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The Australian Federal Police have released a statement urging school communities to learn the signs of forced marriage, so that more are empowered to seek help and report their suspicions.

This is due to how parents, teachers and fellow students have been identified as those who are often the first to notice a change in the behaviour of victims of forced marriage.

Whilst men and boys can be victims of forced marriage, the AFP have noted that most reported victims are young women and girls.

AFP Commander Human Exploitation, Helen Schneider said: “the number one priority of the AFP is to ensure victims are safe and have access to all the support they need, with our teams professionally trained to manage sensitive cases.

“Those closely involved with school-aged children are often best placed to identify the warning signs and indicators of human trafficking.”

Common ‘red flags’ related to forced marriage include a person who may have a family history of elder siblings leaving education early, marrying early or indicating concerns of an early marriage.

They also include those who are highly controlled by family or community members, have their communications monitored, or express concern regarding family holidays or overseas travel.

It will also be common for victims to demonstrate feelings of concern for the ramifications if they do not go ahead with an agreed marriage or engagement which may include physical or psychological violence for not fulfilling family or community expectations.

Forced marriage has been illegal in Australia since 2013, with laws strengthened in 2015 to introduce tougher maximum penalties. It has been labelled an often complex and underreported crime.

However, the AFP has reported a rise in reports of human trafficking (which is classified to include forced marriage and servitude) with 340 reports of offences in the 2022/23 financial year which is an increase from the previous 2021/22 financial year, in which 294 reports were received in total.

The Offence of Forced Marriage in Australia

The offence of ‘forced marriage’ is criminalised under section 270.7B of the Criminal Code 1995 (Cth). It is a Commonwealth offence and is applicable Australia-wide.

A marriage will be considered ‘forced’ where either party to the marriage entered into it without freely and fully consenting due to the use of coercion, threat, or deception or because they were incapable of understanding the nature and effect of the marriage ceremony.

It will also be considered ‘forced’ if either party was under 16 when the marriage was entered.

This is due to how a person under the age of 16 will be presumed to be incapable of understanding the nature and effect of a marriage ceremony.

Notably, in Australia no one under the age of 16 can get married in any circumstances. If a person is aged 16 – 17 years old to be legally married, they need permission from a Judge and their parents.

A ‘marriage’ is also defined to encapsulate those recognised under a law of a foreign country as well as those that are void or invalid due to a party to the marriage not freely or fully consenting (i.e., due to natural, induced or age‑related incapacity) or a party being married to more than one person.

It is an offence to cause a person to enter into a forced marriage, as well as to be a party to a forced marriage (where you are not considered a ‘victim’ of the forced marriage).

Therefore, the offence of ‘forced marriage’ can apply to:

  • legally recognised marriages, as well as cultural or religious ceremonies and registered relationships,
  • marriages occurring in Australia (including where the person is brought to Australia to be married), as well as where a person is taken overseas to be married, and
  • the conduct of any person involved in bringing about the forced marriage, including family members, friends, wedding planners and marriage celebrants (i.e., ‘causing it’).

A maximum penalty of 7 years imprisonment is applicable, which raises to 9 years imprisonment where the offence is considered ‘aggravated’.

It will be characterised as aggravated where the victim is under 18, has been subjected to cruel, inhuman, or degrading treatment, and the offender engaged in conduct that gives rise to a danger of death or serious harm to the victim or another, whilst being reckless to that danger.

The offence of ‘forced marriage’ does not apply to arranged marriages (i.e., where the spouses are brought together by a third party or family member to marry) where both parties have consented to marry and sham marriages (i.e., a fake marriage entered into for fraudulent purposes) if this is willingly entered into by both parties.

Published on 07/02/2024

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AUTHOR Poppy Morandin

Poppy Morandin is the managing law clerk and an integral part of the team of criminal lawyers at Criminal Defence Lawyers Australia . She's also a part of CDLA's content article production team. Poppy is passionate about law reform and criminal justice.

View all posts by Poppy Morandin