Civil Laws on Forced and Child Marriage
last updated October 2014
 

In partnership with UN Women, The Advocates for Human Rights created the following sections for UN Women's Virtual Knowledge Centre to End Violence against Women and Girls. This section, along with sections addressing other forms of violence against women and girls, may be found under Legislation at www.endvawnow.org.

Registration of marriages and births

Drafters should ensure that laws require the registration of births, deaths and marriages as a means of tracking marriages and parties’ ages. Drafters should ensure that registration is required for all marriages, including both civil and customary unions. CEDAW, Gen. Rec. 29. Data gathered through registration systems should be used to monitor and facilitate enforcement of the minimum marriage age standard, as well as compile statistics on marriages.

Polygamous marriages pose particular challenges for registration systems. In states where polygamy is illegal, parties may not register their additional marriages for that reason. Drafters should ensure that laws require religious leaders who perform marriage ceremonies first verify that the couple possesses a government-issued marriage certificate permitting them to marry. For example, the Tajik President issued an oral instruction to amend a 2007 Law on Traditions that mandates mullahs to require a civil marriage certificate before performing a Nikoh/Nikkah marriage. Public education, outreach and monitoring are essential to facilitating compliance with this requirement. (See: Marriage Vows Not Always Enough in Tajikistan, Institute for War and Peace Reporting, 2009) Drafters in countries where polygamy is still covertly practiced should modify marriage registration requirements to allow a wife the ability to register her marriage independent of her husband.

Tool:

Enhancing Capacities to Eradicate Violence Against Women is a guide to help countries and regional partnerships develop enhanced data collection and surveys to gather information about violence against women. (UN Regional Commissions, 2013).

Promising Practice: Sierra Leone’s Registration of Customary Marriages and Divorce Act (2007) requires the registration of customary marriages. Either or both parties must notify the local council in writing within six months of the marriage. The registration must state the names of the parties, place of domicile, and that the conditions necessary for the customary marriage have been met. Any person who objects to the validity of the marriage under customary law may file an objection in the court. This latter is an important mechanism for civil society to monitor compliance with the law. The law prohibits marriages of children under 18 years of age unless their parents/guardians have consented. The law prohibits additional marriages under customary law when a Muslim, Christian or civil marriage already exists and vice versa.

If drafters choose to adopt legislation similar to that of Sierra Leone, drafters should ensure that the marriage registration process requires both parties to list their birth dates to ensure that parties are of legal age to be married. Where official birth records are not available, drafters should provide for alternative means of age validation, such as witness affidavits and school, baptismal and medical records.

Also, laws must take into account illiteracy rates that may prevent parties from registering their marriages. Drafters should provide for oral registration and an alternative signature, such as a fingerprint, and fund and train local civil society to provide free assistance in customary marriage registration.  

U.S. Department of Health and Human Services, Centers for Disease Control, has developed a Handbook on Marriage Registration that may serve as a template. 

Also, laws must take into account illiteracy rates that may prevent parties from registering their marriages. Drafters should provide for oral registration and an alternative signature, such as a fingerprint, and fund and train local civil society to provide free assistance in customary marriage registration.  

U.S. Department of Health and Human Services, Centers for Disease Control, has developed a Handbook on Marriage Registration that may serve as a template.  

CASE STUDY: South Africa’s Recognition of Customary Marriages Act requires spouses in a customary marriage to register within three months of the marriage. Those who entered into a customary marriage prior to the act’s entry into force have 12 months from the date of implementation of the act to enter into force. The bodies authorized to register these applications include the Home Affairs domestic office, or a designated traditional leader in areas where traditional leaders have been so designated. Spouses, plus a minimum of one witness for each of the spouses’ families, and/or the representative of each of the families are to report for registration. Where one or both of the spouses were a minor at the time of a customary marriage entered into after November 15, 2000), they must have obtained consent of their parents, guardian, Commissioner of Child Welfare or High Court Judge, and the parents must be present at registration. Drafters should prohibit any customary marriages that allow a minor to marry irrespective of third party consent.

