Forced and child marriage

Child marriage, or early marriage, is any marriage where at least one of the parties is under 18 years of age. 

Forced marriages are marriages in which one and/or both parties have not personally expressed their full and free consent to the union. 

Organisations such as the United Nations Office of the High Commissioner for Human Rights have stated that a child marriage is considered to be a form of forced marriage, given that one and/or both parties have not expressed full, free and informed consent and that this kind of marriage “threatens the lives and futures of girls and women around the world, robbing them of their agency to make decisions about their lives, disrupting their education, making them more vulnerable to violence, discrimination and abuse, and preventing their full participation in economic, political and social spheres.”

Where this guide uses the term “forced marriage”, this is intended to include all forms of child, early and forced marriage. This guide will introduce you to general legal steps that can be taken when facing force marriage or helping someone that is. 

Important: Forced marriage is a complex and extremely difficult for the girl or woman involved as it often involves her close relatives or community. It may also be that the girl or woman is under serious danger. Also, many women and girls in these situations may not have the opportunity to seek help or access justice.  It may also be economically difficult and emotionally challenging.

 It is imperative to get specialised advice from a lawyer in your country and organisations that can provide support beyond legal advice focusing on the safety of the girl or woman involved and psychosocial support from people that you trust. Women’s Rights organisation could help.

Many countries around the world have constitutional protections that require free and informed consent to be given by both parties to a marriage.  Many countries also have laws that set a minimum age of marriage, usually at age 18 – although in some countries it is lower.  

In Uganda, the Constitution in article 31 provides that the minimum age of marriage is 18, and that marriage should only be entered into by freely consenting parties. 

The constitution of Senegal establishes in its article 18 that forced marriage is a violation of individual liberty. It is forbidden and punished within the conditions established by the law.

In 2014, Kenya outlawed forced and underage marriage in section 11 of the Kenya Marriage Act and in 2015 Malawi raised the minimum marriage age to 18 in section 14 of the Marriage, Divorce and Family Relations Bill. However, such laws may not necessarily be respected and enforced in practice, even where they do exist. 

If marriage has not happened yet: How to stop it from happening?

If the marriage has not yet taken place, the priority is to find help and safety and protection to stop it from taking place. 

Going to the Police to start a criminal investigation against attempted forced or child marriage.

In some countries, forced or child marriage is criminalised by law. 

There may be provisions in the Criminal or Penal Code. Alternatively, there may be specific separate legislation relating to forced marriage. 

Examples of criminal liability for facilitating forced marriage: criminal sanctions

India, theProhibition of Child Marriage Act,2006 Section 9 imposes a sanction for anyone who is a male above eighteen years of age who celebrates a child marriage. Punishment may extend to two years or with fine or both.  

Section 11 also allows sanctions against parents or guardians that promote or permit the marriage, including any member of an organisation. Punishment may extend to two years and shall also be liable to fine. No woman is punishable with imprisonment and it is presumed that where a minor child has contracted a marriage, the person having charge of such minor child has negligently failed to prevent the marriage.

In Cameroon a new penal code criminalises forced marriage in Section 356. Whoever compels anyone to forcibly marry can be punished with 5-10 years in prison, as well as a fine. If the victim is under the age of 18, the punishment may not be less than two years imprisonment, whatever the mitigating circumstances and parents and guardians may be disqualified as parent or guardian by the court.

There are other criminal offences that those that forced you to marry committed whilst in the process of forcing you which constitute acts of violence against women. These may include assault, kidnap, abduction, harassment, false imprisonment, domestic violence, and any relevant sexual offences. 

For more information on these offences, please see our Violence Against Women section.

The Police are generally the primary authority responsible for guaranteeing our security and investigating crimes. The police may be able to arrest and charge the perpetrators for attempting to force a person into marriage, including the potential groom and/or others who facilitated the marriage.

Criminal cases are investigations and prosecutions, usually undertaken by police or public prosecutors, to find out if a crime has been committed. If, after investigation, there is evidence a crime has been committed, this could lead to a criminal prosecution. 

