Forced marriage is the marriage of one person to another person without the consent of one or both of the parties.Claire Green "Forced and Underage Marriages: A Pressing Human Rights Issue in New Zealand?" (2015) 8 NZFLJ 96 at 96. It is to be distinguished from an arranged marriage, where the parties ultimately retain the right to refuse, whereas forced marriage employs tactics such as violent threats, emotional coercion, financial control, or immigration status blackmail to completely strip individuals of their autonomy. Forced marriage is widely recognised as a human rights abuse, with some commentators considering it a form of slavery.
Prevalence of forced marriage in New Zealand
There is a lack of reliable statistics on rates of forced marriage in New Zealand. Some international reports considering the issue have relied on rates of registered marriages in New Zealand in which one party was under the age of 18. In 2013 there were 57 registered marriages in which one party was under the age of 18, consisting of 0.29% of registered marriages that year. However while many forced marriages involve a party under the age of 18, i.e. a minor participant, not all marriages involving a minor are forced marriages.
It is also widely recognised that many forced marriages may occur within ethnic or religious communities and derive their legitimacy from community recognition. As such marriages are viewed as legitimate by the community, they are often not registered and are difficult to track.
Community groups such as Shakti, a non-governmental organisation (NGO) that works to reduce domestic violence in migrant communities, have anecdotal evidence of forced marriage occurring in New Zealand. Higher rates of forced marriages have been found in Auckland in comparison to other urban centres, reflecting the higher concentration of African, Asian and Middle Eastern ethnic groups in Auckland (communities in which forced marriage is more likely to occur). However it is widely accepted that Shakti's anecdotal evidence does not truly reflect the extent of forced marriage in New Zealand, as many victims of forced marriage do not report their abuse and may be isolated within their own communities.
Current legislative framework
Requirement of consent
Under section 17 of the Marriage Act 1955, a marriage cannot take place if a party is under 16 years of age.Marriage Act 1955, section 17 Sexual activity with a person under 16 years of age is also illegal.Crimes Act 1961, section 134 . In addition to this, current New Zealand law requires that one party to a registered marriage sign a statutory declaration stating that there is free consent to the marriage.Marriage Act 1955, section 20 . There is no requirement that both parties individually indicate that they have both consented to the marriage. The legislative requirement of explicit consent of only one party has been criticised by some scholars, who suggest that in forced marriages the consenting (and not forced) party will simply sign the declaration and thus suggest falsely that consent existed.Priyanca Radhakrishnan "Unholy Matrimony: Forced Marriage in New Zealand" (Masters Thesis, 2012) at 86. .
Parental consent is additionally required before the marriage of minors aged 16 or 17.Marriage Act 1955, section 18 . However, in many cases forced marriages are supported and arranged by parents and thus this requirement of parental consent does not protect the free consent of minors.
Criminal provisions
There is currently no specific provision prohibiting forced marriage in New Zealand, but prosecution of those who force marriages may take place under several criminal offence provisions. Many scholars identify a likely avenue for prosecution as section 208 of the Crimes Act 1961 ('Abduction for purposes of marriage or sexual connection'). Additionally there may be liability under other provisions in the Crimes Act 1961 such as section 98 ('Dealing in Slaves'). It is however alleged that such provisions do not adequately address the issue of forced marriage. For example, a genuine mistaken belief in consent is a defence to section 208 liability and it may be hard to prove that such a mistaken belief did not exist.
Declaring a marriage invalid due to duress
Section 31 of the Family Proceedings Act 1980 also provides that a marriage may be declared invalid if there was duress upon entry into the marriage.Family Proceedings Act 1980, section 31 . This may allow victims of a forced marriage to have the marriage invalidated. The UN's Working Group on Women's Rights has promoted the availability of such legislation for victims of forced marriages who are minors in order to recognise the inappropriateness of forced marriage.Working Group on Women's Rights "Report of the Working Group on the Issue of Discrimination Against Women in Law and in Practice" (2015) (A/HRC/29/40) at 27 . Despite the existence of section 31, the courts have been unwilling to use this provision in practice because they have rarely made a finding of duress upon entry into marriage. In H v H, the claimant requested a voiding of the marriage ab initio due to duress under section 31.H v H NZFLR 145 at 146. Consent had allegedly been removed because of family pressure to comply with the marriage. The Court referred to the applicant as having feelings of fear about 'displeasure, disgrace and ostracism'. However the Court refused to find that there had been duress leading to the marriage because the respondent was not underage, was raised in New Zealand, and was 'intelligent and relatively sophisticated'.H v H NZFLR 145 at 148. The Court found that the applicant had simply desired to respect her culture, please her family and avoid embarrassment. Critically, the Court held that many marriages are not based on love and thus that feelings of wanting to please family were a normal part of a decision to marry.H v H NZFLR 145 at 149. In Ali v Abbas, an application for voiding of a marriage based on duress was also not upheld.Ali v Abbas NZFLR 303 at 310. Evidence that the applicant was prompted to marry through fear of alienation and persecution was again rejected. Although the courts did not find duress in family pressure to consent to the marriage, it is acknowledged that family pressure may in fact lead to a forced marriage.