Civil remedy for victims of forced marriage

Drafters should include a civil order for protection remedy for victims under threat of forced marriage or already in a forced marriage. The civil order for protection remedy should include the option for an emergency ex parte protection order. Laws should criminalize violations of protection orders. Drafters may apply much of the same theory on domestic violence to orders for protection in forced marriage cases: the goals are to afford protection to the victim through a speedy process that acts as an alternative to criminal prosecution. (See: Drafting Legislation on Domestic Violence, Orders for Protection, and Sample Orders for Protection, Stop VAW, The Advocates for Human Rights for information on orders for protection in domestic violence cases)

Laws should ensure that where the petition is filed by a third party on behalf of an adult woman, the petition can only be brought with her consent. Third parties could misuse the provision, as in the case of an ex-partner seeking revenge by falsely claiming the victim is in a forced marriage or in cases where a state agency seeks an order for protection on behalf of a victim to recompense costs it incurred for housing the victim. An exception to the third party rule is where the victim is unable to file an application herself, whether because she is falsely imprisoned, in another country or is a vulnerable adult. In these cases, the rules of court should require that there be as much information provided as possible to demonstrate the likely level of the victim’s support for the application. Third party applications on behalf of a child should only be permitted with court permission or appointment of a guardian ad litem, except in the case of local authority chidlren’s services who, as the relevant third party, no longer require leave of the court to issue an application on behalf of someone else. (See: UK Ministry of Justice,  Forced Marriage (Civil Protection) Act 2007: Guidance for local authorities as relevant third party and information relevant to multi-agency partnership working, Forced Marriage (Civil Protection) Act 2007: Guidance for local authorities as relevant third party and information relevant to multi-agency partnership working,October 2009; Forced Marriage (Civil Protection) Act 2007 Relevant Third Party, UK Ministry of Justice, Forced Marriage (Civil Protection) Act 2007 Relevant Third Party , 2008).

Promising practice: In 2007, the United Kingdom passed the Forced Marriage (Civil Protection) Act 2007, Forced Marriage (Civil Protection) Act 2007, which entered into force in 2008. The law enables a number of designated courts in England and Wales to issue Forced Marriage Protection Orders, including emergency (ex parte) protection orders, to protect victims who face the threat of forced marriage or those who are already in a forced marriage. Violation of a protection order is a contempt of court and punishable by up to two years’ imprisonment. Judges may order the following types of relief:

    Prevention of a forced marriage

    Surrender of passports

    Cessation of intimidation and violence

    Disclosure of a person’s whereabouts

    Prevention of taking someone beyond the country’s borders

A policy paper, “One Year On,” was produced to mark the first anniversary of the Act and provided a view of how the Act was being implemented. The report showed that the provisions were being used and that twice as many applications had been made in 2009 than anticipated. Also, in November 2009, the first conviction for violation of an order for protection against forced marriage was handed down. The perpetrator was sentenced to 200 hours of community service, however, rather than imprisonment. Violations of orders for protection should be criminalized and punished with a prison sentence. (See: James Tozer, Spared Jail, The Forced Marriage Case Father Who Told Wife: “I’ll Cut out Your Tongue, MailOnline, Nov. 19, 2009)

Promising Practice: Habeas corpus petitions have been sought in forced marriage cases in Bangladesh and Pakistan. Petitioners may bring an application under Article 102(2)(b) of the Bangladesh Constitution governing the powers of the High Court. “[I]f satisfied that no other equally efficacious remedy is provided by law…” the High Court may “on the application of any person, make an order- (i) directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (ii) requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office.” In this case, a third party or organization may file a habeas petition before the court regarding the alleged detention. In three cases, brought on behalf of British nationals forced to marry in Bangladesh, the court ruled that the women be released. (See Hossain and Turner, Abduction for Forced Marriage: Rights and Remedies in Bangladesh and Pakistan) These habeas petitions address women and girls in unlawful custody, such as a forced marriage that involves false imprisonment, but cannot be used to determine the validity of marriages. Also, a party may bring a habeas petition under Article 491 of the Code of Criminal Procedure (1898) regarding custody. 

Premarital, post-nuptial and other forms of marriage contract

Laws should specify that in systems under which contractual agreements in relation to the distribution of marital property are allowed, women are not left with less protection than they would have under the standard or default marriage provisions, owing to grave inequality in bargaining power.

Laws that provide for the possibility of making private contractual arrangements with respect to the distribution of marital and other property following the dissolution of marriage should include measures to guarantee non-discrimination, respect public order, and prevent abuse of unequal bargaining power and protect each spouse from abuse of power in making such contracts. These protective measures may include requiring that such agreements be written or subject to some other formal requirements and providing for retroactive invalidation or for financial or other remedies if the contract is found to be abusive. CEDAW, Gen. Rec. No. 29.

Inheritance laws

Women and girls in forced marriages should not face discrimination in inheritance upon the death of their spouse, despite the potential invalidity of their marriage.