Claim: Criminal Prosecution

By whom: the person that was forced and the estate which takes over the prosecution

Against: the husband, relatives or others who committed the actions

Where: Criminal Court 

Asking for: The Court to acknowledge a crime was committed and sanction those responsible with a fine or a prison sentence.

Step 1: Look at where this is regulated in our country. It will most likely be in a Penal Code or Forced Marriage law. 

Step 2: Think if you are within the time limit. Some countries allow you a specific time limit of 10 years, or others of less time to prosecute a crime. Other countries have no time limit.

Step 3: Think about whether you have evidence. In criminal cases, the person alleging a crime has been committed has the burden of proof.  The person accused will be innocent until proven guilty. Examples include evidence to show where you were being held, if you were uncommunicated, communications with friends or relatives, witnesses that may come forward, violence or threats that were inflicted. If you do decide to go ahead a police investigation may help with obtaining key evidence.

Step 4: Seek legal advice and speak to a lawyer to see if there are good prospects for this in your country, if the police and authorities take it seriously and what are the advantages and the risks. You may also wish to get support from a Women’s Rights Organisation that can advise you on your individual circumstances which led to the forced marriage and how to protect yourself.

IMPORTANT: In the case of Forced Marriage, check if your country considers it a public prosecution case. The case is usually investigated by the police, who will also gather evidence. The case brought by a representative of the State, such as a public prosecutor or state attorney. This means that if you report this to the police and their investigations result in them thinking the crime was committed, they will start criminal proceedings against those that committed the crime regardless of whether you want them to go ahead or not.

If it is a private prosecution case, you will have to take the lead and hire a lawyer to pursue the investigation. You can also drop the case if you do not want to go ahead

Think if you would like to go ahead and report the case to the police. 

The process varies in each country but usually involves:

1. Going to the police or directly to the public prosecutor who will investigate the facts.
2. If convinced, the police will arrest, and the public prosecutor will charge the person involved, accusing them of committing a crime. If they are not convinced, they will not arrest or charge, or if they have, they will release the person without charge.
3. The perpetrator will either be held in detention waiting for their trial or be released on bail. There will be a hearing to decide this and a period of time given to continue preparing for trial.
4. The trial will go ahead, and both the prosecution and defence will provide an outline of their version of the facts, provide evidence, and question each other’s evidence. Your and
5. other witness statements will be relevant for this. The evidence must show to a high level of certainty, often called “beyond reasonable doubt” that specific crimes were committed and were committed by the people accused.
6. After the trial, the judge or the jury will reach a decision, which will involve either acquittal or conviction of the accused. Some countries have a jury, but other countries do not.
7. If the person is convicted, then there is a sentencing which can include a fine, a prison sentence, or other sanctions. In some countries, it can also award compensation to victims of the crime. However, as this is generally not the case, civil cases are better suited if compensation is the primary purpose of litigation. If the person is acquitted, they can be released.
8. There is the option to appeal.

This process may be long and is focused on sanctioning those that were involved in forcing you to marry. For more information about criminal proceedings, please see our Going to Court Guide.

This is a long process, and you will still need to assure your safety and it may be that you prefer to focus on preventing the forced marriage only. A Domestic Violence Protection Order may help protect you. You can also go ahead with both options.

Domestic Violence Protection Orders

Some countries have a law that protects women from domestic violence allows you to go to the police or directly to a court and ask for a protection order. This option can help as a way to protect your safety and remove you from the physical control and coercion that can force the marriage to take place. 

Some countries, like Kenya consider forced marriage within the definition of domestic violence.

Kenya’s Protection against Domestic Violence Act incudes force marriage within the definition of violence in section 3 and allows victims to go to the police or to a magistrate court to seek a protection order. 

 India:Protection of Women from Domestic Violence Act, 2005

This act protects women and children subject to abuse from a partner and from other relatives. Abuse can be physical, sexual, emotional, or economic and includes the threat of forced marriage. Section 18 refers to the right to go to court and ask for a Protection Order which includes orders to stop him from getting near you, communicate with you, communicate with your relatives, etc. Section 19 of the Act allows you to ask for a residence order to expel the abuser from your common household. 

The process varies in each country, but generally:

The Claim: Domestic Violence Protection Order.

