays or permanently in his or her charge, a in Article 168 of the Criminal Code. down penalties for engaging in minor or a vulnerable person is liable Anyone who uses force, threat or human trafficking, even with the con- to a term of imprisonment of other unlawful means to compel sent of the persons trafficked. between six months and five years). another to commit or submit to an Anyone convicted of the offence The penalty increases to ten years’ immoral act is liable to a term of faces up to three years’ imprison- imprisonment if the perpetrator has, imprisonment of between one and ment. by his or her actions, put the victim’s ten years. life at risk. The law also covers aggravating In practice, this article of the Crim- However, this provision has not circumstances. The minimum pen- inal Code is rarely used. It does not proved effective against marital vio- alty for particularly cruel acts of vio- include a definition of “trafficking” lence, few cases of which are lence, for example, or for rape by and it is too general. reported. There are various explana- more than one person, is three years’ tions for this: firstly, victims are imprisonment. This provision 5.2. Prosecutions in cases of forced afraid to make a complaint (because extends to rape within marriage. marriage

6. Provisions of the law on foreign nationals

7. Policies and approaches

Portugal

1. International agreements • Portugal has signed the Conven- Article 27, was signed on 30 July and Cooperation in respect of tion of 14 March 1978 on Celebra- 1980 and has been ratified. Parental Responsibility and Meas- tion and Recognition of the ures for the Protection of Children, Validity of Marriages. • The 1989 United Nations Conven- which entered into force on 1st Jan- tion on the Rights of the Child was uary 2002, amends the Convention • The Convention on the Elimina- signed on 21 September 1990 and tion of All Forms of Discrimination has been ratified. of 5 October 1961 concerning the against Women, which came into • The Convention of 19 October Powers of Authorities and the Law force on 3 September 1981 in 1996 on Jurisdiction, Applicable Applicable in respect of the Protec- accordance with the provisions of Law, Recognition, Enforcement tion of Minors.

2. Provisions in private international law Articles 25, 26, 28, 31, 32 and 49 to cerned, subject to the restrictions laid tugal will be recognised there, subject 54 of the Código Civil [Civil Code] set down in this section of the code. to certification under the law of the out the rules applicable under private The personal law to which an indi- country concerned and provided that international law. Article 25 states vidual is subject is that of the country country’s legal system is competent that individuals’ civil status, legal of which he or she is a national. How- (Civil Code, Article 31). capacity, family relationships and ever, a legal transaction performed in The personal law applying to a inheritances are governed by the per- the country of habitual residence of a stateless person is that of the place sonal laws of the individuals con- person who seeks to register it in Por- where he or she habitually resides or,

Appendix 2: Working documents : Portugal 109 in cases of minors or persons whose ties’ national law, in the presence of of the formal requirements under legal capacity has been withdrawn, the appropriate diplomatic or consu- local law. The transcript of such a the place of lawful domicile (Article lar representatives – provided that marriage will form the basis of an 32(1)). the national legal system recognises entry in the parish register (Article Where there is no habitual resi- Portuguese diplomatic or consular 51(3)). dence, the provisions of Article 82(2) representatives as having similar The substance and effects of mar- apply (Article 32(2)). authority (Article 51(1)). riage contracts and of property Under Article 49 the substantive The marriage of two Portuguese arrangements, whether statutory or requirements for contracting mar- nationals in a foreign country or of a contractual, are determined by the riage are determined, in the case of Portuguese national with a foreign national law of the intending spouses each intending spouse, by his or her national may be celebrated in the at the time of the marriage (Article personal law – which thus governs presence of a Portuguese diplomatic 53(1)). Where the intending spouses absence of consent and vitiated con- or consular representative or of a are of different nationalities, the sent. Catholic priest. In some such cases applicable law is that of their shared Article 50(1) provides that the the marriage must be preceded by place of habitual residence at the date formal requirements, with certain the publication of notice by the com- of the marriage or, failing that, of exceptions set out in the following petent authority unless that require- their first place of residence as a mar- article, are determined by the law of ment is waived under the terms of ried couple (Article 53(2)). the state in which the marriage is cel- Article 1.599 (Article 51(2)). If the applicable law is that of a for- ebrated. The marriage of two Portuguese eign state and one of the intending The marriage of two foreign nationals in a foreign country or of a spouses habitually resides on Portu- nationals in Portugal may be cele- Portuguese national with a foreign guese territory, it may be stipulated brated according to the formal national under canon law is deemed that one of the regimes recognised by requirements of the contracting par- to be a Catholic marriage irrespective the code is to apply (Article 53(3)).

3. Provisions in civil law The relevant provisions are those Registration. A foreigner who intends The certificate is issued by the reg- of Articles 134 to 188 of the Código do to marry in Portugal in accordance istrar and must contain full personal Registo Civil [Code of Civil Registra- with one of the forms of marriage rec- details of the applicant and the other tion]. ognised in the code and who is pre- party, as well as the date of the deci- In terms of substantive require- vented from producing the Article sion of authorisation and the term of ments for the marriage of a foreign 166 certificate – because his or her validity (Code of Civil Registration, national, a foreigner who intends to country does not have diplomatic or Article 264(1)). The certificate is valid marry in Portugal in accordance with consular representation in Portugal for six months from the date of issue one of the forms of marriage recog- or for some other reason outside his (Code of Civil Registration, Article nised in the code must present a cer- or her control – may apply to the 264(2)). tificate of civil status issued not more selected registry office for verifica- If the registrar refuses to issue a than six months previously – the tion that he or she meets the substan- certificate, the applicant can chal- competent authority in his or her tive conditions for marriage (Code of lenge the decision in the courts (Code country of origin may specify some Civil Registration, Article 261). of Civil Registration, Article 262). other length of time – in order to When applying, the applicant 3.1. Marital capacity prove that there is no impediment to must provide full personal details for Article 130 stipulates that the age celebration of the marriage (Code of him/herself, the other party and the of majority is 18 years, but the legal Civil Registration, Article 166(1)). parents of both. He or she must minimum age for marriage is 16 declare that there is no impediment If the intending spouse cannot years. In no circumstances is mar- to celebration of the marriage and produce such a certificate – because riage permissible for persons who must explain why the necessary cer- his or her country does not have dip- lack legal capacity. lomatic or consular representation in tificate of civil status cannot be pro- Being under the marriage age (16) Portugal or for another reason out- duced (Code of Civil Registration, constitutes an absolute impediment side his or her control – the registry Article 262). to marriage. office responsible for the celebration When the required evidence has of the marriage can instead verify been submitted and the necessary 3.2. Consent that the substantive conditions for inquiries made, the registrar will If one or both of the intending marriage have been met, issued by deliver a decision granting or refus- spouses are minors, they require per- (Code of Civil Registration, Article ing a short-form certificate (Code of mission, in the presence of two wit- 166(2)). Civil Registration, Article 263(1)). nesses, from a parent or guardian. The procedure for verifying the Issue and refusal of the certificate are The registrar may waive the parental- substantive conditions for marriages entirely at the registrar’s discretion permission requirement if there are by foreign nationals is laid down in (Code of Civil Registration, Article important reasons for the marriage to Articles 261 to 265 of the Code of Civil 263(2)). be celebrated and the minor is suffi-

110 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives ciently mature physically and psy- urgently if either party is at the point local law there, may be used for chologically (Civil Code, Article of death, if the bride is about to give making entries in the civil register 1612). Absence of parental permis- birth, or in circumstances of immi- or meeting the requirements for sion is merely a relative impediment nent peril. In such cases the marriage marriage, irrespective of prior to marriage in that a court can grant will be entered provisionally in the legalisation – provided that their an exemption (Civil Code, Article civil register pending confirmation authenticity is not in doubt (Code 1609). by the civil authority. The civil of Civil Registration, Article 49(1)). The consent of the spouses is authority may refuse to confirm the If these documents are in a foreign strictly personal (Civil Code, Article marriage on the grounds that the language they must be accompa- 1619). legal requirements for marriage were nied by a translation made or certi- Marriage by proxy is permitted not met; that formal requirements for fied by the registrar or a public under Portuguese law (Civil Code, the urgent celebration procedure or notary – in certain cases in accord- Article 1620). One of the intending for provisional registration were not ance with the Notaries Code (Code spouses may delegate authority to an met; or that there are indications that of Civil Registration, Article 49(2)). appointed representative: in order to the marriage was celebrated for • the initial declaration of intent to do this it is sufficient to go to a notary unlawful reasons or that documents marry; and give consent, and the notary will were falsified. Specific documents, such as the draw up a proxy document. This Under Article 1664 of the Civil intending spouses’ identity cards, must contain specific authority to Code, a marriage between a Portu- may be required, or a foreign contract the marriage, name the guese national and a foreign national national’s residence permit, pass- other intending spouse and indicate celebrated outside Portugal is regis- port or equivalent document (Leg- how the marriage will take place. The tered at the Portuguese consulate islative Decree 228/2001 of 20 declared intent of the intending responsible for the territory in ques- August 2001, Code of Civil Regis- spouses to marry implies acceptance tion. It is entered in the civil register tration, Article 137). of all the legal effects of the union, when it has been legally recognised Note: registry offices require a subject to any stipulations made in under the procedure regarding for- passport and a current visa – valid for the marriage contract. The proxy eign legal decisions and provided that at least as long as the period required becomes invalid if it is revoked or if it does not violate the basic principles for the marriage procedure (a the principal or representative dies or of Portuguese and international requirement not specified in the leg- becomes incapacitated (Civil Code, public policy. islation). Article 1621). A marriage between a Portuguese Foreign nationals may, however, national and a foreign national cele- be exempted from producing these 3.3. Celebration of marriage brated in Portugal must comply with documents if they marry by proxy, Before any marriage is celebrated, the formal requirements and condi- i.e. if they are represented by an the law (Article 1690 of the Civil tions laid down in the Code of Civil attorney (Code of Civil Registration, Code) requires that notice of it be Registration (Code of Civil Registra- Article 137(5) as amended by Legisla- published in order to ensure there is tion, Article 164). tive Decree 228/2001 of 20 August no impediment to it. Any individual As mentioned under “Provisions in 2001). who is aware of an impediment is private international law”, marriages Note: a notary will agree to draw entitled to declare it up to the date of between foreign nationals may be up a proxy document and an attorney the marriage. The marriage cannot celebrated in Portugal in accordance will agree to represent the foreign be celebrated before expiry of an with the formal requirements laid national spouse only if he or she has eight-day waiting period from the down by the national law of one of a “good reason” for marrying by date of removal of the impediment, the intending spouses, in the pres- proxy. unless a court decides otherwise. ence of the appropriate diplomatic or 3.4. Annulment of marriage Article 1587 of the Civil Code rec- consular representatives – provided ognises both Catholic and civil mar- that the national legal system in The 1976 Act sets out the grounds riage (this has been the position since question recognises Portuguese diplo- for annulment of marriage and the the Act of 25 December 1970). Both matic or consular representatives as persons who may bring an action for forms of marriage have effect in civil having similar authority (Code of annulment. law. Civil marriage is celebrated by a Civil Registration, Article 165). It is the ecclesiastical courts that civil authority, while Catholic mar- There are, however, certain special deal with annulment of Catholic mar- riage is celebrated in accordance with rules that apply to marriages between riages (Civil Code, Articles 1625 and the concordat concluded between foreigners in Portugal, notably with 1626). Portugal and the Holy See on 7 May regard to: Civil marriage is considered not to 1940. Religious marriage is subject to • the validity of foreign documents have taken place if, other than in the rules of the Civil Code. Articles supplied by another state for pur- cases of urgency, it was not cele- 1615 and 1616 provide that the cele- poses of enabling a marriage to brated by the competent registrar; if bration is public, in the presence of take place in Portugal. it is an urgent marriage that was not two witnesses. Article 1590 provides Documents supplied by another subsequently validated; if consent for marriages to be celebrated country, in accordance with the was vitiated; if the marriage was cele-

