HUMAN RIGHTS, ‘ARRANGED’ MARRIAGES AND NULLITY LAW: SHOULD CULTURE OVERRIDE OR INFORM FRAUD AND DURESS?

Jocelynne Scutt

Abstract


Nullity law in Australia and Fiji provides that marriages can be void on various grounds, including duress and fraud. Despite some differences, United Kingdom (UK) law says marriages can be void or voidable on similar grounds. Courts in each jurisdiction have granted annulment in cases of forced marriage where duress “threatens life and limb”. Courts now say lesser force or threats, including pressure to comply with religious or traditional duty, can nullify marriage. Yet courts continue to require high level force such as passport confiscation, physical abuse, threats of eviction from the family home, and economic harm. This, as with allegations of fraud which receive short shrift, results from returning to common law authorities decided before migration resulted in significant demographic changes, particularly regarding culture and religion. UK authority draws a distinction between “forced” and “arranged” marriages, saying nullity is granted rightly in cases of the former, yet because “culture” “sanctifies” the latter, refusing nullity is right. Yet is this distinction valid? Should such marriages be recognised by Australian, Fijian and UK courts as contracted with full and free consent of the parties? An exploration of contemporary cases against the common law background to fraud and duress as nullity grounds indicates that allowing culture to be the measure denies women’s (and sometimes men’s) entitlement to contract marriage with full and free consent according to international human rights law.


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