Equal rights in inheritance

    Legislation should prohibit discrimination against women and girls in inheritance and explicitly allow females to inherit property and land on an equal basis with males. Laws governing lines of succession should ensure equality of rank between mothers and fathers, between brothers and sisters, between daughters and sons, and between spouses. Legislation should state that civil laws shall have supremacy over customary laws and practices that discriminate against women and girls.

    Legislation should state that, upon remarrying, a surviving spouse retains the full rights in any property she inherited from the deceased’s estate. Drafters should repeal any laws that terminate interests upon remarriage for the widow, but not the widower. (See: Canadian HIV/AIDS Legal Network, Respect, Protect and Fulfill: Legislation for Women’s Rights in the Context of HIV/AIDS, Vol. Two: Family and Property Issues, 2009, § 5).

Secular legislation

    Drafters should enact superseding civil laws to address provisions that discriminate against women and girls in religious laws. For example, Tunisia enacted legal reforms that run contrary to Sharia law in cases where the deceased leaves no sons. Rather than distribute the estate to the paternal family, the Personal Status Code designates the paternal daughters and granddaughters ahead of the deceased’s brothers and paternal uncles in succession rank to inherit the father’s total estate before eligible heirs. In this case, the line of succession ranks the surviving spouse first, then daughters, then granddaughters. Also, the estate of a daughter who dies before her father goes to her children, rather than her father. (See: Anna Knox, et al., Connecting Rights to Reality: A Progressive Framework of Core Legal Protections for Women’s Property Rights, International Center for Research on Women; Centre on Housing Rights and Evictions, In Search of Equality: A Survey of Law and Practice Related to Women’s Inheritance rights in the Middle East and North Africa (MENA) Region, In Search of Equality: A Survey of Law and Practice Related to Women’s Inheritance rights in the Middle East and North Africa (MENA) Region,2006; OECD Development Centre, Gender Equality and Social Institutions in Tunisia).  

Equal shares between wife and husband in marriage 

    Legislation should ensure that wives and husbands are entitled to inherit equal shares of marital property.

For example, Malawi’s law specifies that upon the death of the spouse, the surviving spouse (or spouses in the case of a polygamous marriage) and children inherit equal shares of the property, subject to protection for the property in the marital home. Art. 16.

Equal right to inherit all types of property

    Legislation should ensure that wives and husbands are entitled to inherit equal kinds of property. For example, a legal system that states a husband may inherit the entirety of his wife’s estate, but she may only inherit moveable chattel and the cash value of buildings and trees on her husband’s estate constitutes discrimination against women and should be amended. Such laws discriminate against women in the short- and long-term: land and real property tends to increase in value, while moveable goods have a tendency to depreciate over time. (See: Centre on Housing Rights and Evictions, In Search of Equality: A Survey of Law and Practice Related to Women’s Inheritance rights in the Middle East and North Africa (MENA) Region, In Search of Equality: A Survey of Law and Practice Related to Women’s Inheritance rights in the Middle East and North Africa (MENA) Region, 2006) 

Protecting women and girls’ rights in testate succession

    Legislation should guarantee to both women and men, irrespective of marital status, the capacity to make a will. Drafters should develop guidelines on the forms and procedures of wills for establishing validity. Legislation should state that a benefactor may bestow by will any property to which he or she was entitled to at the time of death by law. Legislation should prohibit a married person from bequeathing the marital home to a person other than the spouse in the will if he or she is survived by the spouse.

    Legislation should mandate that every will should provide maintenance for dependents, which includes surviving spouses. The CEDAW Committee Gen. Rec. 29 specifies that disinheritance of a surviving spouse should be clearly prohibited. 

Protecting women and girls’ rights in intestacy

Inheritance laws should ensure equality between males and females’ right to inheritance in cases of intestacy.

    Laws governing intestate succession should automatically provide spouses a share of the estate, including a life interest and right to reside in the marital home. Some countries provide a succession order in intestate cases, placing widows as the first in line for succession. Legislation should provide widows with the full right to their own property. The Canadian HIV/AIDS Legal Network recommends two devolution options for surviving spouses in intestacy: 1) Granting the spouse a set preferential share, and 2) devolve the entire estate, if smaller than a certain value, upon (in order of succession) the surviving spouse and children, the deceased’s parents, and the next category of succession.

    Legislation should mandate that customary systems grant women equal inheritance rights with men and should state that conflicts between civil and customary or religious laws are to be resolved in a manner that promotes gender equality. Drafters must provide for public awareness and outreach about these laws to communities and religious and traditional leaders to facilitate implementation.

See the Maltreatment of Widows section of this module for more information on inheritance laws.