Appendix 2: Working documents : Portugal 111 brated in the presence of a represent- there was an impediment to the mar- An action for annulment on the ative not entitled to act as a proxy; or riage (Civil Code, Articles 1631 and ground of lack of consent must be if it was celebrated between spouses 1634 to 1638). brought within three years of the of the same sex. marriage being celebrated (Civil An action for annulment on the A “non-existent” marriage of this Code, Article 1644). grounds that an absolute impediment type has no effect in law and any to the marriage existed may be An action for annulment on individual is entitled at any time to brought by either spouse, their rela- grounds of vitiated consent is void if invoke its non-existence, even with- tives in the direct and collateral lines not brought within six months from out a court ruling (Civil Code, Article to the fourth degree of kinship, their cessation of the vitiating circum- 1630). heirs, their adoptive parents, the stance (Civil Code, Article 1645). Apart from “non-existent” mar- public prosecution service, guardians riages, certain marriages are liable to An action for annulment on the of the spouses or a first spouse in the annulment (Civil Code, Articles 1631 ground of absence of witnesses may case of bigamy (Civil Code, Article to 1646). Absence of intent on the not be brought later than a year after 1639). An action is possible where a part of one of the spouses is a ground the marriage has been celebrated. spouse was married as a minor, for annulment. This applies when, at An annulled marriage may be lacked legal capacity to marry or was the time of the marriage, the spouse deemed to be “putative” in favour of not competent to do so due to a psy- in question was, for reasons of mental one or both spouses according to chological disorder or dementia. incapacity or otherwise, unaware of whether they acted in good faith in the step he or she was taking; when In cases of absence of intent with- contracting it (Civil Code, Article one of the spouses mistook the other out simulation, or of vitiated consent, 1647). There is a presumption of good for someone else; or when the decla- only the spouse who did not give con- faith, which is defined as ignorance of ration of intent to marry was sent is entitled to bring the action. If the vitiating circumstance, or good expressed under physical or moral the spouse who initiated the action faith may be deduced from the fact of duress (Civil Code, Article 1645). In dies, his or her relatives may take consent to marriage under duress such cases a court must confirm that over the action. (Civil Code, Article 1648).

4. Protection measures Act 61 on protection of women vic- implementing regulations had still tims of violence was passed in 1991. not been introduced. At the time of writing, however,

5. Provisions in criminal law

5.1. Classification of forced marriage not specified in the preceding article, other cases. The Criminal Code previ- The relevant provisions are to be to undergo or engage with him or ously stipulated that a man could not found in Chapter V of the Criminal someone else in copulation or anal or be charged with rape of his wife but Code, “Offences against freedom and oral coitus is liable to imprisonment the current version includes no such sexual self-determination”, Section I, for up to three years (Criminal Code, restriction with regard to the offence. “Offences against sexual freedom”. Article 164(2) as amended by Act 65/ Anyone who induces another to 98, of 2 September 1998). 5.2. Prosecutions in cases of forced undergo, or engage with him, or with There are other offences against marriage someone else, in copulation or anal freedom and sexual self-determina- or oral coitus by means of violence or tion, however, such as human traf- serious threat or after rendering ficking (Criminal Code, Article 169) Under Article 152 of the Criminal them unconscious or unable to resist and sexual abuse of children. Code, prosecution depends on the is liable to imprisonment for between Article 152 of the Criminal Code victim making a complaint. An three and ten years (Criminal Code, deals with physical and psychological amendment introduced in 1998, how- Article 164(1)). ill-treatment of a spouse. It provides ever, allows the public prosecution Anyone who, by taking advantage for two to ten years’ imprisonment service to initiate proceedings in the of hierarchical, economic or work- where death results, from two to eight absence of a complaint by the victim related authority, induces another, by years in cases of serious physical if that is in the victim’s interests and means of an order or form of threat assault and from one to five years in the victim does not object.

6. Provisions of the law on foreign nationals The Civil Code states that foreign The Portuguese state does not ity affords reciprocal rights to Portu- nationals enjoy the same legal status grant foreign nationals the same guese nationals (Article 14(2)). as Portuguese citizens except where rights as are enjoyed by citizens, how- Under Article 67 of the constitu- the law provides otherwise (Article ever, unless their country of national- tion, which calls the family “an essen- 14(1)). tial component of society” enjoying

112 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives the protection of the state, Legislative members in respect of whom the Applicants must prove their Decree 244 of 8 August 1998 makes application is made. attachment to the community in Por- family reunification an entitlement. Persons admitted under the family tugal, must not have been convicted The decree was amended in January reunification procedure receive a res- of any offence punishable by more 2001. idence permit of the same period of than one year’s imprisonment, and Under the decree family reunifica- validity as that held by the applicant. must not be public employees of tion is a right on condition that the another country. persons being given the benefit of it Under the Nationality Act (Law 37 Renunciation of the applicant’s (and there is an exhaustive list) previ- of 3 October 1981), as amended in original nationality is not required. ously lived with, or were dependent 1994, a foreign national who has been Declarations are registered by the on, the foreign applicant in another married to a Portuguese citizen for municipal registrar. Registry officials country. more than three years can – provided have a duty to notify the public pros- Partners must be married in order that he or she is still married – obtain ecution service if the foreign appli- to be granted family reunification. Portuguese nationality by mere offi- cant does not meet the requirements. The decree provides that the for- cial declaration. The public prosecution service is eign national who lives in Portugal Before the Nationality Act a empowered to contest the granting of must have “appropriate accommoda- woman who married a Portuguese nationality at the Court of Appeal in tion” and “adequate means of subsist- national automatically obtained Por- Lisbon if a foreign national fails to ence” to meet the needs of the family tuguese nationality. meet the statutory requirements.

7. Policies and approaches

“In Portugal little research has so victims of offences referred to in Arti- improving relations between victims far been done on forced and/or cle 152 of the Criminal Code, specifi- and the police. Its function is to raise arranged marriages. Associations that cally victims of marital violence, if as awareness within the police of vio- help immigrants or offer support to a result of the offence they are placed lence-related issues, promote a data- women are afraid to broach the sub- in financial difficulty. Applications base on the problem, encourage mod- ject openly” (from an interview with for provisional aid may be made by ernisation of police stations and Alexandra Carvalho, of the Portu- the victim in person, by a women’s inform the wider public about vio- guese Council for Refugees). aid association or by the public prose- lence. Legislative Decree 423/91 of 30 cution service. The state may require October 1991 provides for victims of that any sum awarded, provisionally In May 1999 the Council of Minis- violent crime to receive financial sup- or otherwise, be paid back if the ters approved a national plan to port from the state. Victims of marital victim obtains compensation. The combat violence in the family, violence are among the categories state is empowered to recover emphasising the need for a compre- covered. If, as the result of an assault, amounts paid from the party civilly hensive policy on the subject. As a the victim is unable to work for at liable. result, a number of measures were least 30 days, has suffered a signifi- Under Act 107 of 3 August 1999 a introduced, including two new pieces cant reduction in living standards and network of publicly run shelters was of legislation in 1999: the first pro- has not obtained compensation created for women who had been vic- vided for the network of publicly run through the courts, there is an entitle- tims of violence. Each district is shelters described above and the ment to state support. The amount required to have at least one such second for the system of provisional payable will be limited to the cost of facility and the conurbations of aid payments. actual damage. It is fixed with refer- Lisbon and Oporto must have at least ence to the amounts payable to vic- two. At the time of writing, imple- Under an Act of 1991, associations tims of road accidents and must take menting regulations in respect of the that defend women who have been account of any other sources of Act had not yet been issued. victims of violence are entitled to rep- income the victim has. Applications In January 1999 the Portuguese resent them in criminal proceedings are made to the Ministry of Justice Council of Ministers (Cabinet) if they have written authorisation to which has a special committee to con- adopted a programme known as INO- do so. They may also make applica- sider them. VAR, piloted by the Ministry of the tions for compensation or support Act 129 of 20 August 1999 provides Interior, under which a unit with a payments from the state on a victim’s for a system of provisional aid to the staff of five was given the task of behalf.

Romania

1. International agreements

• The United Nations Convention of riage and Registration of Mar- ters, was signed on 27 December 7 November 1962 on Consent to riages, which came into force on 9 1963 and ratified on 21 January Marriage, Minimum Age for Mar- December 1964 by exchange of let- 1993.

Appendix 2: Working documents : Romania 113 • The Convention on the Elimina- accordance with the provisions of • The 1989 United Nations Conven- tion of All Forms of Discrimination Article 27, was signed on 7 Janu- tion on the Rights of the Child was against Women, which came into ary 1982 and has been ratified. signed on 28 September 1990 and force on 3 September 1981 in has been ratified.