International obligations
New Zealand is party to a number of international obligations to end forced marriage. It is a signatory to various conventions that protect free consent to marriage. Examples include the Universal Declaration of Human Rights (article 16(2)),Universal Declaration of Human Rights . the International Covenant on Civil and Political Rights (article 23(3)),International Covenant on Civil and Political Rights . the Convention on the Elimination of All Forms of Discrimination Against Women (article 16(1)(b)),Convention on the Elimination of Discrimination Against Women . and the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (article 1(1)).Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages . All these provisions are similar and emphasise the requirement of free consent to marriage for both men and women. Additionally, the Convention on the Rights of the Child requires signatories to prevent sexual abuse against children (article 19) and end practices that prejudice children (article 24(3)).Convention on the Rights of the Child . Altogether, these obligations require New Zealand to take appropriate steps to prevent forced marriage from occurring.Claire Green "Forced and Underage Marriages: A Pressing Human Rights Issue in New Zealand?" (2015) 8 NZFLJ 96 at 97.
Forced marriage as a form of slavery
The UN Working Group on Contemporary Forms of Slavery has identified forced marriage as a form of slavery. New Zealand is also a signatory to the Supplementary Convention on the Abolition of Slavery. This prohibits slavery and institutions and practices akin to slavery.Supplementary Convention on the Abolition of Slavery . Article 1(c) suggests that the forced giving of a woman in marriage, without her consent, is a practice akin to slavery and should be therefore outlawed. Other scholars have suggested that the prohibition on slavery may be a jus cogens norm of international law, and that therefore New Zealand must take immediate action to end the practice of forced marriage.
Soft law obligations
In addition to New Zealand's binding convention obligations, New Zealand has participated in the creation of various soft law documents that encourage actions to be taken to stop forced marriage. United Nations General Assembly Resolution 71/175 recognises the problem of forced marriage and emphasises the importance of free consent to marriage as a human right.United Nations General Assembly Resolution 71/175 . Number 5 of the UN Sustainable Development Goals includes the removal of practices harmful to women, such as early and forced marriage.UN Sustainable Development Goals (2015) No. 5 "Improve Gender Equality and Empower All Women and Girls" .
Treaty body reporting and international commentary
Treaty body reporting on New Zealand's progress in reducing incidences of forced marriage has not been favourable. A 2012 Committee on the Elimination of All Forms of Discrimination Against Women report noted that there was significant concern about lack of legislation to prevent forced marriage and uphold the rights of those who are affected by forced marriage. These concerns were echoed in a 2016 Committee on the Rights of the Child report, which recommended that New Zealand reform legislation to prohibit all marriages under the age of 18. The 2016 Committee on the Rights of the Child report additionally recommended that programs be developed to raise awareness of the issue of forced marriage.
In addition to direct treaty body reporting to New Zealand, UN organs have released a number of statements about the importance of reducing forced marriage rates. The Committee on the Elimination of All Forms of Discrimination Against Women released General Recommendation No. 35 in 2017, which recognised forced marriage as a form of gender-based violence and recommended the repeal of any provision that permitted this. This was an echo of a much earlier Recommendation in 1994 (No. 21), which again recommended that states take all measures to ensure that there is free consent to marriage and that children were not parties to marriages. A 2015 report by the Working Group on Women's Rights called for a number of efforts to be made to reduce incidences of forced marriage, and appropriately care for victims of forced marriages by invalidating such marriages and protecting custody of children, the right to remarry, and matrimonial assets.Working Group on Women's Rights "Report of the Working Group on the Issue of Discrimination Against Women in Law and in Practice" (2015) (A/HRC/29/40) . In addition the Commission on the Status of Women presented a number of agreed conclusions in 2013, one of which included the importance of ending forced marriage.Commission on the Status of Women "Agreed Conclusions" (2013) (E/CN.6/2013/11) .
Cultural rights issue