By whom: the person affected or their representatives if they are children or incapacitated. 

Against: the husband, relatives or others who committed the actions.

Where: before a family court or a civil court.

Asking for: The Court to order the aggressor to stay away from you, to restrict his contact with you, change his residence and other options.

Seeking legal advice from a lawyer in your country or a Women’s Rights organisation will assist you with how viable this is in your country.  

It will generally be:

1. Quick and not expensive, often allowing for emergency orders outside of court hours.
2. Require you to go to the police or directly to a Magistrates, Civil or Family Court.
3. Ask for a Domestic Violence protection order by presenting a written statement or completing a form. You will be asked to provide evidence such as evidence of physical harm, threats, and other forms of violence. The level of certainty for these cases is lower than in criminal cases, you need to prove that there is more than a 50% chance what you are saying happened, also called the balance of probabilities.
4. The court will identify if you or your children are at risk of domestic violence and if the order would prevent harm to you or your children. If that is the case, it will issue the order.
5. Generally the abuser is only contacted after you present your case.
6. There is the option for the other party to appeal.
7. The generally last for weeks or months and can be renovated. If the perpetrator does not follow the order, he can be arrested.

The focus of this order is to protect the victim rather than sanction the perpetrator. If you choose to change your mind the process will stop. You can also go ahead with this and other options in this section.

For more information on how to protect yourself from an aggressor please see our Violence Against Women Guide.

If your liberty is being restricted as a way of forcing you to get married: Habeas Corpus

If you are being held in a house, or area against your will as a way to force you to get married, you or any individual or organisation that is concerned about your liberty can go to a High Court in your country and ask them to check that you are not being deprived wrongfully of your liberty.

 If the court finds that you are being deprived of your liberty, it can order that you are immediately released.

Claim: Habeas Corpus

By whom: the forced bride or any concerned individual or organisation in the name of the bride

Against: the husband, relatives holding the wife against her will, the police who has ignored her detention.

Where: High Court usually, but it depends on your country

Asking for: the forced bride be brought before a judge so that the judge can decide if she has been wrongfully held against her will and order her to be set free. 

Step 1: Think about who can make the request to the court. It may be that the affected forced bride is uncommunicated, and the petition to the court is to be by an organisation or concerned friends. 

Step 2. Look at where Habeas Corpus is regulated in your country. It is often in the Constitution. 

Step 3: You will need to start thinking about gathering evidence such as where the forced bride is being held, who is holding her, whether there are any messages or letters she may have sent asking for help, whether she is uncommunicated, etc.   

Step 4: Although in some countries you do not need a lawyer to present an habeas corpus, seek legal advice or help from a Women’s Rights organisation to check this and the viability of your case and to take your case to court. 

Step 5: Make the petition before a court. Steps vary in each country but will often involve: 

1. Going to the High Court.
2. Present a petition for a writ of habeas corpus. Together with the petition, you should present a description of the circumstances around the restraint. Provide as much information as possible about who the person restrained is, where she is, and who is holding her against her will and under what conditions.
3. If the judge is convinced, he or she will ask for the person to be brought to the court to oversee whether she is being held against her will. If she is, then the judge can order for her release.
4. You can also appeal. It should be a quick process, due to its urgency.

This route is an option for a case in which the focus is on solving the urgent problem of being held against your will. Cost also should be reduced, although this also depends on the country. Note that it does not address the validity of the marriage. Having freedom will help you deal with the next steps such as seeking support and help and thinking about future steps which will be analysed below. 

Example:  In Kalyani Choudhury v State of UP 1978 CriLJ 1003. 

Kalyani Chowdhury was an adult woman who got married. Her family opposed the marriage and forced her to be detained in a protective home for women. She made a petition to the Allahabad High Court describing that she was detained against her will in an illegal manner in a protective home for women. The Court reviewed that detention in protective homes required there to be an offence which the woman committed, which was not the case here. The court decided that the detention was illegal and ordered the liberation of Kalyani Chowdhury.  

An injunction

In some countries, Family Courts can issue an injunction to stop marriage arrangements. The injunction can also require the person named in the order to do certain things, for example, handover passports to the court to avoid them from fleeing or ensure a young person attends school. 

