Within her family law seat, pupil Ms. STEIN-HEMMINGS has been involved in cases where parties have raised the possibility of marrying whilst under the age of 18. On 27th February 2023, the minimum age for marriage or civil partnership was raised from 16 to 18, outlawing child marriage in England and Wales. Within this article, Georgina STEIN-HEMMINGS examines the need for the new provisions and the changes in the law.
The Previous Law
Under the Age of Marriage Act 1929, the legal age a person could marry was 16, provided there was parental permission or Judicial consent. This was then extended to civil partnerships under the Civil Partnerships Act 2004 and to same-sex marriage under the Marriage (Same Sex Couples) Act 2013.
It became a criminal offence under the Anti-social Behaviour, Crime, and Policing Act 2014 (“the Act 2014”) to force someone to marry in England in Wales. A person commits the offence of forced marriage if, under s.101:
(1) A person commits an offence under the law of England and Wales if he or she—
(a) uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, and
(b) believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent.
(2) In relation to a victim who lacks capacity to consent to marriage, the offence under subsection (1) is capable of being committed by any conduct carried out for the purpose of causing the victim to enter into a marriage (whether or not the conduct amounts to violence, threats or any other form coercion)
(3) A person commits an offence under the law of England and Wales if he or she—
(a) practises any form of deception with the intention of causing another person to leave the United Kingdom, and
(b) intends the other person to be subjected to conduct outside the United Kingdom that is an offence under subsection (1) or would be an offence under that subsection if the victim were in England or Wales.
Previously, forced marriage in the UK extended only to using coercion or if the person lacked capacity under the Mental Capacity Act. This included marriage ceremonies that were not legally binding, such as community or traditional marriage celebrations (s.101.4 of the Act 2014).
As a result, the law was left open to significant abuse, with numerous charities fighting to increase the age of marriage under any circumstances to 18. Barnardo’s claims marriages that take place when one or more of the parties are under 18 are often at risk of sexual and domestic violence, whilst a victim of child marriage, Payzee Mahmod, has spoken out during a TEDx talk “A Survivor’s Plea to End Child Marriage” and on Twitter (@PayzeeMalika) in her campaign to end child marriage. She was awarded a Global Citizen Prize for her tireless work.
Some communities and groups, such as the Roma Support Group, have raised concerns about the legal age for marriage being increased. Despite expressing support for the protection it would provide youths, they queried how it could be applied in practice. This is partly due to the meaning placed on the word “married” in some Roma communities, as it can be used to explain a boyfriend/girlfriend relationship. Yvonne MacNamara, the chief executive of The Traveller Movement, also expressed concern that whilst the age rise was in principle agreed with, it may drive the issues underground and could lead to more European Roma and Traveller children being taken into care.
Despite the concerns raised, The Marriage and Civil Partnership (Minimum Age) Act 2022 was able to pass through Parliament with very limited opposition. Selaine Saxby, MP, expressed her support by highlighting that you cannot vote, make a will, sit on a jury, or even get a tattoo until age 18: it must therefore follow that venturing into marriage is not something that should be taken lightly.
Coercion and Abuse
Coercive behaviour is defined by the Crown Prosecution Service as: an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim. Classified as vulnerable people, children are particularly vulnerable to this type of behaviour. The United Nations Convention on the Rights of Children defined children as: everyone under 18 unless, under the law applicable to the child, majority is attained earlier.
A key concern for numerous charities and victims of child marriage was familial pressure or arrangements to marry under the age of 18, often to significantly older men. In this situation, the law failed to prevent such marriages, as parental consent was given. Whilst this would fall under the scope of coercion and subsequently forced marriage, it would fall to the children or external parties to report this to authorities. Moreover, the substantial age gap and nature of such arrangements could give rise to situations where sexual and domestic abuse were more likely. Payzee Mahmod’s own sister, Banaz, was the victim of an honour killing, having left her arranged child marriage. She was raped and murdered aged 20.
Karma Nirvana, a charity aimed at preventing honour-based abuse, conducted research into the perpetrators of such abuse, noting that 64% of victims were at risk from their fathers, and 29% from their mothers; 34% were also found to be at risk from both parents. These statistics speak for themselves when considering that parental consent was required for marriage under the age of 16.
Numerous MPs have come forward, sharing their own experiences of child marriage, and their concerns allowing child marriage in England and Wales may mean it is deemed acceptable in situations where the child consents following coercion, or the child is simply unable to consent. Virendra Sharma explained how his mother was forced to marry at 16 and was denied an education as a result. He is quoted as saying “Marriage under 18 is child marriage [and is] not something we would condone in any other situation”. Sarah Champion, his colleague, stressed the issue of child marriage was one of child protection, not culture or race.
Impact of the Marriage and Civil Partnership (Minimum Age) Act 2022
It is hoped that by making child marriage illegal in England and Wales, forced marriages that are not reported can be prevented, protecting children from sexual and domestic abuse. Justice Secretary, Dominic Raab, said “Forced child marriage ruins lives. We back this Bill to keep vulnerable young people safe, by raising the legal age of marriage to 18, and closing gaps in the law which leave them at risk”.
From 27th February 2023, any marriage, civil partnership, or non-legally binding ceremony under the age of 18 is illegal, with any adult involved facing 7 years imprisonment. It is, however, not retrospective, meaning marriages that have already occurred will not be nullified.
The Marriage and Civil Partnership (Minimum Age) Act 2022 will ensure that the risk of children being forced to marry, often into abusive relationships for financial gain, is lessened. However, it is still a live issue in many communities, and Yvonne MacNamara’s concerns of such marriages becoming more underground must be kept in mind. Safeguarding concerns and continued reporting are vital to ensure children are protected, with the increased support of the law.
To see the Marriage and Civil Partnership (Minimum Age) Act 2022, please click this link: https://www.legislation.gov.uk/ukpga/2022/28/enacted
For support or charities and groups attempting to prevent child marriage, please click these links:
Georgina Stein-Hemmings will commence her 2nd six on the 3rd April 2023. https://www.kbgchambers.co.uk/team/georgina-stein-hemmings
If you would like more details about booking Georgina for a case please call 01752 221551