2. Provisions in private international law

3. Provisions in civil law

The principles governing family celebrated less than eight days after failure to observe Article 16 of the status are contained in Article 44 of the declaration has been registered. Family Code – requiring the the constitution of 21 November 1991, During that time anyone is entitled to spouses to appear in person before which reads: “The family is founded declare their opposition to the mar- the civil authority to express con- on the freely consented marriage of riage by notifying the registry office sent – renders the marriage null the spouses [and] their full equality, in writing of any impediment to it, or on the ground that there is no cer- as well as the right and duty of the any failure to observe other legal tainty with regard to personal, con- parents to ensure the upbringing, requirements. If the objection is well comitant consent;46 education, and instruction of their founded the civil authority will draw • if notice of the marriage was not children.” up a report refusing to celebrate the published or due procedure was Other relevant provisions are con- marriage. Otherwise the marriage not followed. tained in the Romanian Family Code may be celebrated at the registry Bogus marriage, entered into with 44 of 4 January 1954. office in the district where one of the the intention of circumventing the spouses is registered or lives. 3.1. Marital capacity law, is absolutely void. This applies if Article 17 of the Romanian Family one or both spouses contracted the The minimum age for contracting Code requires the intending spouses marriage not in order to found a marriage is 18 years for a man and 16 to appear before the civil authority to family and establish a personal and years for a woman, with provision for express their consent to marriage property-based relationship specific exceptions: subject to a doctor’s opin- publicly and in person. The civil to marital union, but for other pur- ion, girls aged at least 15 may be 47 authority will officially record that poses. given permission to marry (Family consent has been duly expressed and In such cases annulment requires Code, Article 4). will enter the marriage in the regis- a final court decision. Any individual Such exceptions are the responsi- ter. The marriage record is signed by has an indefeasible right to bring the bility of the mayor’s office in Bucha- the spouses and the civil authority. action for annulment. rest or of the county council in other Romanians may marry abroad in Relative nullity applies in cases areas. the presence of Romanian diplomatic where consent was obtained through or consular representatives in the 3.2. Consent deceit or violence. The right to bring host state – or they may go to a local an action for annulment in such Under Article 10 of the Romanian registry office there. They are cases is strictly personal and held Family Code, consent must be free required to ensure that the marriage only by the spouse whose consent and informed and is given in the mar- is entered in the civil register of their was vitiated. The action must be riage ceremony. place of residence in Romania within brought within six months of the vio- Incapacitated persons are not con- six months of returning there, other- lence ending or the deception being sidered competent to give free and wise the marriage will not be recog- uncovered. informed consent. nised in Romania (Decree 278-1960, Article 3). In cases of both absolute and rela- 3.3. Celebration of marriage tive nullity the marriage is rendered In accordance with Articles 12 and 3.4. Annulment of marriage void retrospectively. The spouse who 13 of the Romanian Family Code and A marriage is absolutely void in acted in bad faith is deemed never to Article 8 of Decree 278-1960 concern- the following cases: have contracted marriage. The ing civil status records, intending spouse who acted in good faith • if the age requirement for mar- spouses must express their shared retains married status until the date riage was not met, unless, prior to wish to marry by submitting to the of final annulment and is thus enti- the annulment, the under-age registry office a written and signed tled to maintenance payments, to a spouse reaches marriageable age declaration that, among other things, share in joint property, and to inherit. or the wife gives birth or becomes there is no impediment to the mar- pregnant; riage and by producing supporting 45. CSJ, decision no. 76-1993: Dreptul No. 12- documents. The marriage cannot be • absence of consent on the part of 1993, p. 85. the spouses – insanity being 46. Trib. S., decision no. 1035-1988: RRD, No. 5- 1989, p. 60. 44. O. Capatina, Romania, Législation com- deemed to imply absence of con- 47. Trib. S., decision no. 2969-1987: RRD, no. 7- parée, Juris-classeur, 1995. sent.45 Courts have also ruled that 1988, p 57.

114 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives 4. Protection measures Article 45 of the constitution “the right and duty to provide for the duties withdrawn by a court “if the makes the following stipulations: development, upbringing and educa- child’s health or physical develop- “Children and the young shall enjoy tion of their children”. With regard to ment is endangered either by that special protection and assistance in minor children the rights and duties parent’s abusive behaviour or serious the pursuit of their rights. […] Forms of the two parents are equal. They are negligence” (Article 109). of social protection for children and required to exercise their rights, If parents are unable to ensure the the young shall be established by law. taking account only of the child’s protection of a child because their […] interests and under the supervision parental rights and duties have been The exploitation of minors and of the state, in order to ensure the withdrawn, a committee for the pro- their employment in activities that children’s physical, intellectual and tection of minors – a municipality- might be harmful to their health or moral development (Articles 96 and based welfare agency – may decide to morals or endanger their life and 97). place the child in care, after consulta- normal development are prohibited.” In cases of doubt and on applica- tion with the parents and with the Under Article 44 of the Romanian tion by the authority responsible, a child if he or she is over 10 years of Family Code, married couples have parent may have his or her rights and age (Act 3-1970, Articles 12 and 14)

5. Provisions in criminal law 5.1. Classification of forced marriage There is no specific penalty in Under Article 180 the penalty for There is no specific offence of Romanian law for rape or sexual assault and other acts of violence forced marriage. Prosecutions may, abuse between spouses. occasioning physical suffering is however, be brought on the basis of Certain provisions do, however, imprisonment for between one and other provisions of the Criminal Code provide women victims of marital three months or a fine. in relation to violence against abuse with a possible basis for legal Under Article 181 actions which women. action and claiming damages with cause bodily harm necessitating med- Article 197 of the Criminal Code interest. Penalties in such cases are ical treatment for up to 60 days are defines rape as “sexual intercourse partly governed by Act 61/1991 con- punishable by a prison sentence of involving a person of the male sex cerning “failure to observe estab- between six months and three years. accomplished through the use of lished rules concerning marriage, force or taking advantage of the [vic- public policy and public safety”. 5.2. Prosecutions in cases of forced tim’s] defencelessness or inability to Apart from this Act, which deals marriage express consent or otherwise”. specifically with violence between The penalty for rape is imprison- spouses, Romanian criminal law A victim who wishes a prosecution ment for a minimum term of two makes no distinction between the to be brought under any of the above- years, or three years where the public and private spheres. The legis- mentioned provisions must lodge a offence involves aggravating circum- lation on assault thus extends to mar- complaint; reconciliation between stances. ital abuse. the parties cancels criminal liability.

6. Provisions of the law on foreign nationals

7. Policies and approaches A government strategy for protect- ministries and other government strategic plans to restructure and ing children in difficulty was devel- agencies responsible for social and develop the system of protection for oped in the years 2001-2004. It sets family protection and education, with children in difficulty in the local out a coherent overall package of key input from local administrative administrative area. They also super- response measures in which the cen- bodies and civil society. The ANP- vise implementation of the strategies, tral role falls to the National Author- DCA, a dedicated central administra- and coordinate, support and review ity for the Protection of Children’s tive body, oversees observance of the county administrative authorities’ Rights and for Adoption (ANPDCA), law in the field of child protection. work in this field. and creates an institutional frame- The public child-protection serv- work through which the ANPDCA ices have the task of preparing can coordinate measures taken by annual, medium-term and long-term

Slovakia

1. International agreements • The United Nations Convention of Marriage, Minimum Age for Mar- riages, which came into force on 9 7 November 1962 on Consent to riage and Registration of Mar- December 1964 by means of any

Appendix 2: Working documents : Slovakia 115 exchange of letters. The Slovak against Women, which came into • The 1989 United Nations Conven- Republic took over the Convention force on 3 September 1981 in tion on the Rights of the Child was on 28 May 1993. accordance with the provisions of signed on 28 May 1993 and has • The Convention on the Elimina- Article 27, was signed on 28 May been ratified. tion of All Forms of Discrimination 1993 and has been ratified.

2. Provisions in private international law

3. Provisions in civil law Capacity to acquire rights and obli- A marriage cannot be contracted who is entering into a marriage. gations originates at birth. Viable by someone suffering from a mental The marriage will not be valid if unborn children have the same disorder unless a court decides that the declaration does not include capacity. his or her state of health is compati- the name of the other intending People acquire capacity fully and ble with the social purpose of mar- spouse.; entirely when they reach their major- riage. • In religious marriage the intend- ity. A marriage is concluded by the ing spouses make the declaration The age of majority is 18 years. parties’ jointly declaring their wish to before the competent religious Majority cannot be acquired before enter into it. body and in the presence of the relevant church official. The place that age except through marriage. 3.3. Celebration of marriage Majority thus acquired cannot be lost of celebration is determined by the The declaration must be made through the dissolution or annulment religious rite. The church body publicly and solemnly in the pres- of the marriage. before which a marriage has been ence of two witnesses. contracted has a duty to submit 3.1. Marital capacity Marriage may be celebrated in a the record of the marriage, includ- civil or a religious form. Marital capacity, for both spouses, ing all the required information, to • Civil marriages are celebrated by is acquired at 18 years of age. the civil registry without delay. the authority in charge of the civil The requirements for the conclu- A minor cannot marry unless register in the district where one sion of civil marriage also apply to authorised to do so by a court for seri- of the intending spouses is perma- religious marriage. ous reasons, and provided the minor nently resident, in the presence of has reached his or her 16th birthday. the mayor or a municipal council- 3.4. Annulment of marriage If the minor has not reached his or lor. If the life of one of the intend- A court may annul a marriage on her 16th birthday the marriage is ing spouses is danger, the marriage its own initiative if a minor was mar- deemed not to have been concluded. can be contracted before any ried without the approval of a court, authority in any place. The intend- unless the husband who was a minor 3.2. Consent ing spouses must submit the docu- at the time of the marriage has since A marriage cannot be contracted ments required by law, must not reached 18 years of age or the wife by someone whose capacity to make know of any impediment to the has become pregnant. legal agreements has been with- marriage and must be aware of A court may annul a marriage on drawn. one another’s state of health. application by one of the parties A person whose capacity to make Marriage by proxy is still possible. when the marriage was celebrated, contract legal agreements is Where there are serious reasons one of the parties lacked full capacity restricted may marry only subject to for doing so, the central-govern- and the marriage was not authorised the approval of a court, granted in ment service responsible may by a court. view of the social benefit of the mar- allow a representative to make the A is deemed never riage. declaration on behalf of a citizen to have been contracted.

4. Protection measures

5. Provisions in criminal law 5.1. Classification of forced marriage mental disability, from the person Chapter VI of the Criminal Code, There is no specific offence of who has charge of him or her by law and particularly the section “Offences forced marriage. or pursuant to an administrative deci- against the family and children”, con- There are, however, new provi- sion. The offence of sale of, or traf- tains provisions specifically designed sions in the Criminal Code on the ficking in, children is committed by to protect children from different offences of abduction (Article 216) “anyone who, in return for remunera- types of assault and violence. Similar and sale of, or trafficking in, children tion, places a child in the care of protection is afforded by the provi- (Article 216(a)). another person with a view to adop- sions of the Chapter V section, Abduction is defined as the tion or forced labour or for other pur- “Offences constituting serious vio- removal of a child, or a person with a poses”. lence against civil coexistence”, and

116 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives the Chapter VIII section entitled Articles 242 and 243 deal with moral development of children or “Offences against freedom and sexual violence, and Article 217 young people. human dignity”. makes it a crime to endanger the 5.2. Prosecutions in cases of forced marriage 6. Provisions of the law on foreign nationals

7. Policies and approaches

Spain

1. International agreements • The United Nations Convention of force on 3 September 1981 in and Cooperation in respect of 7 November 1962 on Consent to accordance with the provisions of Parental Responsibility and Meas- Marriage, Minimum Age for Mar- Article 27, was signed on 5 Janu- ures for the Protection of Children, riage and Registration of Mar- ary 1984 and has been ratified. which entered into force on 1 Jan- riages, which came into force on 9 • The 1989 United Nations Conven- uary 2002, amends the Convention December 1964 by means of any tion on the Rights of the Child was of 5 October 1961 concerning the exchange of letters. Spain adopted signed on 6 December 1990 and Powers of Authorities and the Law the Convention on 15 April 1969. has been ratified. Applicable in respect of the Protec- • The Convention on the Elimina- • The Convention of 19 October tion of Minors. tion of All Forms of Discrimination 1996 on Jurisdiction, Applicable against Women, which came into Law, Recognition, Enforcement

2. Provisions in private international law Article 50 of the Civil Code stipu- contracted under either Spanish law lates that if two foreign nationals or the law of their country of origin. marry in Spain their marriage may be

3. Provisions in civil law 3.1. Marital capacity 3.3. Celebration of marriage where an exception is granted under Article 48; Under Article 46 of the Civil Code 3.4. Annulment of marriage • marriage contracted without a unemancipated minors cannot Under Article 73 of the code, the magistrate or public official or marry, although there is provision for following types of marriage are void, without witnesses; exceptions (Article 48). irrespective of their form of celebra- • marriage mistakenly contracted Persons already bound by a mar- tion: where an error as to the other’s riage cannot marry (Article 47). • marriage contracted without mari- identity or essential characteristics tal consent; crucially affected the consent 3.2. Consent • marriage contracted between per- given; There is no marriage without mar- sons prohibited from marrying • marriage contracted under duress ital consent (Article 46). under Articles 46 and 47, except or threat of serious danger.