An injunction is a legal order from the court ordering people to do or refrain from doing something. In this context it is an order to preventing the marriage from happening. The specific remedies available and the processes for obtaining them will vary between countries.

Seeking an injunction will normally following the steps of a civil claim.

Civil claims solve disputes between private parties, such as two individuals, a couple, two companies or an individual and a company. The purpose of civil claims is for a judge to give you relief or a remedy, that is, a solution to your individual problem with the other party. This can be:

-compensation or money in the case that you suffered harm.

-it can also be an order from the judge to do or not do something, like in this case.

-it can also be an order from the judge allowing you to benefit from certain rights. For example, to divide a property in your favour, administer an estate or decide that you are entitled to certain rights. 

Claim: Civil claim in a civil court

By whom: the forced bride 

Against: the groom and also other people involved in the forced marriage

Asking for: an order to preventing the marriage from happening.

Step 1: Start gathering evidence that your family or others are planning on forcing you to get married. This includes for example, evidence of threats, an appointment for the marriage ceremony, witnesses, etc.  

Step 2: Look at where the required authorisation is regulated – for example, in a civil code, or specific legislation related to marriage.

In India The Child Marriage Restraint Act (1929) Section 12(1) states that a person can:

1. go to court and ask for an injunction
2. against the person that is trying to marry a child, the person officiating the marriage or the parents of the child.
3. the Court may issue an injunction if satisfied from information or proof that a child marriage has been arranged or is about to take place.
4. the injunction can involve restraining the actions of the person that is trying to marry a child, the person officiating the marriage or the parents of the child.

Step 3: Seek legal advice on the viability of your case and to take your case to court and seek support from a Women’s Rights organisation that you trust about the risks involved.  

Proceedings will often involve: 

1. Going to a civil court and complete official paperwork and court filings with your arguments and petition asking for an order from the court asking the parties to refrain from celebrating the marriage and other actions which are coercing you into marriage.
2. Provide evidence in showing the intention to force a marriage or arrange a child marriage.
3. An opportunity for the other party to object and offer evidence against your claim.
4. The judge making a court order replacing the authority of the husband.
5. Possibility of an appeal

This route is a good option for a case in which the focus is on solving the individual problem of avoiding a forced marriage, but note that it does not address other aspects around a forced marriage such as violence, threats, being deprived of a place to live, etc. You may want to pursue this option together with options mentioned above such as seeking criminal sanctions for those involved, or a domestic violence protection order to protect you from reprisals. 

The main obstacles to seeking such remedies include risk of community pressure and threats, so it is very important you seek support form organisations that can help you such as women’s refuges. 

Seek other forms of help to prevent the marriage from taking place

There are several practical sources of assistance which may provide more immediate protection than legal action. The types of assistance available will vary depending on location and the cultural or social contexts. It should be noted, however, that if forced marriages are common in a particular community, it can be exceedingly difficult to find practical assistance even from official sources.

Examples of possible sources of help include:

• Helplines providing support for abuse against women – this link provides the numbers of the relevant hotlines in every country
• NGOs or other organisations which provide support. Even if a particular NGO is not able to assist, it may be able to assist with finding other sources who can assist. This link provides information on organisations providing support for victims of domestic violence in every country.
• Government support such as social services and women’s refuges/shelter homes. 
• A health centre such as a clinic or hospital.

Beyond assistance with preventing or escaping the forced marriage itself, women and girls will likely also need significant economic support to move on with their lives.

What can you do it the forced marriage has already taken place?

If your liberty is being restricted after marriage or you are subject to domestic violence

If you were forced to get married and you are also being held in a house, or area against your will you or any individual or organisation that is concerned about your liberty can go to a High Court in your country and ask them to check that you are not being deprived wrongfully of your liberty. 

Think about a Criminal sanctions, Habeas Corpus petition or a Domestic Violence Protection Orders mentioned above. They will not have the effect of annulling the marriage, but will serve as options to keep you safe and allow you to move onto other legal options to revert a forced marriage.

How to revert a forced marriage?

Annulment:

In many countries, a marriage may be annulled if it has been entered into without the free and full consent of both parties. Annulment means that the marriage is treated as void, as if it never happened in the first place.

For example, in India, the Prohibition of Child Marriage Act 2006, Section 3 states that a child marriage is voidable by filing at the district court and asking for the marriage to be declared void by the person who was a child once the marriage took place. 

Similarly, Section 25 of the Special Marriage Act, 1954 states that a marriage can be annulled if the consent of either party to the marriage was obtained by coercion or fraud. 

The annulment will normally involve following a civil claim before a civil or family court following the steps of a civil claim.

Civil claims solve disputes between private parties, in this case the married couple. The purpose of civil claims is for a judge to give you relief or a remedy, that is, a solution to your individual problem with the other party, in this case, an annulment.

Claim: Civil claim in a civil court

By whom: the forced bride 

Against: the groom

Asking for: an annulment 

Step 1: Start gathering evidence that you were forced to get married. This includes for example, evidence of threats, an appointment for the marriage ceremony, witnesses, etc.  

Step 2: Look at where the annulment is regulated. It could be special law on marriage in your country, a family code, or a civil code.

Step 3: Seek legal advice on the viability of your case. It may be that there are other reasons or grounds apart from force under which an annulment is given which is easier to prove, like for example, lack of witnesses. Also, check you are within the time limit to seek an annulment. Some countries where customary marriage is common may have their own rules on how to annul forced marriage and child marriage. Countries with different religious marriages will also have different rules. Seek support from a Women’s Rights organisation that you trust about the risks involved. 

Proceedings will often involve: 

1. Going to a civil court and complete official paperwork and court filings with your arguments and petition asking for an annulment based on coercion.
2. Provide evidence in showing the intention to force a marriage or arrange a child marriage. evidence of the coercion, through witnesses present at the celebration of the marriage, threats, or other kind of evidence.
3. An opportunity for the other party to object and offer evidence against your claim.
4. The judge making a court order replacing the authority of the husband.
5. Possibility of an appeal

Challenging forced marriage in court – Pakistan. Humaira Mehmood v Sho North Cantt Lahore & Others, 1999, High Court of Pakistan. Administrative/Judicial Review claim.

In May 1997, Humaira Mehmood secretly married. When her parents discovered her marriage, she was beaten and imprisoned in hospital for two months, then forcibly married and the marriage was backdated to appear as if it were the first. In November 1998, Humaira and her original husband fled. The husband from the second forced marriage alleged to the police that his wife had been abducted. The Punjab police arrested, detained, and beat Humaira, her consensual husband and his family.  Humaira brought a petition to the Lahore High Court to judicially review the police decision and refute abduction claims and to quash the charges against her. 

The court decided in her favour of Mehmood, as the Constitution grants the right to be treated strictly in accordance with the law, which Mehmood was not. The court also referred to international human rights law, as Pakistan is a party to CEDAW, which requires that states take appropriate measures to eliminate discrimination against women relating to marriage. This includes the right to choose a spouse and to enter marriage only with full consent. These rights are also found in the Cairo Declaration on Human Rights in Islam, which Pakistan is also a signatory of. Finally, the court ruled that Humaira had not given full consent for the second marriage, therefore it was illegal and void, pending further investigation by a family court. Her first marriage was decided to be valid, and all claims against Humaira were quashed.

This route is a good option for a case in which the focus is on solving the individual problem of avoiding a forced marriage, but note that it does not address other aspects around a forced marriage such as violence, threats, being deprived of a place to live, etc. You may want to pursue this option together with options mentioned above such as seeking criminal sanctions for those involved, or a domestic violence protection order to protect you from reprisals.

Separation and Divorce:

Another option is to not get an annulment and opt for separation and divorce. This may be because certain countries impose a time limit on getting an annulment, certain requirements for annulment are not met or you do not want to get an annulment. 

 A legal separation will allow you to live apart from your husband. It will also count towards the time that some countries require for the relationship to have broken down to grant you a divorce. 