4. Protection measures

5. Provisions in criminal law 5.1. Classification of forced marriage principle that the fact of marriage years and two to six years’ disqualifi- does not preclude a charge of rape. cation from holding an official post Title XII of the Spanish Criminal (Article 219(1)). Code deals with crimes committed in A person who celebrates an unlaw- the family. Its first chapter lays down ful marriage to the detriment of the If the ground of nullity was waiva- penalties for illegal marriage. spouses is liable to a term of impris- ble, the disqualification is for onment of between six months and between six months and two years The code includes no specific two years (Article 218(1)). (Article 219(2)). offence of forced marriage. However, it does contain particular provisions A person who authorises a mar- Since 1989 the Spanish Criminal under which prosecutions are possi- riage where a ground of nullity is Code has contained penalties for mar- ble in cases of marital violence. In known or on file is liable to imprison- ital violence. After being taken over addition, case law has established the ment for between six months and two into the new criminal code which

Appendix 2: Working documents : Spain 117 came into force in March 1996, some In Book III of the Criminal Code, rape also applies within marriage. of these provisions were subse- concerning less serious offences, This now constitutes clearly estab- quently amended by Framework Act Article 617 provides for heavier pen- lished case law. 14/1999 of 9 June 1999 concerning alties to be imposed for beating with- the protection of victims of abuse. out causing wounds where the victim 5.2. Prosecutions in cases of forced In keeping with the Spanish Crim- is the spouse. In such cases the pen- marriage inal Code’s two-tier classification sys- alty is detention for between three tem, acts of marital violence are and six weekends and a fine between It is not necessary for the victim to divided into serious and less serious one and two months. This provision lodge a complaint for a prosecution to offences. A serious offence is one already existed prior to the 1999 Act. be initiated. The general constitu- which occasions injuries requiring Article 620 of the Criminal Code, tional duty of all citizens to report medical treatment. concerning threats made with weap- offences of which they have knowl- In Book II of the Criminal Code, ons or dangerous objects, similarly edge extends to the offences covered concerning serious offences, Article provides for heavier penalties where by Articles 153 and 617 of the Crimi- 153 provides that any person “who the victim is the spouse. Courts can nal Code. habitually engages in acts of physical impose the sentence of detention for In addition, in the case of offences or psychological violence against his between two and four weekends. covered by Article 620, in respect of spouse shall be liable to a term of The 1999 Act amended several which prosecutions may, in princi- imprisonment of between six months articles of the Criminal Code, intro- ple, be taken only on the basis of a and three years”. This penalty applies ducing a new penalty which courts victim’s complaint, the 1999 Act pro- in addition to those for offences such can impose in cases of homicide or vides for an exception: if the victim is as assault, which the acts of violence assault or where Article 617 applies. the spouse no complaint is required. constitute. Before the 1999 Act, Arti- Perpetrators may now be barred from The 1999 Act withdrew the Code of cle 153 related only to acts of physical approaching or contacting their vic- Criminal Procedure provision violence and did not deal with inter- tims. The maximum duration for this whereby prosecutions for the lesser spousal violence. type of barring order is five years. offence of spouse abuse could be The same article provides that This provision is additional to other brought only at the victim’s initiative. habituality of such acts of violence is measures already available which assessed on the basis of their number ban perpetrators from visiting or Circular 1/1998, issued by the and frequency, irrespective of how residing in certain places. It is thus Head of Public Prosecutions, empha- many victims are involved and of possible for courts to ban perpetrators sises the need for the prosecution whether the perpetrator has previous of inter-spousal violence from the service to intervene in cases of family convictions. Circular 1/1998 of 24 marital home. violence, and states that such inter- October 1998 from the Head of Public The 1999 Act also amended the vention “may in fact fill a gap in cases Prosecutions, concerning prosecu- Code of Criminal Procedure, enabling where victims refrain from reporting tions for ill-treatment in a domestic courts to bar persons charged with offences, sometimes because of cul- or family context, instructs prosecu- homicide or assault not only from vis- tural, economic or social circum- tors to keep up-to-date registers of iting or residing in certain places but stances which, while understandable domestic-violence cases containing also from approaching certain per- from a human point of view, cannot all information received – police sons. Such a ban may be imposed be taken into account by the courts if forces having a duty to forward all rel- only if it is deemed absolutely neces- offences have been committed that evant reports to the prosecution serv- sary for the victim’s protection. are clearly of a public nature and in ice. Such registers should make it In 1995 the Spanish Supreme respect of which the public prosecu- easier to assess habituality of offend- Court delivered a number of deci- tion service is required by statute to ing. sions to the effect that the offence of act”.

6. Provisions of the law on foreign nationals

Under Framework Act (ley Framework Act 4 of 11 January afford to administrative bodies in orgánica) 4 of 11 January 2000 con- 2000 was amended by Framework Act interpreting them. cerning the rights and freedoms of 8 of 22 December 2000, which sought In order to qualify for family foreign nationals, family life is an to restrict the scope of family reunifi- reunification, spouses must not be entitlement of foreigners living in cation, notably by closing down the separated, either legally or in prac- Spain. possibility of “knock-on” applications tice, and their marriage must have for reunification. been lawfully celebrated. If separa- The Act gives foreign nationals the tion occurs, the spouse who was right to bring into the country certain The provisions of the framework granted a residence permit under the members of their families, who will act were supplemented by regula- family reunification procedure may be issued with permits of the same tions issued on 20 July 2001. A char- be entitled to a permit in his or her duration as that held by the applicant acteristic of these is their lack of pre- own right if the couple have lived in for family reunification. cision and the degree of latitude they Spain for at least two years.

118 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives A foreign national who wishes to Articles 17 to 28 of the Civil Code, In order to qualify, applicants bring family members to Spain must under which foreign nationals may, must have resided in Spain for a min- have accommodation that is suffi- after several years of lawful residence imum period of time, in accordance ciently spacious and comfortable to in Spain, apply to be granted Spanish with the law and without interrup- house them; individual social secu- nationality. Various criteria affect the tion, immediately preceding submis- rity cover and cover for the persons length of residence required, includ- sion of the application. The stipulated admitted under the reunification pro- ing whether or not the applicant is minimum residence period of ten cedure; and adequate financial married to a Spanish citizen. years is reduced to one year for appli- resources whether in the form of cants who have been married to Applicants are required to prove earned or personal income. In assess- Spanish citizens for at least one year that they have been of “good civic ing whether the last condition is met, and are not separated either legally conduct” and are integrated into the administrative authorities bench- or in practice. Spanish society. They are also mark is a Ministry of the Interior reg- Local civil registry offices will for- required to master Spanish. ulation of 1989 concerning the ward applications to the Ministry of resources required of foreign nation- Acquisition of Spanish nationality Justice. als seeking to enter Spain. depends on renunciation of the appli- Spanish nationality is granted in Article 11 of the constitution states cant’s original nationality, except for the form of a decree issued by the that “Spanish nationality is acquired, nationals of states with which Spain Minister of Justice. It is not granted preserved and lost in accordance with has particular ties (namely several automatically and may be refused for provisions established by law”. Latin American countries, Andorra, reasons of public policy or the The rules governing the acquisi- the Philippines, Equatorial Guinea national interest. Decisions can be tion of nationality are contained in and Portugal). appealed to an administrative court.

7. Policies and approaches

Act 35/1995 of 11 December 1995, on the degree of incapacity, in cases recover amounts paid from the party on violent offences, offences against where the incapacity is permanent. civilly liable. sexual freedom and assistance to vic- The sum is then adjusted to take The 1995 Act places a duty on the tims, applies in particular to victims account of personal circumstances public authorities investigating a case of marital violence. Chapter I of the (eg the victim’s financial position and to inform the victim of the possibility Act was given effect by Royal Decree whether there are any dependents). of applying for state aid. Offices of the 738/1997 of 23 May 1997. However, Applications are processed by the Pay public prosecution service were no implementing legislation has yet and Pensions Directorate of the Min- reminded of this duty in Circular 2/ been introduced in respect of Chap- istry of the Economy and Finance. If 1998 of 27 October 1998, issued by ter II (“Assistance to victims”). the ministry turns an application the Head of Public Prosecutions. If an act of marital violence consti- down, the victim may appeal to an The Act also requires the Ministry tutes an offence and incapacitates the independent ad hoc commission set of Justice to set up victim-assistance victim for more than six months, and up under the relevant 1995 act of par- offices at all courts where they are the victim receives no compensation liament. needed. or payment from either a private Circular 1/1998, issued by the The legislation provides for provi- insurance scheme or the social secu- Head of Public Prosecutions, recom- sional aid to be granted pending a rity system, state aid may be payable mends that each office of the prose- court verdict if the victim’s financial under a national solidarity scheme. cution service create a domestic-vio- situation is precarious – a concept Entitlement depends on a final lence unit with specially trained staff. defined by government decree in court decision in the case, and the The largest police stations have 1997. maximum level of any award is fixed units that specialise in domestic-vio- with reference to the national mini- The state may, at a later date, lence cases and there are shelters in mum monthly wage: it will be double require that any money awarded be major cities for women who have left that amount while the victim is inca- paid back if the court finds that no their family homes as a result of ill- pacitated, subject to a six-month wait- offence was committed or the victim treatment. The shelters are run by ing period; and between 40 and 35 receives compensation for injury suf- associations with part funding from times the same amount, depending fered. The state is also empowered to the municipalities.

Sweden

1. International agreements

• The United Nations Convention of riages, which came into force on 9 • The Convention on the Elimina- 7 November 1962 on Consent to December 1964 by exchange of let- tion of All Forms of Discrimination Marriage, Minimum Age for Mar- ters, was signed on 10 December against Women, which came into riage and Registration of Mar- 1962 and ratified on 16 June 1964. force on 3 September 1981 in

Appendix 2: Working documents : Sweden 119 accordance with the provisions of • The Convention of 19 October January 2002, amends the Con- Article 27, was signed on 2 July 1996 on Jurisdiction, Applicable vention of 5 October 1961 concern- 1980 and has been ratified. Law, Recognition, Enforcement ing the Powers of Authorities and • The 1989 United Nations Conven- and Cooperation in respect of the Law Applicable in respect of tion on the Rights of the Child was Parental Responsibility and Meas- the Protection of Minors. signed on 29 June 1990 and has ures for the Protection of Children, been ratified. which entered into force on 1st

2. Provisions in private international law The relevant law is the Interna- Neither marriages involving chil- Exemptions from the rule are pos- tional Marriages Act 1904 (Law 26 dren, however, nor forced marriages sible only on exceptional or particular 1904). are recognised in Sweden. grounds. Since 1 May 2004, under an With regard to recognition of for- amendment to the law, the general A person who marries abroad is rule has been established that a mar- eign marriages in Sweden, if a mar- required to inform the Swedish riage contracted abroad is invalid in riage is valid in another Nordic coun- authorities of the marriage. If the Sweden if one of the parties is a Swed- try with which the spouses have ish citizen or has his or her personal authorities decide that the marriage significant ties it will be valid in Swe- residence in Sweden or if there is an is valid, it will be entered in the regis- den. impediment to the marriage. ter.

3. Provisions in civil law The relevant legislation is the Mar- 3.2. Consent The two parties must be present, riage Act of 1987, no 230. in person, at the same time. Each The 1987 Act as amended stipu- must, on his or her own behalf, con- The Act was amended by Govern- lates that: ment Bill 2003/04:48 which became sent to the marriage in response to • if one party does not give his or law on 1 May 2004. the question asked by the civil her consent during the marriage authority. The civil authority must 3.1. Marital capacity ceremony, the ceremony shall not then declare the two persons mar- be valid and the couple shall not ried. Under the Act as amended, a min- be deemed to be married; imum age of 18 has applied for all 3.4. Annulment of marriage people wishing to be married under • the marriage must be concluded in accordance with the wishes of the If a marriage takes place in spite of the Swedish legislation. The new rule an impediment, a report will be made also applies to international mar- two parties: no one has the right to force another person to marry. to the public prosecution service, riages. Legislation also makes it clear which may, in conjunction with one that child marriages and forced mar- 3.3. Celebration of marriage of the parties, apply to the court of riages entered into in another coun- first instance for immediate annul- try are not recognised in Sweden. The 1987 Act as amended also ment of the marriage. If, under Swedish law, there are includes the following stipulations. A person who is forced to marry by impediments to a marriage the The civil authority who conducts a means of threats or violence is enti- couple will not be deemed to be mar- marriage must be authorised to do so. tled to have the marriage annulled ried. One such impediment is failure Without the necessary authorisation without any waiting period, i.e. to meet the age requirement. the marriage shall not be valid. immediately.

4. Protection measures A person who is being pressurised social services office. The social serv- that he or she receives the necessary into marriage can go the municipal ices staff are empowered to ensure protection.

5. Provisions in criminal law 5.1. Classification of forced marriage repeated commission of offences months and six years, which may imposed in addition to other penal- Since 1998, Chapter 4 of the Crim- against life and liberty, or sexual ties, for example for assault. inal Code, concerning offences offences, directed against women against freedom, has contained an with whom the perpetrator has an In September 1998 a court in Upp- article explicitly penalising marital intimate relationship. Where the sala delivered one of the first judg- violence. offence is committed by a spouse it is ments in such a case. During the The article creates the new classed as “gross violation of a summer of 1998 the accused had offence of “violation of a woman’s woman’s integrity”. It is punishable assaulted his partner on four occa- integrity”, which is defined as the by imprisonment for between six sions in a period of six weeks. He

120 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives received a ten-month prison sen- circumstances, there is a manifest 5.2. Prosecutions in cases of forced tence. risk that the person the prohibition marriage The Government has imple- applies to will commit crimes against Since 1982 the law has provided mented amendments to the Restrain- the life, health, freedom or peace of a that anyone with information con- ing Orders Act (1988:688). The inten- cohabitee. The amendments entered cerning acts of violence or rape can tion is to make it possible to decide on into force on 1 September 2003. initiate a prosecution. It is thus no a prohibition to visit when the parties Since 1965 rape within marriage longer necessary for the victim to have a shared home if, due to special has been recognised as an offence. make a complaint.

6. Provisions of the law on foreign nationals

7. Policies and approaches Increased attention has been given order to enable the authorities to give Commission to the National Board of in recent years to the situation of girls girls the help they need, male vio- Health and Welfare and young women whose daily lives lence against women must be better The National Board of Health and are characterised by an absence of understood and recognised. Welfare has been commissioned by freedom and by coercion, threats or the Government to monitor the estab- While the government’s efforts violence. lishment of sheltered housing and have mainly concerned girls and Some girls are rigidly controlled by investigate the possibility of setting young women, it also needs to look at their families: some – even as chil- up a national system of advisory sup- the situation of boys and young men. dren – are promised to husbands in port for the social services and others, arranged marriages or are forced into The government has taken a within the existing structure of gov- marriage while others are threatened number of measures designed to ernment agencies. The Board had to and coerced if they attempt to live pave the way for further in-depth report on its work by 31 March 2005. work on the subject and to involve like other young people. Good examples and methods authorities at all levels – central, The situation of such girls is highly The government, in co-operation regional and municipal. Some of vulnerable. In many cases, it is the with the Swedish Integration Board, these initiatives are described below immediate family or other relatives the National Institute of Public who oppose the young woman’s Health, the National Board of Health Seminars wishes. Not enough is known about and Welfare, the National Agency for the causes of this type of problem or The government organised a Education, the National Board for about violence carried out for series of seminars for representatives Youth Affairs and the Office of the so-called reasons of honour. of public authorities and religious Children’s Ombudsman, has high- The government has amended the denominations, women’s shelters, lighted good examples and methods law to ensure that if a Swedish immigrants’ organisations and other for preventing conflicts between the national and a foreign national wish NGOs, and experts in the field. The individual and the family that may be to be married by a Swedish civil seminars looked at how public caused by ideas about honour: authority they must satisfy the same authorities and NGOs might cooper- • “Instructive examples – preventing condition as other couples with ate to improve the situation of vulner- individual-family conflicts”, regard to minimum age. able girls and their families. Report 2002:14; The government has also taken • “Fruitful examples are there to initiatives affecting schools, health Sheltered housing and support for the make use of…” (stencil series services, the police and social serv- social services 2002:8), an evaluation of eight ices, with a view to helping young SEK 180 million for sheltered projects designed to promote people to cope with the risk of “hon- housing: for the period 2003–2007, gender equality and prevent con- our-related” violence. If this type of the Government is setting aside SEK flict that were carried out with coercion is to be ended, Sweden’s 180 million for sheltered housing and support from the Board in 1999– efforts need to be coordinated with other measures for young people at 2000; action at international level. risk of violence in the name of • “The 2002 Integration Report” The Focus on prevention honour. In 2003, SEK 20 million were report includes a special chapter Most of the measures that have allocated, the bulk of which went to on conditions affecting the child- been taken are geared to improving the county administrative boards in hood and adolescence of children prevention and the protection of indi- Stockholm County, Västra Götaland and young people from foreign viduals. The government has County and Skåne County to set up backgrounds. A report on this reviewed the types of protection sheltered housing. In 2004 the county assignment was delivered in available to girls and young women administrative boards in the three March 2003; and has attempted to identify short- metropolitan counties have received • “The way in. Voices on integration comings and to clarify the division of SEK 7.5 million each for continued and gender equality”, which gives responsibility between government measures for sheltered housing and specific examples of preventive authorities and other agencies. In other purposes. action, and “Patriarchal enclaves

Appendix 2: Working documents : Sweden 121 or no-man’s-land? Violence, Educating parents “National action plan against violence threats and restraints towards in close relationships” (SOU 2002: The National Institute of Public young women in Sweden”. These 71). Health has been commissioned by reports were published in 2003. the Government to collect, analyse and disseminate information about Other gender equality work Educational material/knowledge survey how to organise different forms of support for parents in order to At the end of 2002, the National On the instructions of the Govern- achieve concrete results. The Insti- Board of Health and Welfare had dis- ment, the Association of Local tute had to submit its report to the tributed SEK 7 million between a total Authorities in Stockholm County has Government no later than 31 Decem- of fourteen women’s shelters for made a survey of knowledge focusing ber 2004. projects for women from immigrant on relations between the individual backgrounds, women substance mis- and the family. The point of depar- Dialogue with religious communities users and women with disabilities. ture for this survey is the crucial role All these projects started in 2003 and played by the family as a carrier of In 2003, acting on Government the National Board of Health and Wel- culture and its influence on the abil- instructions, the Commission for fare is keeping a continuous check on ity of the individual to meet the State Grants to Religious Communi- how work at the shelters is proceed- values and demands of the new coun- ties engaged in more in-depth dia- ing. A number of the projects con- try. The report, which was delivered logue with religious communities on cern girls at risk of violence in the in March 2003 under the title “Work- issues relating to the rights of women name of honour. The experience ing with patriarchal families – A and children. The committee submit- gained will be compiled in a joint survey of activities”, is addressed to ted two interim reports and, on 31 report when the projects come to an the social services, schools/pre- December 2003, a final report. The end. schools and the public authorities Commission was granted SEK 300 000 and NGOs concerned. The material is for continued dialogue with religious “Terrafem”, a support network for available on the Association’s web- communities on society´s fundamen- immigrant women, also received site. tal values. funding for an emergency telephone service in 20 languages to support Project support National action plan against violence in close and assist girls and woman at risk relationships from “honour”-related crimes of vio- Swedish integration board In its interim report (SOU2002:71), lence. In June 2003 it was allocated a the Personal Safety Committee has further SEK 300 000 to continue run- The Swedish Integration Board proposed the adoption of a National ning the service. gives priority to development Action Plan against Violence in Close projects that promote gender equality Relationships. The report has been National centre for battered and raped women and improve the childhood and ado- circulated for comments and is now lescent conditions of young people in under further preparation at the Gov- Since 1994. the National Centre for vulnerable situation. In 2003 more ernment Offices. Battered and Raped Women had than SEK 2.8 million was granted to existed. Converted into a national these types of projects. Guidelines for processing asylum applications institute, its role will be to develop methods for care and treatment and Some of the people applying for Resources from the swedish inheritance fund to serve government agencies, organ- asylum in Sweden may be girls and isations and the general public as a women who need protection from Since 1 January 2003, project sup- knowledge and research centre on family members or other relations. port worth SEK 4 460 000 has been men’s violence against women, The Swedish Migration Board has distributed to associations working to sexual abuse and rape. It was planned adopted guidelines for giving more prevent and combat violence in the to establish a national emergency tel- adequate attention in the asylum name of honour. ephone line for women that are vic- process to women’s need for protec- tims of men’s violence. A report on tion. Some of these guidelines con- Other initiatives this work had to be submitted no later cern education about the concept of than 30 November 2004. “honour”. Information for social services Witnesses, plaintiffs and other persons Action to promote gender equality in pre-schools Acting on the government’s and schools instructions, the National Board of The government has set up a com- Health and Welfare produced and dis- mittee of inquiry on personal safety, A material “How are things? Une- tributed an information booklet about whose task it is to pave the way for a qual thanks! Experiences from the situation of girls who live under national programme for the protec- gender equality activities in primary threat and duress. It is intended for tion of witnesses, plaintiffs and other and secondary schools”, was distrib- use by social services staff and is persons. The committee has pro- uted to all primary and secondary available on the Internet. duced an interim report entitled schools in 2003.