Rules vary in each country, but generally you will have to fill in a petition and send it to the court. Other countries may require you to state that you are separated before a notary. The reasons or grounds for separation are often the same grounds or reasons as those needed to get a divorce. 

This may be an option if you do not want to get a divorce, or if in your country you need certain time to have passed before you can get a divorce.

For more information, see our divorce section. 

Criminal sanctions for those that engaged in child marriage and on a forced marriage. 

In many countries, forced or child marriage is criminalised by law. The police may be able to arrest and charge the perpetrators, including the husband and/or others who facilitated the marriage.

For more information see our previous section Going to the Police to start a criminal investigation against attempted forced or child marriage.

There are other criminal offences that those that forced you to marry committed whilst in the process of forcing you which constitute acts of violence against women. These may include assault, kidnap, abduction, harassment, false imprisonment, domestic violence, and any relevant sexual offences. For more information on these offences, please see our Violence Against Women guide. 

This process may take some time and is focused on sanctioning those that were involved in forcing you to marry. For more information about criminal proceedings, please see our Going to Court guide.

It may be that you prefer to focus on reverting the forced marriage only, or on getting relevant compensation rather than sanctions for those involved. In this case, the other options in this guide may be of more use to you. You can also opt for more than one option. 

Getting compensation for the facts surrounding a forced marriage by using Tort Law and presenting a Civil Claim. 

In cases of forced marriage where severe threats or violence or deprivation of your freedom are used, there is the option of suing by making a civil claim against those that carried out those actions either your husband or relative. The relevant torts for forced marriage are False Imprisonment and Assault.

Civil claims solve disputes between private parties, such as two individuals, a couple, two companies or an individual and a company. The purpose of civil claims is for a judge to give you relief or a remedy, that is, a solution to your individual problem with the other party. This can be:

–compensation or money in the case that you suffered harm, as is in this case.

-it can also be an order from the judge to do or not do something

-it can also be an order from the judge allowing you to benefit from certain rights. For example, to divide a property in your favour, administer an estate or decide that you are entitled to certain rights. 

False Imprisonment:

A type of tort is false imprisonment. In the context of forced marriage this can happen if a person intends to confine your boundaries and the actions of your husband or others aiding to force you to get married result in your confinement, and you are aware of this or harmed by it. 

You should show that: 

(i) You were deprived of your liberty 

As the claimant, you will need to prove that you were imprisoned. This means that you were completely deprived of your liberty. There is no minimum period for detention under this law. 

(ii) There was no lawful authority to justify your detention

This will be easy as there is no public authority involved in imprisonment for forced marriage. Then, those that forced you must then prove that there was justification for your detention. 

Assault:

An assault occurs when the defendant acts intending to cause a harmful or offensive contact with the bride, or act in a way that the bride will think that a harmful or offensive contact will happen. This includes for example the use of physical violence, but can also be severe threats which with other acts make you think that you were under threat of imminent harm. 

Requirements may vary in each country, but in general someone:

 (i) Uses force against you: In many systems, there is no minimum threshold of force that has to be used, but this will be relevant to the level of compensation you receive.

(ii) The use of force was intentional: Your husband, relatives or officiating officer must have intended to use force. This is where you can prove that force was used to get you to consent to the marriage.

(iii) The use of force must be unlawful: This is where you prove that they had no authority to assault you.  

For both of these torts, in theory you do not need to prove that there was harm, but you need to prove that the false imprisonment or threats took place and often using evidence to prove damage will help to do this. This evidence will also help to determine how much you should be compensated for.  In this context, the damage or harm can be either physical or mental. 

Claim: Tort claim

By whom: the wife 

Against: the husband, relatives who held her against her will, the police who has ignored her detention if she asked for help.

Where: Civil Court 

Asking for: The Court to acknowledge there was damage and loss due to False imprisonment or to Assault.

Step 1: Look at where this is regulated in our country. It will most likely be in a civil code or tort law. Speak to a lawyer to see if there are good prospects and if the expense of the trial is justified. 

Step 2: If you decide to go ahead, you will need to start thinking about gathering evidence such as where you were being held, if you were uncommunicated, communications with friends or relatives, witnesses that may come forward, how that was against your will, violence or threats that were inflicted, and how this generated loss for you.