122 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives Switzerland

1. International agreements • The Convention on the Elimina- signed on 24 February 1997 and uary 2002, amends the Convention tion of All Forms of Discrimination has been ratified. of 5 October 1961 concerning the against Women, which came into • The Convention of 19 October Powers of Authorities and the Law force on 3 September 1981 in 1996 on Jurisdiction, Applicable Applicable in respect of the Protec- accordance with the provisions of Law, Recognition, Enforcement tion of Minors. Article 27, was signed on 27 March and Cooperation in respect of 1997 and has been ratified. Parental Responsibility and Meas- • The 1989 United Nations Conven- ures for the Protection of Children, tion on the Rights of the Child was which entered into force on 1st Jan-

2. Provisions in private international law The federal Private International recognised in Switzerland is not abroad will be recognised provided Law Act (LDIP) of 18 December 1987 recognised in the foreign country that it was not celebrated abroad (in the version of 1 June 2004)48 (Article 43(3)); with the clear intention of circum- includes several provisions on mar- • Article 44(1) provides that the sub- venting Swiss statutory provisions riage: stantive requirements for the cele- on the annulment of marriage • Article 43(1) provides that the bration of marriage in Switzerland (Article 45(2)); Swiss authorities are competent to are governed by Swiss law. If the • Minors domiciled in Switzerland celebrate a marriage if one of the substantive conditions under acquire majority if they marry in intending spouses is domiciled in Swiss law are not met, a marriage Switzerland or if they have mar- Switzerland or is a Swiss national. between foreign nationals may ried abroad and their marriage is Intending spouses who are foreign nevertheless be celebrated pro- recognised in Switzerland; nationals and not domiciled in vided that it meets the conditions • Foreign judgments or measures Switzerland may also be author- laid down by the national law of concerning the effects of marriage ised to be married there by the one of the intending spouses (Arti- are recognised in Switzerland if competent authority if the mar- cle 44(2)). The form of marriage they were delivered in the state riage will be recognised in the celebration in Switzerland is gov- where one of the spouses is domi- state where they are domiciled or erned by Swiss law (Article 44(3)); ciled or habitually resides (Article of which they are nationals (Arti- • Article 45(1) provides that a mar- 50). This provision also covers cle 43(2)). Such authorisation riage validly celebrated abroad is decisions on marital property, cannot be refused on the sole recognised in Switzerland. If taken either in the context of ground that a divorce obtained or either of the intending spouses is measures to protect the marital Swiss, or if both are domiciled in union or following a death or the 48. See Rev. crit. DIP 1988, p. 202. Switzerland, a marriage celebrated annulment of the marriage.

3. Provisions in civil law The rules on marriage contained An engagement is not binding on a When each intending spouse has in the Swiss Civil Code of December minor or a person who lacks legal answered in the affirmative, they are 1907 were amended by the Act of 26 capacity unless his or her legal repre- declared to be joined in marriage by June 1998, which came into force on sentative has consented to it (Article virtue of their mutual consent. 1 January 2000. 90(2)). 4.4. Annulment of marriage 3.1. Marital capacity There is no provision for legal In order to contract marriage, both action to require an engaged person Under Article 104 of the Civil Code men and women must have reached to marry if he or she refuses (Article a marriage celebrated by a civil 18 years of age and must be of sound 90(3)). authority can be annulled only on mind (Article 94(1)). one of the grounds provided for in A person who lacks legal capacity 3.3. Celebration of marriage that chapter of the code. cannot contract marriage without the Marriage is celebrated publicly in Absolute grounds for annulment consent of his or her legal representa- the presence of two witnesses who (listed in Article 105) exist if: tive. If consent is refused, application are adult and of sound mind (Article • one of the spouses was already can be made to a court to set the 102). refusal aside (Article 94(2)). married when the marriage was The civil authority asks each celebrated and the previous mar- 3.2. Consent intending spouse separately whether riage had not been dissolved by are made by means he/she wishes to be joined with the divorce or ended by the death of of a promise to marry (Article 90(1)). other in marriage. the other spouse;

Appendix 2: Working documents : Switzerland 123 • one of the spouses was not of • the spouse was, for temporary rea- ately misled about the other sound mind when the marriage sons, not of sound mind when the party’s essential personal charac- was celebrated and has not since marriage was celebrated; teristics; recovered; • the spouse consented to the mar- riage in error, in circumstances • the spouse contracted the mar- • the marriage is prohibited for rea- where he or she either did not riage under threat of serious and sons of kinship. wish to be married or did not wish imminent danger to his or her life, to marry the person with whom Relative grounds on which a the marriage was contracted; health or honour, or to the life, spouse may apply for a marriage to • the spouse contracted the mar- health or honour of a family mem- be annulled (Article 107) exist if: riage in error, having been deliber- ber.

4. Protection measures

The Federal Act of 18 March 1971 to having, if appropriate, placed or in a care home. The purpose of provides that: the child under observation for a support thus provided is to supply • if a child has particular needs with period of time (Article 84). the care, upbringing, education or regard to his or her upbringing, A number of specific provisions, vocational training that the young and notably if he or she is very dif- listed below, apply where a young person requires and to ensure that ficult, has been abandoned or is in person aged between 15 and 18 has he or she attends work or instruc- serious danger, a judicial authority committed a punishable offence tion regularly and makes sound may make an order providing sup- (Article 89): use of his or her leisure time and port, or placing the child with a • if the young person has particular any earnings (Article 91); family or in a care home; needs with regard to his or her • the purpose of support thus pro- upbringing, and notably if he or • the judicial authority may replace vided is to supply the care, she is very difficult, has been this measure with another, subject upbringing and education that the abandoned or is in serious danger, to having, if appropriate, placed child requires (Article 84); a judicial authority may make an the young person under observa- • the judicial authority may replace order providing support, or plac- tion for a period of time (Article the measure with another, subject ing the young person with a family 93).

5. Provisions in criminal law

5.1. Classification of forced marriage 1 a person who engages in human to imprisonment for a maximum trafficking to satisfy the desires of period of five years; Forced marriage is not a specific others is liable to at least six months’ 3. in all such cases, perpetrators offence. It may, however, constitute imprisonment; are also liable to a fine. the offence of human trafficking, punishable under Article 196 of the 2. a person who makes arrange- 5.2. Prosecution in cases of forced Criminal Code, which provides that: ments for human trafficking is liable marriages

6. Provisions of the law on foreign nationals

7. Policies and approaches

Tu r key

1. International agreements

• The Convention on the Elimina- • The 1989 United Nations Conven- ber 2000 and ratified on 29 October tion of All Forms of Discrimination tion on the Rights of the Child was 2002. against Women, which came into signed on 4 April 1995 and has • The Optional Protocol to the been ratified. United Nations Convention on the force on 3 September 1981 in Rights of the Child on the sale of accordance with the provisions of • The Optional Protocol to the Con- children, child prostitution and Article 27, was signed on 20 vention on the Elimination of all child pornography was signed on 8 December 1985 and has been rati- Forms of Discrimination against September 2000 and ratified on 19 fied. Women was signed on 8 Septem- August 2002.

124 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives 2. Provisions in private international law

3. Provisions in civil law The Türk Medeni Kanunu Code of riages cannot celebrate the marriage also lodge an application for annul- 17 February 1926 came into force on (Article 140). ment. 4 October 1926 and was amended sev- 3.4. Annulment of marriage eral times. On 30 January 2002 a new Relative nullity Civil Code, now in force, was adopted Two sorts of nullity - absolute and Either spouse may apply for to replace it. Articles 118 to 160 cover relative - exist. annulment of the marriage in the fol- family law. Absolute nullity lowing cases (Articles 148 to 152): This code applies to all Turkish cit- • where he or she lacked legal Under Article 145 a marriage can izens. There is no system of custom- capacity as a result of a temporary be annulled if it is established: ary law but there are certain tradi- illness when the marriage was • that one of the spouses was tional practices. concluded (Article 148); already lawfully married when the 3.1. Marital capacity marriage was concluded; • where he or she has made a decla- ration of erroneous consent to Under the new Civil Code, the • that one of the spouses lacked marriage on the ground either that legal minimum age of marriage is 17 legal capacity as a result of a he or she did not wish to marry or for both men and women. Where chronic illness when the marriage that he or she did not wish to there are exceptional and proven rea- was concluded; marry the person who became his sons for doing so, a court may, how- • that one of the spouses has a or her spouse (Article 149); ever, authorise the marriage of a mental illness which could seri- young person of either sex who has ously compromise the marriage • where he or she was mistaken reached the age of 16. In such cases bond; about his or her spouse (Article and insofar as possible, the court is • that the spouses are within one of 149/1); required to consult the young per- the prohibited degrees of relation- • where he or she was deliberately son’s father, mother or legal guardian ship defined below. misled as to his or her spouse’s (Article 124). Under Article 129, the following reputation and probity (Article 150/1); 3.2. Consent are prohibited from marrying: • ascendants and descendants, • where he or she entered into the Engagement does not create a brothers and sisters, uncles and marriage under threat of serious, duty to marry (Article 119). aunts, cousins; imminent danger to his or her own 3.3. Celebration of marriage • a spouse and one of his or her par- life, health or reputation or those In order to marry, the man and ents-in-law or children in-law, of either of his or her parents; woman must go to the registrar of even if the marriage which led to • where one of the spouses con- marriages responsible for the area in the relationship is over; cealed a serious illness constitut- which one or other of them is resi- • an adoptive parent and an adopted ing a real danger to the health of dent (Article 134). child, or either of them and the the other spouse and of his or her With regard to the conclusion of other’s ex-spouse or children. descendants (Article 150/2). marriages, if the requirements for In the four cases of nullity set out Where a minor or a person lacking marriage have not been met or if the above, state counsel may initiate legal capacity consented to marriage, documents produced are more than annulment proceedings ex officio. his or her legal representative may six months old, the registrar of mar- Any other person concerned may apply for its annulment (Article 153).