In civil law actions, it is the claimant who has the “burden of proof”. This means the person bringing a civil claim needs to prove their case. In many countries, you have to prove your case to a standard of proof known as the balance of probabilities (i.e. you need to prove that there is more than a 50% chance what you are saying happened).

Step 3: Make the petition before a court. Steps vary in each country but will often involve:

1. Going to a civil court.
2. You submit your claim within the required time period with an account of the facts and circumstances, describing the actions taken by your husband and/or relatives and of how those actions can be said to be assault or false imprisonment. Provide an outline of the evidence that you have which proves the facts. State what is it that you want (for example an amount of compensation)
3. These documents will be shared with the person you are suing, and they will have a chance to present a defence.
4. Your complaint must be supported by evidence which can include photographs, police complaints, marriage certificate, letters, witnesses etc. The defence will also provide evidence and you can question their evidence. They can also question yours.
5. In some countries there is a trial with a court hearing and in others the judge will decide without seeing the parties.
6. Once the main trial is over, the judge will consider each of the parties’ arguments and form a decision.
7. If the claim is successful, the judge will generally award a “remedy”. “Damages” or compensation are usually awarded as a remedy.

This is not a common option, mainly because women are in a situation of vulnerability and opt for urgent solutions. This is a long process and it expensive. However, this may be an option to be taken on top of the previous options for getting economic redress for what happened to you. It will not affect the validity of the marriage, or end with those involved being given a prison sentence.  But it could provide you with necessary economic compensation. 

It is not a quick process and there are costs involved which you should discuss with a lawyer in your country. For more information about civil proceedings, please see our Going to Court guide. 

Constitutional challenges to child and forced marriage.

Rights found in your constitution or other national legislation may be most useful to challenge laws or practices permitting forced and child marriage more broadly. The laws of a country relating to forced marriage may themselves be discriminatory and fail to accord equal status to men and women within a marriage.

Some countries have constitutional provisions specifically referring to the need of free consent in marriage. For example, article 31.3 of the Constitution of Uganda states that “(3) Marriage shall be entered into with the free consent of the man and woman intending to marry”. Also, most constitutions include a general provision of equality before the law, non-discrimination, the best interests of the child, right to life, bodily integrity, right to liberty and right to dignity. 

Claim: Constitutional claim in a constitutional court, a High court, or some countries allow you to go to a lower civil court.

By whom: the wife (can be supported by civil society organisations). Some countries allow civil societies to represent the public interest and take a case alone. 

Against: an act by the husband, by a public authority or a private authority that affects the wife’s fundamental rights. In some countries like in Peru (article 200 of the Constitution), laws can also be changed through “unconstitutionality actions”. 

Asking for: declaring the act or law unconstitutional and have it not applied in your case and in some countries it does not apply to the cases of other women.

How? The process for such a challenge varies between countries – it may be, among other things, called a “constitutional petition”, or “amparo proceedings”. It will require you to:

-Finding a person who has had their fundamental rights affected: This would be the wife which is affected by the law or practice of forced marriage. 

-Establishing which of your fundamental rights were affected: the right to equality and/or non-discrimination contained in most constitutions or other national laws can be effective but it could also be that other rights protected by the constitution are affected, such as the right to life, right to liberty, right to dignity, or others.  

-Get legal advice on the likelihood of an amparo proceeding for your specific case.

-Initiate legal proceedings showing which rights were affected, how those rights were affected and why it is unconstitutional. You will need to provide evidence. 

-The other party, the public authority or the Estate will also get a change to argue and give evidence against your claim. 

If successful, the constitutional courts may provide for an act, law, or policy to be declared unconstitutional. This often means that the act, law, policy cannot be implemented in an individual case (concrete application), but it may in some countries also have the benefit of not being applicable in ANY case (general application). 

A constitutional challenge is often a good route to challenge a law or policy which itself affects more than one individual. 

A case of general application. Tanzania: a case of general application Attorney General vs. Rebeca Z. Gyumi of 2017.  