4. Protection measures Law No. 4320 on Family Protection to lodge complaints and obtain pro- complaint. This possibility allows the aimed at preventing forced marriages tection orders. Failure to comply with police and the judiciary to take action and all forms of violence against the law or with a protection measure in the event of a complaint by a third women entered into force in 1998. It can be reported to the public prosecu- party, even where the victim has not was the first time that a legal defini- tor. complained. tion of “marital violence” was given. Under the law criminal proceed- With the aim of combating domes- ings can be triggered without it being tic violence, this law permits victims necessary for the victim to lodge a

5. Provisions in criminal law A new Criminal Code was adopted many specific provisions of relevance 5.1 Classification of forced marriage on 26 September 2004 and came into to forced marriage. The definitions of “woman” and force on 1 June 2005. It contains “girl” have been eliminated as they were discriminatory.

Appendix 2: Working documents : Turkey 125 Sexual offences are dealt with degree, a step-father, an adoptive par- torture are considered as a separate under the head of “Crimes against the ent, a guardian and so on. offence, with the aim of ensuring that person”. The conditions of repentance that the perpetrators receive appropriate The concepts of rape and indecent lead to suspension of trial proceed- punishment. An aggravated sentence assault under duress have been ings or of a sentence have been well is pronounced where one of these replaced with the concepts of sexual defined. There can be no suspension, offences is committed against a child, assault and sexual exploitation of chil- reduction or remission of sentence a pregnant woman or a physically or dren. where a person was kidnapped or mentally vulnerable person incapa- The offence of sexual assault and held against their will and forced into ble of self-defence. Where a person the circumstances of its commission marriage with the accused or con- dies as a result of one of these have been well-defined. Aggravated victed person. offences, the perpetrator incurs the circumstances exist where the Perpetrators of honour crimes penalty of life imprisonment. offence involves penetration with an incur the maximum penalty for the Forcing a woman to undergo a organ, an object, etc. offence committed. This category of gynaecological examination where it In the event of a sexual offence offence was introduced under the has not been ordered by a court or the with aggravating circumstances article making life imprisonment the public prosecutor carries a prison resulting in mental or physical harm penalty for intentional homicide. sentence of three months to one year. to the victim, a more severe sentence Family members or close relatives Sexual relations with a minor qual- applies. Where a victim who is in a who kill a woman who has been the ify as a separate offence. coma following commission of the victim of a sexual assault on the All authors of crimes against offence dies, the penalty incurred is ground of protecting the family’s humanity, including ill-treatment or life imprisonment. honour do not benefit from mitigat- torture, forcing people to undergo Upon lodging of a complaint by ing circumstances. biological experiments, offences the victim an investigation can be Deliberately injuring a descendant against sexual integrity, forced preg- opened or criminal proceedings can or ascendant, a spouse, a brother or a nancy and incitement to prostitution, be instituted. Under the new code sister constitutes an aggravated are liable to life imprisonment with- rape between partners qualifies as a offence. out any possibility of limitation. crime carrying severe penalties. This The offences of torture and ill- change in the law is intended to treatment have been grouped 5.2 Prosecutions in cases of forced punish marital rape. together under the head “Torture and marriage Sexual exploitation of children is ill-treatment”, in the light of the obli- Criminal proceedings can be initi- defined as an “offence against sexual gations resulting from the interna- ated without a complaint being integrity”. An aggravated sentence is tional conventions to which Turkey is lodged by the victim. This allows per- incurred where the offence is perpe- party. In consideration of those obli- sons close to a victim of forced mar- trated by a descendant, an ascendant, gations, and in particular to prevent riage to report the offence and trigger a blood relation of the second or third violations of human dignity, acts of the procedure.

6. Provisions of the law on foreign nationals

7. Policies and approaches

One of the key protection meas- • women who have successfully There is also a telephone hotline ures for women at risk of violence is overcome problems of drug addi- (ALO 183), which operates during the provision of special shelters. tion or alcoholism following spe- working hours, which women and Constant efforts are made to cific treatment; children, in particular victims of vio- increase the number of shelters. • women rejected by their families lence and sexual exploitation, can call There are currently thirteen shelters because they have given birth to for advice on legal procedures, psy- managed by the Directorate of Social children out of wedlock. chological counselling and public- Affairs and Child Protection at the In addition, Law No. 5257 on local awareness measures. government has helped to increase Prime Minister’s Office and eleven Some government agencies also the number of reception facilities, managed by various private-sector operate web-sites, which may be since it requires all municipal author- bodies. useful to families, women or children ities to come to the assistance of Shelters take in women in the fol- in need of information and advice; women and child victims of violence. lowing categories: Municipalities with more than 50 000 • http://www.aile.gov.tr • women who have been abandoned inhabitants are obliged to open pro- e-mail: [email protected] following a marital dispute; tection centres. • http://www.ksgm.gov.tr • victims of physical violence or These municipal measures will e-mail:[email protected] sexual or physical assaults; help to improve the quality of the • http://www.die.gov.tr • women suffering financial hard- protection and support provided to ship; victims. • http://www.shcek.gov.tr

126 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives United Kingdom

1. International agreements

• The United Nations Convention of force on 3 September 1981 in and Cooperation in respect of 7 November 1962 on Consent to accordance with the provisions of Parental Responsibility and Meas- Marriage, Minimum Age for Mar- Article 27, was signed on 7 April ures for the Protection of Children, riage and Registration of Mar- 1986 and has been ratified. which entered into force on 1 Jan- riages, which came into force on 9 • The 1989 United Nations Conven- uary 2002, amends the Convention December 1964 by exchange of let- tion on the Rights of the Child was of 5 October 1961 concerning the ters. The United Kingdom adopted signed on 16 December 1991 and Powers of Authorities and the Law the Convention on 9 July 1970. has been ratified. Applicable in respect of the Protec- • The Convention on the Elimina- • The Convention of 19 October tion of Minors. tion of All Forms of Discrimination 1996 on Jurisdiction, Applicable against Women, which came into Law, Recognition, Enforcement

2. Provisions in private international law

3. Provisions in civil law

Under Section 1 of the Family Law ages in order to obtain a marriage 3.4. Annulment of marriage Reform Act 1969, a person who is not licence – i.e. a civil-status authorisa- Actions for annulment of marriage yet 18 years of age is a minor. The tion for two individuals to marry. are of two types depending on concept of emancipation of a minor A marriage may be celebrated whether the marriage in question is does not exist in systems of common according to the rite of the Church of void or voidable. In the case of a void law. The common-law rules have, England, in the presence of a marriage, the parties are entitled to however, been modified by case law, member of the clergy and between 8 disregard the marriage entirely with- establishing that minors enjoy legal am and 6 pm, following the cere- out any need to apply to a court. A capacity to take decisions affecting mony set out in the official liturgy. At , on the other hand, their personal lives – for example least two witnesses are required. is valid in all respects until it is pro- about marriage – provided that they Three formalities precede the cere- nounced void by a court. Decisions of have sufficient intelligence to form mony, namely publication of the nullity do not have retrospective their own opinions and understand banns, issue of a marriage licence effect. In the case of a void marriage, the implications of their decisions and receipt of a registrar’s certificate. any interested party may bring an (see Halsbury’s Statutes). Marriages may also be celebrated action for annulment. In the case of 3.1. Marital capacity according to non-conformist rites on voidable marriages, only the spouses are entitled to do so. Under Section 2 of the Marriage condition that the building used A marriage is automatically void if Act 1949 and Section 11(a)(ii) of the meets certain legal stipulations and one of the spouses lacked marital Matrimonial Causes Act 1973, a mar- that a certificate or licence has first capacity, if there was a failure to meet riage cannot be contracted if both been duly obtained. A registrar need formal requirements, if there is a pro- parties are under 16 years of age. In not be present at the ceremony. hibited degree of kinship between the the case of parties aged 16-18 the con- Marriages celebrated according to spouses, or if the marriage was con- sent of a legal representative is the rites of Judaism or certain other tracted while one of the spouses was required. If consent is refused with- religions are also permitted. In such already married. This means that any out good reason, or cannot be cases a registrar’s certificate must be marriage involving at least one obtained, a court ruling may be presented before the ceremony. spouse aged under 16 is void. The sought. Quaker marriage may be celebrated rule applies to any person domiciled 3.2. Consent in any meeting place, even if it lies in the United Kingdom and to his or outside the territory of the registry Under common law, both spouses her spouse, irrespective of where the responsible, and the same applies to must consent freely to become man marriage was celebrated. An action Jewish marriage. and wife. for annulment can be brought by any Section 12 of the Matrimonial Civil marriage is another option – person with an interest in doing so. Causes Act 1973 provides that con- in the registrar’s office in the pres- Failure to meet the formal require- sent must not be vitiated by any ence of two witnesses. The spouses ments renders a marriage absolutely factor such as violence. will be questioned about their inten- void. A marriage is not invalidated, tion to contract the marriage, and a however, by absence of parental con- 3.3. Celebration of marriage certificate is required. Purely civil sent where one of the intending Intending spouses must present marriage is common nowadays. It is a spouses is a minor. themselves at a registry office with fully effective procedure in itself and Vitiated consent renders a mar- identity documents attesting their no religious ceremony is necessary. riage voidable.

Appendix 2: Working documents : United Kingdom 127 4. Protection measures New legislation passed in the UK couple has rights to the home, the parental authority, which is derived in 1996 gave increased civil-law pro- court may, for example, make the from case law. Further to Section 35 tection to victims of domestic vio- occupation order conditional on the of the Education Act of 1944, it has lence. payment of rent by the spouse occu- been interpreted as implying that In England and Wales, victims are pying the home to the spouse who parents are entitled to care, custody entitled under Part IV of the Family has rights to it. and possession of the child and have Law Act 1996, which came into force In the first year of operation of a duty to ensure that he or she on 1 October 1997, to apply to a civil these provisions, British courts made receives appropriate full-time educa- court for sole occupation of the matri- 9 000 occupation orders. tion between the ages of 5 and 16 monial home (an occupation order) The scope of protection orders years. and an order that the domestic vio- varies widely and courts also have Under the Supreme Court Act lence stop (a protection order). discretion with regard to their dura- 1981, the High Court may make a If a victim is in real danger or is tion. They may impose very minor legal guardianship order if it is in the likely to discontinue proceedings restrictions such as barring a perpe- child’s interests to do so. This implies against the aggressor, the court may trator from telephoning a victim, or that the High Court assumes general make this type of order without may be much more generally prohib- responsibility for the child’s interests giving the aggressor prior notice. itive. while placing him or her under the The Family Law Act applies irre- Since the current provisions for physical protection and control of a spective of the nature of the ties protection orders came into force, the specific individual or a local author- between aggressor and victim. Its Ministry of Justice has been evaluat- ity. provisions differ to some extent, how- ing their effectiveness. In the first Local authorities are required, ever, according to whether the case year of application of the legislation, under Section 47 of the Children Act involves married or engaged couples, courts made 19 000 such orders. 1989, to provide accommodation for for example. A court may stipulate that any fail- children who are in serious and A victim may be given sole occu- ure to comply with a protection order immediate danger. pancy of the family home even in the will incur immediate arrest, without A child under 16 may be the sub- absence of any legal right of owner- need for a warrant. ject of a care, supervision or protec- ship or tenancy. The court will take With regard to the protection of tion order. In such cases the child its decision on the basis of the cir- minors, the key principle is that of may be removed from the family cumstances in the case, and has a child welfare. Article 1 of the Chil- home. Under Section 32 of the Chil- large measure of discretion: it may dren Act 1989, for example, provides dren Act, this is done in response to divide the accommodation, awarding that the child’s interests are the main an application by the authorities if sole occupancy of part of it to the vic- factor a court must take into account the child has suffered, or is at risk of, tim, may require the aggressor to in deciding issues concerning chil- substantial harm. leave the premises, or may bar the dren. Under Section 44, emergency pro- aggressor from the area in which the In accordance with the principle tection orders can be made in respect home is situated. This type of court that the welfare of the child comes of any child believed to be at risk of order is valid for six months but may first, the Children Act introduced a substantial harm if not transferred be extended for further periods of six change of terminology: the law now immediately to a place of safety. months, the number of extensions refers to parental responsibility Orders of this type are for a maxi- depending on the respective part- rather than parental rights. The Act mum of eight days, with provision ners’ rights to the home. If one of a itself does not define the substance of under Section 45 for extending them.