In this case, the founder and director of Children’s Rights Organization ‘Msichana Initiative’, Ms Rebecca Gyumi, questioned the fact that marital age between boys and girls was different. In various laws, girls could marry at a younger age than boys. Section 13 (1)(2) of the Law Marriage Act stated that marriage is legal for females aged fourteen, males 18. Section 17 allowed a child of 15 to marry with the consent of their parents/legal guardian or the court. She made a constitutional petition to the High Court asking for these two sections to be declared void and null because they were unconstitutional. 

Following the steps on the checklist above, Ms. Gyumi and her lawyers:

1. Found a relevant enforceable law which included Article 12, 13 and 18 of the Constitution of the United Republic of Tanzania 1977 which referred to the right of equality, right of equality before the law and freedom of expression and argued that this discrimination negatively affected girls, their development and education. 
2. found that they had the right ask the high court to decide this constitutional issue under Section 30.3 of the Constitution and that the High Court could  declare laws void or ask the government to rectify them if contrary to fundamental rights under section 30.5 of the Constitution.
3. the public body or law responsible was the Section 13 (1)(2) of the Law Marriage Act stated that marriage is legal for females aged fourteen, males 18. Section 17 allows a child of 15 to marry with the consent of their parents/legal guardian or the court. 
4. They gathered evidence and took the procedural steps to make the complaint, which required going to the High Court. 
5. The remedy was that the High Court held that Sections 13 and 17 of the Law of Marriage Act were unconstitutional as they  violated Article 12, 13 and 18 of the Constitution of the United Republic of Tanzania 1977 which referred to the right of equality, right of equality before the law and freedom of expression and therefore had to be rectified within one year. The court ordered that this rectification had to be in accordance with international human rights legislation, including the Maputo Protocol and Article 21 of the African Charter on the Rights and Welfare of the Child. 

For more information on public law and constitutional actions, please see Going to Court.

A good resource that goes into more detail on how to prepare a case on Child Marriage cases in Africa  can be found here.

International/ regional challenges

International human rights treaties and conventions also protect the right to free consent when getting married.

What are my rights in international law

Article 16.2 of the Universal Declaration of Human Rights, Article 10 of the International Covenant on Economic, Social and Cultural Rights, the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages in its Article 1 and Article 23.3 of the International Covenant on Civil and Political Rights all state that marriage must be entered into with the free consent of the intending spouses.

Article 16.1.b of CEDAW provides that spouses have the same right freely to choose a spouse and to enter into marriage only with their free and full consent and in its Article 16(2) it provides that child marriage has no legal effect, and states shall take all necessary action to specify a minimum age for marriage. 

Article 19 of the Convention on the Rights of the Child (CRC) protects children from all forms of physical or mental violence, including sexual abuse. Its Article 24 protects the right to health and its Article 28 protects the right to equal education. All of these rights are affected by child marriage.

In Africa, the Protocol to the African Charter on Human and People’s Rights: Rights on the Rights of Women in Africa, Article 6 and Article 6 of the Maputo Protocol specify that marriage requires free and full consent from both parties, and the minimum age of marriage for women shall be 18 years. Article 21(2) of the African Charter on the Rights and Welfare of the Child also specifies that the minimum age of marriage shall be 18 years.  

Asia does not have a regional convention, but the ASEAN declaration establishes in its paragraph 19 that Men and women of full age have the right to marry on the basis of their free and full consent.

Article 17(3) of the American Convention on Human Rights specifies that marriage shall not be entered into without the free and full consent of the intending spouses.

All of these provisions can be used when taking a case before an international body.

TIP 1: You can find a detailed table of international law on marriage here.

TIP 2: You can click on this link and look for your country on the list. If your country is party to a treaty it must comply with the rights and obligations included in them. Your country may have applied reservations (limitations to the application of the treaty) when they became party to a treaty which you can also read.  

TIP 3: You can search for cases in your country or in your regional system and see which rights have been most effective to uphold equal marriage rights in the past.

 

How to use these international law provisions in practice?

These provisions are especially useful for organisations and the community to hold their governments progressively to account particularly towards systemic change.  

For more information on how to take your case to an international or regional body, please see the section on this guide “International Mechanisms to protect your rights”.