5. Provisions in criminal law 5.1. Classification of forced marriage assaults against children, the Inde- with the penis, i.e. by any means cency with Children Act 1960. More including with objects. Perpetrators There is no specific offence of recently, in November 2003, Parlia- of this offence may be male or forced marriage. Common law in ment adopted a new Sexual Offences female. respect of criminal offences does, Act. The law makes an irrebuttable pre- however, include provisions that can The offence of rape depends on sumption of non-consent in the case form a basis for penalising the prac- absence of victim consent. In the of minors aged under 13. The maxi- tice, albeit not directly but rather case of a male perpetrator it means mum penalty in such cases is life through prosecution for other having sexual intercourse with a imprisonment. offences (which can also occur out- woman, or another man, who does If the victim is aged between 13 side forced marriage). not consent to it. and 16 years the maximum penalty is These include sexual offences, The new Act extends the defini- 14 years’ imprisonment. which are covered by the Sexual tion of rape, which now includes acts Another form of sexual offence is Offences Act 1956. In addition, there of fellation. It also creates an offence intentional sexual touching of is specific legislation on indecent of assault by penetration other than another person without that person’s

128 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives consent. Here again there is an irre- caused to perform a sexual act on Violence within marriage may also buttable presumption of non-consent himself or herself, or even just come under the scope of legislation in the case of minors aged under 13. undress. passed in 1997 providing protection Sexual offences that do not involve Penalties vary according to the against harassment, which has been the use of threats or violence are cov- nature of the sexual act and the defined as an offence in the following ered by Section 9 of the Act, “Sexual attempt to incite, as well as the vic- terms: “a person whose course of con- activity with a child”. This section tim’s age. duct causes another to fear on at least makes it an offence to engage in This legislation can be used to two occasions that violence will be sexual intercourse with a minor aged prosecute parents. used […] against him is guilty of an under 16, even with the minor’s con- It is not necessary for a victim to offence”. sent. make a complaint in order for crimi- Since the early 1990s the courts There is, however, a possible nal proceedings to be instituted. have handed down convictions for defence in such circumstances if the Under ordinary law, any member of rape between partners, but there minor was aged between 13 and 16 the public is entitled to initiate a pros- have been very few such cases. Some years, and the accused thought that ecution (although, as rule, it is the judges take account of length of mar- he or she was 16 or over and could police who do so). In practice this riage as a potential mitigating factor. not reasonably have believed other- aspect of the law is very useful with In October 1999, for example, the fact wise. regard to forced marriages as it ena- that a man who had raped his wife Penalties for such offences vary bles members of the family of a had been married to her for 17 years according to the nature of the sexual victim of forced marriage to set the was deemed sufficient ground for act involved. criminal justice process in train. sentencing him to just two years’ There is an irrebuttable presump- The maximum penalty for sexual imprisonment. tion that rape was committed if the assault is life imprisonment. The fact that rape within marriage victim was under 13. Acts of violence between partners can thus be punished offers scope for Sections 8 and 10 of the Act cover do not constitute a specific offence. penalising forced marriages even if the offence of causing or inciting a They are often classed as intimida- the length of the marriage is treated child to engage in sexual activity. Sec- tion or assault. Ordinary law is appli- as a mitigating circumstance. tion 8 applies to minors under 13 cable in such cases but the judge, who years of age, while Section 10 relates enjoys a large measure of discretion, 5.2. Prosecutions in cases of forced to minors aged 13 to 16. These provi- can take into account the links marriage sions constitute a basis for prosecut- between aggressor and victim in No complaint from the victim is ing persons who cause or incite a determining the sentence. Violence needed for a perpetrator of violence minor (successfully or otherwise) to between partners may thus lead the to be prosecuted. Anyone with a have sexual relations with a third courts to impose heavier sentences. knowledge of facts suggesting that an party or with the perpetrator. They Marriage is regarded as a circum- offence has been committed is at lib- also cover the case of a minor being stance aggravating the offence. erty to report them.

6. Provisions of the law on foreign nationals

Family reunification is not an enti- needs without resort to certain social sound reputation and must be law- tlement for any family members. All benefits. fully resident in the UK. Foreign reunification measures are subject to The spouse will be granted a resi- nationals with a criminal record must administrative permission. dence permit valid for one year. At wait for between six months and ten Anyone who is the spouse of a for- the end of that period the couple years from the date of their convic- eign national lawfully resident in the must again prove the authenticity of tion before applying for naturalisa- United Kingdom may apply to benefit their marriage, and a permit of tion. Persons who have been sen- from family reunification. In order to unlimited duration may then be tenced to imprisonment for more obtain administrative authorisation granted. than two-and-a-half years are not eli- the applicant must be over 16. Fur- Before 1 January 1983, when Sec- gible for naturalisation. Spouses of ther requirements are that the tion 6 and Annex 1 of the 1981 British British citizens are required to meet spouses should have met one Nationality Act came into force, another, should intend to live perma- women who married British citizens only two conditions: they must nently together and should be capa- automatically obtained British nation- intend to establish their main resi- ble of providing for themselves with- ality. dence in the UK and must have a suf- out resort to public funds, i.e. they Now, however, spouses of British ficient knowledge of English. should not be dependent on any non- citizens, of either sex, can obtain contributory social benefit. nationality only through naturalisa- A bill on nationality, immigration The foreign national resident in tion, although the requirements for and asylum has proposed the further the UK must have accommodation naturalisation are less restrictive for condition that applicants should have suitable for the family members and spouses than for other foreign appli- sufficient knowledge of life in the must be capable of meeting their cants: the foreign spouse must have a UK.

Appendix 2: Working documents : United Kingdom 129 Naturalisation does not require the applicant’s morality, are not stated. Decisions may not be renunciation of the applicant’s origi- directly related to him or her and appealed. nal nationality. have not been convicted of a criminal offence in the previous ten years. Naturalisation only becomes defin- Spouses of British citizens may itive when the successful applicant apply for naturalisation after three Applicants must submit a naturali- has taken an oath of allegiance to the years’ residence in the UK. During sation form to the Home Office Immi- Queen. The bill on nationality, immi- that period they may be absent from gration and Nationality Directorate. gration and asylum under considera- the country for a total of 270 days, but Administrative authorities or the tion at the time of writing proposes not for more than 90 days annually. police may call applicants for inter- the further condition of a commit- view and request additional informa- Even if they are married to British tion. ment to basic United Kingdom val- citizens, applicants must be spon- ues. The oath would be taken and the sored by two other British nationals Applications may be rejected with- commitment made at a formal cere- aged 25 or over, who can vouch for out the grounds for rejection being mony.

7. Policies and approaches

Since 1979, victims of marital vio- in need of help, notably women who the situation in 2000. It also explores lence have no longer been excluded have left the marital home. The local solutions to the problem: the report from entitlement to the financial sup- authority is required to provide recommends that forced marriage port payable to the victims of crimes accommodation in such situations for should no longer be dealt with as a of violence generally – as provided a period of two years. In most cases, family issue but rather as a breach of for in the 1995 Criminal Injuries people who need emergency accom- the law. It should be reported to the Compensation Act. modation are placed in hostels or police, and parents could then be shelters for a few days while the local charged with kidnapping, domestic Victims receive financial support authority considers their circum- violence or child abuse. only where the perpetrator of the vio- stances and tries to find housing for lence has been prosecuted and the them. In January 2001, the Home Office victim has ceased to live perma- Immigration and Nationality Directo- nently with the perpetrator. In general the Home Office rate funded a project to crack down encourages all initiatives, private or on forced marriage, as a result of The support, which is paid by an public, that are designed to combat independent ad hoc body known as which 240 cases were resolved and 60 marital violence. There are 400 shel- the Criminal Injuries Compensation girls who had been held in the coun- ters in England and around 50 in Authority, takes the form of a one-off try against their will were repatri- Wales, and several telephone help sum, the amount of which is deter- ated. lines are open 24 hours a day. There mined according to an official scale. It are 200 multidisciplinary groups rep- may be paid to cover exceptional Associations also play an impor- resenting the main administrative expenses (such as the cost of work to tant role. Anti-Slavery International, authorities and associations con- the home). for example, founded in 1839, lobbies cerned. Information campaigns are states in which slavery still exists to organised and GPs receive special If a victim has to stop work for bring forward measures to end it (and training in recognising the signs of more than 28 weeks as the result of it defines forced marriage as a form of marital violence. an attack, compensation for loss of slavery). It promotes research and earnings may be payable from the works with local organisations to 29th week. A central role is played by the gov- ernment’s Joint Action Plan, and by raise awareness of the problem In 1990 the Home Office issued a the Community Liaison Unit of the Other associations working in the circular encouraging police forces to Foreign and Commonwealth Office, field are Southall Black Sisters, a set up specialist units at police sta- which deals with some 200 cases a tions, to which victims of marital vio- year. group that defends single women’s lence could turn for help. Women are rights and handles some 200 cases entitled to request that they be dealt Social services and the police have annually, and Reunite which works with by a female police officer. an essential function in applying to combat forced marriage. practice guidelines. The 1996 Housing Act, which In March 2002, a video was pro- came into force on 1 January 1997, The Home Office monitors the duced to raise awareness among 12- places a duty on local authorities to phenomenon of forced marriages, to 18-year-olds of the problem of provide accommodation for persons and it published an updated report on forced “marriages”.

130 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives